United Site Services of California, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2020

369 N.L.R.B. 137 (N.L.R.B. 2020)

369 NLRB No. 137
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board, Washington, D.C. 20570, of
any typographical or other formal errors so that corrections can be in-
cluded in the bound volumes.
1
United Site Services of California, Inc. and Teamsters
Local 315, IBT. Cases 20–CA–139280 and 20–
CA–149509
July 29, 2020
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On April 3, 2017, Administrative Law Judge Dickie
Montemayor issued the attached supplemental decision.1
The Respondent filed exceptions and a supporting brief,
the General Counsel and the Charging Party each filed
cross-exceptions and a supporting brief, and all parties
filed answering briefs and reply briefs.2
The National Labor Relations Board has considered the
judge’s supplemental decision and the record in light of
the exceptions,3 cross-exceptions, and briefs and has de-
cided to affirm the judge’s rulings, findings,4 and conclu-
sions only to the extent consistent with this Supplemental
Decision and Order.5
I. OVERVIEW
This case arises from the Respondent’s permanent re-
placement of economic strikers and subsequent with-
drawal of recognition from the Union. On March 17,
2016, the judge issued his initial decision in this proceed-
ing, finding that the Respondent had an “independent un-
lawful purpose” within the meaning of Hot Shoppes, Inc.,
1 On March 14, 2016, the United States District Court for the Eastern
District of California issued a temporary injunction under Sec. 10(j) of
the National Labor Relations Act, ordering the Respondent, inter alia, to
resume recognizing and bargaining with the Union and offer reinstate-
ment to former strikers who had not received valid offers. Frankl v.
United Site Services of California, Inc., 2016 WL 1237827 (E.D. Cal.
Mar. 14, 2016). By order dated August 10, 2018, the court vacated the
injunction order in light of the Union’s disclaimer of interest in repre-
senting the bargaining unit and the Respondent’s compliance with the
affirmative provisions of the order.
2 By joint motion dated January 24, 2020, the General Counsel and
the Charging Party withdrew their cross-exceptions urging the alteration
of extant Board law regarding the permanent replacement of economic
strikers. See American Baptist Homes of the West d/b/a Piedmont Gar-
dens, 364 NLRB No. 13 (2016), reconsideration denied 364 NLRB No.
95 (2016).
3 The Respondent has excepted to the judge’s failure to address its
Motion to Strike Portions of the General Counsel’s Post-Hearing Brief.
However, the Respondent provided no argument in support of this ex-
ception. Accordingly, we will disregard the bare exception under Sec.
102.46(a)(1)(ii) of the Board’s Rules and Regulations. See Holsum de
Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265
(1st Cir. 2006).
146 NLRB 802, 805 (1964), for hiring permanent replace-
ments and, as a result, that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to immediately
reinstate the strikers upon their unconditional offer to re-
turn to work.6 The judge additionally found that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union.
After the judge issued his decision, the Board issued
American Baptist Homes of the West d/b/a Piedmont Gar-
dens, supra, 364 NLRB No. 13, in which it defined and
applied the “independent unlawful purpose” exception of
Hot Shoppes. On November 3, 2016, by unpublished Or-
der, the Board remanded the judge’s decision for further
consideration in light of Piedmont Gardens. The Board
also instructed the judge to make credibility resolutions,
findings of fact, and conclusions of law as to certain com-
plaint allegations that were not addressed in the judge’s
initial decision and could impact the analysis of the Re-
spondent’s motive for hiring permanent replacements. Fi-
nally, the Board instructed the judge to reevaluate the
withdrawal of recognition allegation in light of any viola-
tions found.
In his supplemental decision, the judge found that the
Respondent effectively discharged 14 strikers in violation
of Section 8(a)(3) and (1) of the Act by falsely claiming
that 12 replacements were permanent, failing to recall a
striker when a replacement failed a background check, and
temporarily transferring a nonstriking unit employee into
a new unit classification. The judge also found that the
Respondent violated Section 8(a)(3) and (1) of the Act by
removing five strikers from consideration for preferential
The Respondent has requested oral argument and amicus briefing.
The request is denied as the record, exceptions, cross-exceptions, and
briefs adequately present the issues and positions of the parties.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings. In addition, some of the Respondent’s exceptions
imply that the judge's rulings, findings, and conclusions demonstrate bias
and prejudice. On careful examination of the judge’s supplemental deci-
sion and the entire record, we are satisfied that the Respondent's conten-
tions are without merit.
5 We shall amend the judge’s conclusions of law and remedy and
modify his recommended Order to conform to the violations found and
the Board’s standard remedial language, and in accordance with our de-
cisions in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020),
and King Soopers, Inc., 364 NLRB No. 93 (2016). We shall substitute a
new notice to conform to the Order as modified.
6 In Hot Shoppes, the Board held that an employer’s motive for per-
manently replacing economic strikers “is immaterial, absent evidence of
an independent unlawful purpose.” Id. The Board did not address what
would qualify as an “independent unlawful purpose.”
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recall after tendering to them invalid offers of reinstate-
ment.
Relying, in part, on these violations, the judge reaf-
firmed his earlier findings that the Respondent had an “in-
dependent unlawful purpose” for hiring permanent re-
placements and that it therefore violated Section 8(a)(3)
and (1) of the Act by failing to immediately reinstate all
of the strikers upon their unconditional offer to return to
work. The judge also reaffirmed his earlier finding that
the Respondent violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from the Union.
We affirm, with some modifications and clarifications
explained below, the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) of the Act by falsely
claiming that three replacements were permanent, failing
to recall a striker when a replacement failed a background
check, temporarily transferring a nonstriking unit em-
ployee into a new unit classification, and removing three
strikers from consideration for preferential recall for fail-
ing to respond to or rejecting invalid offers of reinstate-
ment.7 We also affirm the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union. However, for
the reasons discussed below, we reverse the judge’s find-
ings that the Respondent violated Section 8(a)(3) and (1)
of the Act by falsely claiming that 9 replacements were
permanent and by removing 2 strikers from consideration
for preferential recall. Finally, we reverse the judge’s
findings that the Respondent had an “independent unlaw-
ful purpose” for permanently replacing the strikers and
that it therefore violated Section 8(a)(3) and (1) of the Act
by refusing to immediately reinstate all of the strikers
upon their unconditional offer to return to work.
II. UNFAIR LABOR PRACTICES
A. Alleged Unlawful Discharge of Strikers by Hiring
Sham Permanent Replacements
1. Background
The Respondent is engaged in the rental and servicing
of portable toilets and temporary fencing at multiple facil-
ities throughout the United States. On January 7, 2014,8
the Union was certified as the collective-bargaining
7 In addition, we find that the Respondent violated Sec. 8(a)(3) and
(1) by failing to timely recall a striker to fill a vacancy created by the
departure of a permanent replacement. The judge failed to address this
allegation in his supplemental decision.
8 All dates are in 2014 unless otherwise noted.
9 The parties stipulated that the Respondent also uses the following
job titles to encompass work assignments in the unit: Service Driver,
Senior Service Technician, Utility Driver, Yard Associate, Fence Driver,
and Fence Helper.
representative of the Respondent’s service technicians,
pick-up and delivery drivers, mechanics, laborers, and
fence installers employed at its Benicia, California facil-
ity.9 From February 26 to July 9, the Union and the Re-
spondent negotiated unsuccessfully for an initial collec-
tive-bargaining agreement. Frustrated with the lack of
progress in negotiations, the unit employees commenced
an economic strike on October 6. Twenty-one of the 25
unit employees participated in the strike. Before they
voted to strike, the unit employees were informed that they
could be permanently replaced.
The Respondent continued operations using supervi-
sors, managers, and employees from other facilities. Ad-
ditionally, on the first day of the strike, the Respondent
began making verbal and written offers of employment as
a permanent replacement for a striker to employees on
loan from other facilities, employees referred by tempo-
rary employment agency Labor Finders, and new direct
hires. The Respondent did not inform the Union that it
was hiring permanent replacements until October 16. On
that date, the Respondent notified the Union that all the
strikers had been permanently replaced. On October 17,
the Union made an unconditional offer on behalf of the
strikers to return to work. On October 18, the Respondent
advised the Union that no unit positions were available
and that it had placed the strikers on a preferential recall
list.
2. Legal Standard
In the absence of a “legitimate and substantial business
justification,” strikers are entitled to immediate reinstate-
ment to their prestrike or substantially equivalent posi-
tions upon making an unconditional offer to return to
work.10 An employer that fails to prove that its failure to
reinstate strikers was due to a legitimate and substantial
business justification “is guilty of an unfair labor prac-
tice.”11
An employer’s permanent replacement of economic
strikers as a means of continuing its business operations is
a legitimate and substantial business justification for de-
clining to reinstate those strikers.12 The employer, how-
ever, bears the burden of proving the permanent status of
the replacements.13 In order to meet that burden, “the
10 Laidlaw Corp., 171 NLRB 1366, 1368 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970), citing NLRB v. Fleet-
wood Trailer Co., 389 U.S. 375 (1967).
11 Fleetwood Trailer, 389 U.S. at 378.
12 Id. at 379; NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333,
345–346 (1938). See also Piedmont Gardens, 364 NLRB No. 13, slip
op. at 3; Hot Shoppes, 146 NLRB at 805.
13 Augusta Bakery Corp., 298 NLRB 58, 65 (1990) (“[I]t is Respond-
ent's burden to prove its affirmative defense, raised in its answer, that the
alleged discriminatees were permanently replaced.”), enfd. 957 F.2d
1467 (7th Cir. 1992); Hansen Bros. Enterprises, 279 NLRB 741, 741
UNITED SITE SERVICES OF CALIFORNIA, INC. 3
employer must show a mutual understanding between it-
self and the replacements that they are permanent.”14
Thus, the employer must present specific evidence of the
circumstances of the replacements’ hiring to show that
they “‘were regarded by themselves and [the employer] as
having received their jobs on a permanent basis.’”15 Ab-
sent such proof, the Board presumes that replacements are
temporary.16 An employer that falsely informs strikers
that they have been permanently replaced violates Section
8(a)(3) and (1) of the Act because the effect of that action
is to withhold from the strikers “the right to return to their
unoccupied jobs simply because they have gone out on
strike.”17
3. Analysis
As discussed above, the judge found that the Respond-
ent falsely claimed that 12 replacements were permanent,
thereby effectively discharging an equal number of strik-
ers. In its exceptions, the Respondent contends that the
judge ignored extensive documentary and testimonial ev-
idence that contradicts his findings of fact and conclusions
of law. Specifically, the Respondent contends that the
judge failed to discuss or adequately articulate his ra-
tionale for rejecting (i) a log created by Human Resources
Manager Agueda Halley documenting the date and time
that replacements accepted verbal offers of employment,
and (ii) written offers of permanent employment signed by
the replacements.
We find no merit in the Respondent’s exceptions based
on the judge’s failure to consider the log. Human Re-
sources Manager Halley testified that she created the log
based on personal knowledge regarding verbal offers of
permanent employment that she made and information re-
ported to her by Regional Vice President Michael Witt and
Area Manager Steve Gutierrez regarding verbal offers that
they made. However, the Respondent presented very little
evidence regarding the nature of the verbal offers. Halley
did not describe, even in general terms, what she, Witt, or
(1986), enfd. mem. 812 F.2d 1443 (D.C. Cir. 1987), cert. denied 484 U.S.
845 (1987); Associated Grocers, 253 NLRB 31, 31 (1980) (permanent
replacement “is an affirmative defense and [r]espondent has the burden
of proof”), enfd. 672 F.2d 892 (D.C. Cir. 1981), cert. denied 459 U.S.
825 (1982).
14 Hansen Bros., 279 NLRB at 741 (emphasis in original).
15 Consolidated Delivery & Logistics, 337 NLRB 524, 526 (2002),
enfd. 63 Fed. Appx. 520 (D.C. Cir. 2003) (quoting Target Rock Corp.,
324 NLRB 373, 373 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998)).
16 Hansen Bros., 279 NLRB at 741; Montauk Bus Co., 324 NLRB
1128, 1138 (1997) (presuming temporary status where testimony of em-
ployer’s witnesses was conclusory and lacked weight and was unsup-
ported by testimony of replacements, and stating that “[w]here replace-
ments are hired for striking employees, the Board has held that the pre-
sumption is that replacements are temporary”); O.E. Butterfield, Inc.,
319 NLRB 1004 (1995) (holding that in both representation and unfair
Gutierrez said to the replacements when making verbal of-
fers or how the replacements responded, and the Respond-
ent did not call any of the replacements to testify.18 More-
over, the log itself does not indicate that the “offer[s]”
were for permanent employment: the word “permanent”
or a synonym of that word does not appear on the log. Un-
accompanied by specific evidence establishing that there
was a “mutual understanding” that the verbal offers were
for permanent employment, the log is not probative of the
replacements’ status.19
We do, however, find merit in the Respondent’s excep-
tions based on the judge’s failure to consider written offers
of permanent employment. The Respondent placed into
evidence letters offering and accepting permanent em-
ployment purportedly signed by all but three of the re-
placements at issue in this proceeding before the strikers
unconditionally offered to return to work on October 17.
The offer letters state:
You understand and agree that you have been advised
that a strike or other active labor dispute exists between
USS and Teamsters Local 315 at the Benicia location
and that the position offered is as a permanent
replacement for a striker who is presently on strike
against USS at the Benicia location. You further un-
derstand that, as a permanent replacement, if the strike
ends, you will not be displaced to make room for the
returning strikers . . . . [Emphasis in original.]
The acceptance letters, titled “ACCEPTANCE OF OFFER
OF EMPLOYMENT AS PERMANENT
REPLACEMENT,” state that the replacement “immedi-
ately” accepts employment as a “permanent replacement” for
a striker, and that the replacement “understand[s] that, as a
permanent replacement, if the strike ends I will not be dis-
placed to make room for the returning strikers . . . .” (Em-
phasis in original.)
The judge disregarded the offer and acceptance letters
because he found that the Respondent “retroactively
labor practice cases, presumption is that replacements for strikers are
temporary, overruling cases to the contrary).
17 American Linen Supply Co., 297 NLRB 137, 137 (1989), enfd. 945
F.2d 1428 (8th Cir. 1991).
18 Witt did not testify. Gutierrez testified that he made verbal offers
of permanent employment to replacements Desiree Martinez, Greg Bed-
does, and Nicolas Cermano-Hernandez. Gutierrez’ testimony is dis-
cussed below.
19 See Consolidated Delivery, 337 NLRB at 526 (holding that em-
ployer did not meet its burden of proving that replacements were perma-
nent where neither the replacements nor the employer’s officials testified
regarding their understanding of the nature of the replacements’ employ-
ment); Montauk Bus, 324 NLRB at 1138 (holding that employer did not
meet its burden of proving that replacements were permanent where the
testimony of employer’s witnesses was conclusory and unsupported by
testimony of replacements).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dated” offer and acceptance letters for replacement Greg
Beddoes in order to “obfuscate the true facts” of when
Beddoes was hired permanently in Benicia. The judge
further found that “[t]he evidence surrounding [Beddoes’
offer and acceptance letters] calls into question the verac-
ity of all of the letters that purport to document acceptance
of permanent positions.”
Contrary to the judge, we find that the evidence does
not establish that the Respondent “retroactively dated”
Beddoes’ offer and acceptance letters. The only dates on
the letters are the typewritten date of “October 10, 2014”
above the salutations, reflecting the date the letters were
prepared, and the date in Halley’s handwritten note in the
top right margin of the offer letter stating “Verbal Ac-
ceptance 10/10/14 @ 5:30 am,” neither of which purports
to be the date on which Beddoes signed the letters. Area
Manager Gutierrez testified, moreover, that Beddoes did
not sign the letters when they were first presented to him,
and the Respondent stipulated at the hearing that it did not
receive the letters with Beddoes’ signature until “after No-
vember 29.” Finally, the offer log, which was last updated
on November 29, contains a notation next to Beddoes’
name indicating that his offer and acceptance letters were
unsigned. Accordingly, the record does not support the
judge’s finding that the Respondent “retroactively dated”
Beddoes’ offer and acceptance letters. Because the
judge’s rationale for disregarding all the letters that pur-
port to document acceptance of permanent positions rests
on this flawed factual foundation, it must be rejected.
The judge cited an additional reason for disregarding of-
fer and acceptance letters purportedly signed by replace-
ments Richard Wilkerson and Nicolas Cermano-Hernan-
dez. The judge found that because the Respondent did not
call Wilkerson or Cermano-Hernandez to testify, there
was insufficient credible evidence to establish that their
signatures were genuine. We disagree. First, no party ar-
gued before the judge that the replacements’ signatures
were not authentic or came forward with evidence at the
hearing attacking the genuineness of their signatures. Sec-
ond, the offer and acceptance letters were received into
evidence on the testimony of Human Resources Manager
20 On voir dire, counsel for the General Counsel asked Halley, “What,
if any, steps did you take to assure yourself that . . . . the employees . . .
actually signed [the letters] and this is their signatures?” Halley an-
swered, “Most of [the letters] . . . were signed in our office in front of
me. Other[s] . . . were signed in front of Steve Gutierrez.” The judge
did not discuss Halley’s testimony, which was uncontroverted.
21 The judge did not discuss Gutierrez’ testimony, which was uncon-
troverted as to Cermano-Hernandez.
22 See Fed. R. Evid. 901(a) (“To satisfy the requirement of authenti-
cating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the propo-
nent claims it is.”). Rule 901 provides a non-exhaustive list of ten meth-
ods of authenticating evidence, including “Testimony of a Witness with
Halley and Area Manager Gutierrez. Halley testified that
the letters were obtained from the replacements’ personnel
files and that most of the letters were signed in front of
her,20 and Gutierrez testified that he witnessed Cermano-
Hernandez signing his offer and acceptance letters.21
Counsel for the General Counsel conducted voir dire ex-
amination of Halley and Gutierrez, and the judge admitted
the letters into the record without objection from any party
on authentication or other grounds. Finally, no reason ap-
pears in the record or the arguments of counsel to conclude
that the replacements’ signatures are not genuine. We
therefore find that the letters were properly authenticated
and should have been considered.22
We now turn to an examination of the status of the in-
dividual replacements at issue in this proceeding.
Desiree Martinez and Greg Beddoes
Desiree Martinez and Greg Beddoes were employed by
the Respondent at its Reno, Nevada facility before the
strike.23 They worked at the Benicia facility as service
technicians from about October 7 to about October 30, and
then returned to their previous positions at the Reno facil-
ity. Around November 10, they went back to the Benicia
facility at the request of the Respondent. Martinez’ sec-
ond period of employment in Benicia lasted only until No-
vember 14, after which she resumed her employment in
Reno. Beddoes continued working alternately in Benicia
and Reno until December, when he transferred to Benicia
permanently.
The judge found, and we agree, that Martinez and Bed-
does were not bona fide permanent replacements based on
their credited testimony together with other evidence dis-
cussed below. Martinez testified that no one described her
position in Benicia as permanent and she did not under-
stand it to be permanent, either the first or the second time
she agreed to work there. Martinez further testified that
during her second period of employment in Benicia,
Gutierrez asked her several times if she wanted to transfer
to Benicia permanently. The first time he asked, she
Knowledge.” Fed. R. Evid. 901(b). See also RC Aluminum Industries,
Inc., 343 NLRB 939, 940 fn. 7 (2004) (finding that copy of paycheck
was properly authenticated where it was introduced into evidence as a
document from employee’s personnel file); Amber Delivery Service,
Inc., 250 NLRB 63, 65 (1980) (authorization cards authenticated by tes-
timony of employees who witnessed their actual signing), enf. denied in
part on other grounds 651 F.2d 57 (1st Cir. 1981).
Member Emanuel joins his colleagues in finding that the letters should
be considered for the reasons set forth above. In addition, Member
Emanuel notes that the Respondent provided evidence that most letters
were received prior to the strikers’ unconditional offer to return to work.
23 Martinez is Beddoes’ daughter.
UNITED SITE SERVICES OF CALIFORNIA, INC. 5
thought he was joking, but he asked again and she told him
“no” because her family lives in Reno.24
Beddoes similarly testified that no one told him the po-
sition in Benicia was permanent. Beddoes further testified
that “a couple of weeks” after he first arrived in Benicia
or “maybe less,” Gutierrez asked if he wanted to transfer
to Benicia permanently, and he responded that he “had to
think about that.”25 Gutierrez repeated the offer “several
times” before Beddoes finally agreed and signed a letter
in December accepting the position effective January 5,
2015.
The Respondent argues on exceptions that the judge
erred by crediting Martinez’ and Beddoes’ testimony
without considering countervailing evidence proffered by
the Respondent, including testimony by Gutierrez that
Martinez and Beddoes accepted verbal offers to transfer
permanently to Benicia on October 8 or 9, and the offer
log, which indicates that they accepted verbal offers on
October 10.26 We find no merit in the exceptions. Even
though the judge did not explicitly address Gutierrez’ tes-
timony that Martinez and Beddoes verbally agreed to
transfer to Benicia permanently, we find that by crediting
Martinez’ and Beddoes’ testimony, the judge implicitly
discredited Gutierrez' testimony.27 Martinez’ and Bed-
does’ testimony is corroborated by, among other things,
(i) their pattern of alternating between Benicia and Reno,
(ii) Gutierrez’ testimony that Martinez and Beddoes de-
clined when asked to sign written offers to transfer perma-
nently to Benicia, and (iii) the fact that the Respondent
paid for Martinez’ and Beddoes’ food, transportation, and
lodging while they worked in Benicia and that the Re-
spondent was still paying Beddoes’ expenses at the time
of the hearing, 10 months after the strike ended.28 We thus
affirm the judge’s findings that the Respondent failed to
meet its burden of establishing a “mutual understanding”
that Martinez and Beddoes were permanent replacements.
24 We take administrative notice that Reno is located approximately
192 miles from Benicia. The distance is taken from Google Maps. See
generally Bud Antle, Inc., 359 NLRB 1257, 1257 fn. 3 (2013) (taking
administrative notice of distance between two cities based on Google
Maps), reaffirmed and incorporated by reference 361 NLRB 873 (2014).
25 On redirect, Beddoes testified somewhat inconsistently that “in [his]
mind” he accepted Gutierrez’ verbal offer “the first time [Gutierrez]
asked.” Counsel for the General Counsel subsequently read into the rec-
ord a portion of Beddoes’ December 2014 prehearing affidavit, in which
Beddoes testified that “[Gutierrez] asked me several times if I would like
to transfer. I thought at first he was kidding, but he kept asking me. This
last time [Gutierrez] asked me again, and I agreed to transfer perma-
nently. I signed th[e] paperwork this last [T]hursday.”
The Respondent argues on exception that the judge erroneously cred-
ited Beddoes’ prehearing affidavit over his testimony at the hearing. We
find no merit in the exception. Under well-established Board precedent,
a judge may properly credit a witness’s prehearing affidavit over his or
her testimony at a hearing. See Capehorn Industry, Inc., 336 NLRB 364,
366 fn. 7 (2001), and cases cited therein. In any event, Beddoes’
Richard Wilkerson
Before the strike, Richard Wilkerson was employed by
the Respondent at its Santa Clara, California facility as a
quality assurance specialist working in the San Jose, Cal-
ifornia Field Operations Support Division. He worked in
Benicia as a pick-up and delivery driver from early Octo-
ber 2014 to early June 2015. The Respondent contends
that Wilkerson was a permanent replacement based on of-
fer and acceptance letters signed by him on October 14.
Neither Wilkerson nor the official who offered him per-
manent employment testified. The judge therefore found
that there was “insufficient credible evidence to establish
that . . . the person who signed the [offer and acceptance]
letter[s] was in fact him.” The judge further found that
Wilkerson himself understood that his assignment in
Benicia was temporary, based on the testimony of former
Lead Dispatcher Ana Flores that Wilkerson asked her sev-
eral times “when he was going back to Santa Clara.”29 The
judge found additional support for the conclusion that
Wilkerson was not a bona fide permanent replacement in
his return to Santa Clara as a quality assurance specialist
in June 2015. Finally, the judge observed that Wilkerson’s
timecard records continued to indicate that he was work-
ing at his original site for months after he purportedly ac-
cepted a permanent transfer to Benicia.30
We find, contrary to the judge, that the Respondent met
its burden of establishing a “mutual understanding” that
Wilkerson’s employment in Benicia was intended to be
permanent. Wilkerson signed letters stating that he “im-
mediately” accepted employment as a “permanent re-
placement” for a striker and acknowledging that he “[un-
derstood] that, as a permanent replacement, if the strike
ends [he] will not be displaced to make room for the re-
turning strikers . . . .” Although the judge found the evi-
dence insufficient to establish that Wilkerson signed the
letters, the Respondent properly authenticated the letters,
testimony that he accepted Gutierrez’ offer of permanent employment
“in [his] mind,” without communicating his acceptance to Gutierrez,
does not establish the required mutual understanding.
26 For the reasons discussed above, the offer log is not probative of the
replacements’ status.
27 See, e.g., Kankakee County Training Center for the Disabled, Inc.,
366 NLRB No. 181, slip op. at 1 fn. 3 (2018); Advanced Masonry Asso-
ciates, LLC d/b/a Advanced Masonry Systems, 366 NLRB No. 57, slip
op. at 5 (2018), enfd. 781 Fed. Appx. 946 (11th Cir. 2019).
28 We do not rely on the other factors cited by the judge in support of
his determination that Beddoes was not a bona fide permanent replace-
ment, including, inter alia, the judge’s findings that the Respondent back-
dated Beddoes’ offer and acceptance letters.
29 Flores testified that she relayed Wilkerson’s question to Gutierrez
two or three times and Gutierrez responded, “I don’t know.”
30 The Respondent’s timecard reports continued to indicate that
Wilkerson was working at the “SJO” site until January 5, 2015, when they
were changed to indicate that Wilkerson was working as a “Service Tech-
nician” at the “BEN” site.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and no party came forward with evidence at the hearing
attacking the genuineness of Wilkerson’s signature. In our
view, moreover, the countervailing evidence cited by the
judge, including Flores’ testimony,31 Wilkerson’s even-
tual return to Santa Clara, and the Respondent’s failure to
update Wilkerson’s timecard records,32 is insufficient to
overcome the unambiguous language of the offer and ac-
ceptance letters. We thus find that Wilkerson was a per-
manent replacement.
Nicolas Cermano-Hernandez
For 5 years prior to the strike, Nicolas Cermano-Her-
nandez was employed by the Respondent as a seasonal
temporary service technician. He worked in Benicia as a
service technician from early October 2014 to early March
2015. The Respondent contends that Cermano-Hernandez
was a permanent replacement based on offer and ac-
ceptance letters purportedly signed by him on October 16.
Cermano-Hernandez did not testify. The judge there-
fore found that “there is insufficient evidence in the record
to establish that in fact he actually signed the acceptance
letter.” The judge further found that Cermano-Hernandez
at all times remained a seasonal employee based on (i) the
testimony of former lead dispatcher Flores that sometime
in December, Cermano-Hernandez told her that “his work
was done” and he was returning to Mexico, (ii) an Em-
ployee Separation Notice, which states that he voluntarily
resigned due to “personal reasons” effective March 6,
2015, (iii) the fact that he was rehired as a seasonal em-
ployee in Sacramento, California, in June 2015, and (iv)
the fact that, on his Sacramento application, he wrote “lay
off” as his reason for leaving the position in Benicia. The
judge found that “a reasonable and logical inference to be
drawn from this evidence” is that Cermano-Hernandez
worked in Benicia in the same capacity as he had worked
in prior years, i.e., as a seasonal worker, and that he was
laid off from Benicia because he was a seasonal worker.
Contrary to the judge, we find that the offer and ac-
ceptance letters are sufficient to establish a “mutual under-
standing” that Cermano-Hernandez’ employment in Beni-
cia was intended to be permanent. Although the judge
found that there is insufficient evidence to establish that
Cermano-Hernandez signed the letters, the letters were
properly authenticated, no one challenged the authenticity
of Cermano-Hernandez’ signature, and Gutierrez testified
that he witnessed Cermano-Hernandez signing the letters.
31 The record does not reveal whether Flores’ conversations with
Wilkerson about returning to Santa Clara occurred before or after he ac-
cepted the Respondent’s written offer of permanent employment in Beni-
cia on October 14.
32 Gutierrez testified that the Respondent’s payroll department (which
is located on the East Coast) was slow to update department designations
and that his own payroll record erroneously listed his home department
The judge did not discuss Gutierrez’ testimony, which was
uncontroverted as to Cermano-Hernandez.
The judge’s finding that Cermano-Hernandez at all
times remained a seasonal employee is also undermined
by Cermano-Hernandez’ prior pattern of seasonal employ-
ment from early spring to late fall, which corresponds with
the Respondent’s busy season. In contrast, Cermano-Her-
nandez’ employment in Benicia began in October, when
his seasonal employment usually ended, and continued
until March 6, 2015. Given that his employment in Beni-
cia lasted until March, moreover, Flores’ testimony that
Cermano-Hernandez told Flores in December that “his
work was done” and he was returning to Mexico does not
support an inference that he was a seasonal employee. Ra-
ther, her testimony is consistent with the fact that
Cermano-Hernandez took a 3-week vacation at the end of
December, as shown in his employment records. We ac-
cordingly find that Cermano-Hernandez was a permanent
replacement.
Lester Moreno
Lester Moreno was referred by Labor Finders during the
strike, but he never worked for the Respondent. He be-
came impatient while waiting for his background check to
be completed and accepted other employment. The Re-
spondent contends that Moreno was a permanent replace-
ment based on the offer log, which indicates that he ac-
cepted a verbal offer for a yard associate position on Oc-
tober 16, and offer and acceptance letters signed by
Moreno on October 18. Neither Moreno nor the official
who offered him permanent employment testified.
The judge found that the Respondent failed to establish
that Moreno was a permanent replacement. We agree.
Aside from the offer log, which we have found is not pro-
bative, the Respondent failed to adduce any evidence that
Moreno accepted an offer of permanent employment be-
fore the strikers unconditionally offered to return to work
on October 17.33 We therefore affirm the judge’s finding
that Moreno was not a permanent replacement.
Antoine Frazer
On October 17, at 7:20 a.m., Antoine Frazer accepted a
written offer of permanent employment with a tentative
start date of October 24. Consistent with the Respondent’s
practice applicable to all new hires, Frazer’s offer letter
stated that “[a]s a condition of employment . . . you are
and work location as Modesto, California—a branch he had not worked
at for more than 2 years. The judge did not discuss Gutierrez’ testimony,
which is uncontroverted and corroborated in part by Halley.
33 In discussing Moreno’s status, the judge inadvertently stated that
the strikers offered to return to work on March 17, rather than October
17.
UNITED SITE SERVICES OF CALIFORNIA, INC. 7
required to pass a post-offer, pre-employment . . . back-
ground check.” Frazer’s initial background check re-
vealed an outstanding warrant. On an unspecified date
prior to November 18, the Respondent afforded him an
opportunity to clear the warrant and pass a second back-
ground check. Frazer did not begin working for the Re-
spondent until December 8, after the second background
check was completed.
The judge found, and we agree, that the Respondent vi-
olated Section 8(a)(3) and (1) of the Act by failing to recall
a striking yard associate when Frazer’s first background
check revealed an active warrant. Although permanent re-
placements may be hired subject to certain conditions be-
ing met,34 Frazer failed to meet a condition of his employ-
ment: “pass[ing] a post-offer, pre-employment . . . back-
ground check.” In its exceptions, the Respondent con-
tends that there is no evidence that an active warrant dis-
qualifies an applicant for hire. However, that fact may
reasonably be inferred from the Respondent’s perfor-
mance of a second background check and the fact that Fra-
zer did not begin working until December 8, after the sec-
ond background check was completed, even though his of-
fer letter listed a tentative start date of October 24.35 We
thus affirm the judge’s finding that the Respondent was
required to recall a striker to the vacancy created when
Frazer failed to pass the initial background check.
Oscar Reyes-Perusquia
Unit employee Oscar Reyes-Perusquia was a fence
driver who crossed the picket line and worked during the
strike. The parties stipulated that Reyes-Perusquia was
“claimed by [the Respondent] to have continued working
during and after the October 2014 strike in [his] Benicia
unit Position[]—Fence Driver.”36 However, the Respond-
ent’s own records reveal that between October 17, when
the strike ended, and December 19, Reyes-Perusquia per-
formed service technician work 38 out of 46 weekdays,
and there is no evidence that he performed fence driving
34 See generally Solar Turbines Inc., 302 NLRB 14, 14–17 (1991),
and cases cited therein, affd. mem. sub nom. Machinists v. NLRB, 8 F.3d
27 (9th Cir. 1993).
35 The Respondent does not contend that it routinely allows applicants
a second opportunity to pass a background check. As noted by the judge,
moreover, the Respondent offered no evidence that Frazer in fact passed
the second background check.
36 In contrast, the parties stipulated that nonstriking unit employees
Michael Knutsen and Javier Santiago permanently transferred to new
unit classifications during the strike. Unlike Reyes-Perusquia, Knutsen,
and Santiago signed letters acknowledging their acceptance of a position
as a permanent replacement for a striker.
37 The judge credited the testimony of former Dispatcher Flores that
fence drivers do not typically perform service technician work. The Re-
spondent contends that the judge erred by crediting Flores’ testimony and
by failing to consider or credit Gutierrez’ contrary testimony that fence
drivers are cross-trained to perform service technician work. We find it
or any other work during that period. 37 On these facts, we
affirm the judge’s finding that the Respondent violated
Section 8(a)(3) and (1) of the Act by continuing to assign
Reyes-Perusquia service technician work instead of rein-
stating a service technician upon the strikers’ uncondi-
tional offer to return to work.38
The Labor Finders Hires
As indicated above, the Respondent contracted with
temporary employment agency Labor Finders to provide
replacement employees during the strike. During the pe-
riod of October 6 through 16, the following seven individ-
uals referred by Labor Finders accepted written offers of
employment as permanent replacements for strikers: Paul
Barron, Chris Orr, James Matthews, Joshua Johnson,
Jesse Hernandez, Maurice Espinoza, and Anthony Boat-
man. Consistent with the Respondent’s policy applicable
to all new hires, their employment was conditioned on
passing a posthire background check and drug screen. The
replacements remained on Labor Finders’ payroll until
their background check and drug screen were completed,
and they were then transferred to the Respondent’s pay-
roll.39 While the replacements were on Labor Finders’
payroll, their timesheets included the following language:
“All temporary employees assigned to Customer by LF
(‘LF Personnel’) are employees of LF. LF is responsible
for hiring, assigning, disciplining, terminating and/or re-
assigning LF Personnel; and, is solely responsible for es-
tablishing, providing, and paying wages and benefits to LF
Personnel.”
The judge found that the Respondent failed to meet its
burden of establishing that the Labor Finders hires were
permanent replacements because their timesheets contin-
ued to state that they were “temporary employees” and
they continued to be paid by Labor Finders after the strik-
ers unconditionally offered to return to work. We disa-
gree. Under longstanding Board precedent, the ac-
ceptance of an offer of permanent employment effectuates
unnecessary to resolve this conflict because the Respondent’s records
show that Reyes-Perusquia performed service technician work on a
fulltime or near fulltime basis for the first 9 weeks after the strike ended,
not “strictly on a temporary, intermittent basis” as argued by the Re-
spondent in its brief.
38 See generally MCC Pacific Valves, 244 NLRB 931, 933-934
(1979); H & F Binch Co., 188 NLRB 720, 723 fn. 4 (1971) (unlawful
not to reinstate strikers to position occupied by temporary transferees at
conclusion of strike), enf. denied in relevant part 456 F.2d 357 (2d Cir.
1972). The Second Circuit declined to enforce the Board’s order in H &
F Binch because it found that the respondent had met its burden of estab-
lishing a mutual understanding that the transfers were intended to be per-
manent. Id. In this case, in contrast, the Respondent stipulated that
Reyes-Perusquia was “claimed by [it] to have continued working during
and after the October 2014 strike in [his] Benicia unit Position[]—Fence
Driver.”
39 The last transfer occurred on October 27.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the permanent replacement of a striker even if the striker
requests reinstatement before the replacement actually be-
gins to work. See, e.g., Consolidated Delivery, 337 NLRB
at 526 fn. 5 (citing Solar Turbines, 302 NLRB at 15–16)
(“[S]o long as the replacement workers and the respondent
intended that the workers’ employment not terminate at
the conclusion of the strike, the fact that the replacements
had yet to complete . . . post interview tests at the conclu-
sion of the strike did not render them temporary workers
subject to discharge.”).
Harvey Manufacturing,40 cited by the judge, is distin-
guishable. In Harvey Manufacturing, replacement em-
ployees referred by a temporary employment agency were
told during job interviews that the openings were for per-
manent positions and that those hired would be converted
to permanent employees on completion of a 30-day pro-
bationary period.41 However, they were subsequently re-
quired to sign a document titled “Temporary Agreement,”
which began with the statement: “I will be working as
a temporary . . . .”42 In addition, they received an expla-
nation of terms and conditions of employment that began
with the statement: “You will be working for us as a tem-
porary employee . . . .”43 The Board therefore found that
the replacements “received an array of mixed signals: oral
statements asserting to them their status as permanent em-
ployees, contradicted by documents given to them consist-
ently stating that they were temporary hires.”44
In this case, in contrast, the replacements referred by
Labor Finders signed letters stating that they were “imme-
diately” accepting employment as a “permanent replace-
ment” for a striker, and acknowledging that, “as a perma-
nent replacement, if the strike ends I will not be displaced
to make room for the returning strikers . . . .” (Emphasis
in original.) The letters also stated that their employment
was conditioned on passing a background check and drug
screen. Although the replacements remained on Labor
Finders’ payroll and signed timesheets stating that “[a]ll
temporary employees assigned to Customer by LF (‘LF
Personnel’) are employees of LF” until their background
check and drug screen were completed, this would not
give rise to confusion regarding their status given the un-
equivocal language of the offer and acceptance letters
quoted above. Rather, the Respondent and the replace-
ments would have reasonably understood that the replace-
ments’ employment was intended to be permanent and
was conditioned only on successful completion of the Re-
spondent’s post-hire screening process. Accordingly, we
find that the Respondent met its burden of establishing that
40 309 NLRB 465 (1992).
41 Id. at 467.
42 Id.
the seven Labor Finders hires were permanent replace-
ments.
Jorge Recinos
On October 6, Jorge Recinos accepted a written offer of
permanent employment as a replacement for a striker.
Recinos worked only 2 days, October 13 and 14. On the
evening of October 14, Recinos emailed the Respondent
that he was going to El Salvador to attend to a family
emergency. The Respondent then placed him on “Unpaid
Personal” leave. On October 29, Human Resources Man-
ager Halley sent Recinos an email asking whether he was
back in the United States and indicating that there was an
immediate need for his services. On October 30, Recinos
responded that he had returned to the United States but,
for reasons he did not explain, he could not return to work
until November 10. The Respondent then allowed
Recinos to linger on “Unpaid Personal” leave for the
weeks of October 27, November 3 and 10. On November
13, Halley sent Recinos an email stating that it was “ur-
gent” that she know whether he was returning to work. On
November 14, Recinos replied that he was not returning.
Halley testified that she understood from his email that
Recinos was resigning his employment. The Respondent
nevertheless retained Recinos on “Unpaid Personal” leave
through the week of November 17, and it did not recall a
striking service technician to the vacancy created by his
departure until January 9, 2015.
The judge did not address Recinos’s status in his sup-
plemental decision. The General Counsel cross-excepts to
the judge’s failure to find that the Respondent’s holding
of Recinos’s position open for him after October 14 was a
sham intended to avoid the obligation to reinstate a former
striker. The General Counsel further contends that, at the
very least, the record is clear that Recinos left the Re-
spondent’s employ as of November 14 and that his depar-
ture created a vacancy under Laidlaw, 171 NLRB at 1368.
We find that the Respondent met its burden of establish-
ing that Recinos was a permanent replacement. As dis-
cussed above, Recinos signed a letter accepting permanent
employment before the strikers unconditionally offered to
return to work. We agree with the General Counsel, how-
ever, that the Respondent was required to recall a striker
to fill the vacancy created by Recinos’s departure. The
Respondent contends that its business is “subject to sea-
sonal fluctuations and other extraneous factors” that re-
quire it to “constantly readjust the staffing of its work-
force” to accommodate changing customer needs and that
“a striking worker was recalled in accordance with th[o]se
43 Id.
44 Id. at 468.
UNITED SITE SERVICES OF CALIFORNIA, INC. 9
needs soon after Recinos resigned.” However, Halley’s
October 29 and November 13 emails to Recinos and the
Respondent’s continued assignment of service technician
work to fence driver Reyes-Perusquia after November 14
demonstrate that the Respondent had an immediate need
for a service technician.45 The Respondent therefore vio-
lated Section 8(a)(3) and (1) of the Act by failing to timely
recall a striker to the vacancy created when Recinos re-
signed.
B. Alleged Unlawful Removal of Strikers from Consider-
ation for Preferential Recall
1. Background
As indicated above, on October 17 the Union, on behalf
of the strikers, made an unconditional offer to return to
work. By email on October 18, the Respondent advised
the Union that no unit positions were available and that it
had placed the strikers on a preferential recall list. In the
same email, the Respondent requested up-to-date contact
information for the strikers. Thereafter, on October 22,
the Respondent provided the Union with the addresses and
telephone numbers of record for each striker, and it re-
quested that the Union “contact the employees . . . and let
us know as soon as possible if there are any updates or
corrections . . . or if there is a better way to reach them.”
On October 23, the Union replied that it would “confirm
the correct addresses and provide updates as necessary.”
On October 27, the Union provided some updated contact
information.46
Thereafter, when a vacancy arose in a unit position, the
Respondent identified the two strikers with the highest
seniority who held the position or a substantially equiva-
lent position prior to the strike. The Respondent then at-
tempted to contact the two strikers using the telephone
numbers and addresses confirmed by the Union. The Re-
spondent also emailed copies of offer letters to the Union
until it withdrew recognition from the Union on March 27,
45 In any event, the Respondent’s bare assertion that it adjusted staff-
ing to meet customer needs is not sufficient to establish a legitimate and
substantial business justification for its failure to recall a former striker
to the vacancy created by Recinos’s departure. See, e.g., IMI South, LLC,
d/b/a Irving Materials, 364 NLRB No. 97, slip op. at 6 fn. 17 (2016).
46 The Union’s witness testified that the strikers “were very diligently
told” that “if you have any changes in your addresses, phone numbers to
let us know, and [the Respondent] would be advised.”
47 If a vacancy arose in a position for which the preferential recall list
had been exhausted, the Respondent offered the position to an unrecalled
striker who held a different position prior to the strike, with the under-
standing that the striker would still be eligible for preferential recall to
his former position. In addition, when there were no more strikers on the
preferential recall list, the Respondent began offering vacant positions to
strikers it had earlier removed from consideration for preferential recall.
48 Laidlaw, 171 NLRB at 1369–1370.
2015. If both strikers accepted the offer, the striker with
the most seniority was reinstated, and the less senior
striker remained eligible for preferential recall. If the most
senior striker declined or failed to timely respond to an of-
fer, the Respondent removed that striker from considera-
tion for preferential recall.47
2. Legal Standard
“[E]conomic strikers who unconditionally apply for re-
instatement at a time when their positions are filled by per-
manent replacements: (1) remain employees; and (2) are
entitled to full reinstatement upon the departure of re-
placements unless they have in the meantime acquired
regular and substantially equivalent employment, or the
employer can sustain his burden of proof that the failure
to offer full reinstatement was for legitimate and substan-
tial business reasons.”48 An offer of reinstatement need
not take any particular form, but it must be reasonably cal-
culated to communicate the offer. “In order for an em-
ployer to discharge his obligation to offer reemployment
to a striking employee who has unconditionally requested
reinstatement, the employer ‘must present probative evi-
dence showing a good-faith effort to communicate such an
offer [of reinstatement] to the employee . . . [and] must
show that [it] has taken all measures reasonably available
to [it] to make known to the striker that he is being invited
to return to work.’”49
3. Analysis
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by removing former strikers
Walter Buckner, Robert Harris, Ernesto Pantoja, Jorge
Rodriguez, and Daniel Ruiz from consideration for pref-
erential recall for failing to respond to or rejecting invalid
offers of reinstatement.50 We affirm the judge’s findings
regarding Buckner, Harris, and Pantoja. However, con-
trary to the judge, we find that the Respondent lawfully
49 Carruthers Ready Mix, Inc., 262 NLRB 739, 749 (1982) (quoting
J. H. Rutter-Rex Manufacturing Co., Inc., 158 NLRB 1414, 1524 (1966),
enfd. as modified 399 F.2d 356 (1968), modification reversed 396 U.S.
258 (1969)).
50 At the time the Respondent removed these strikers from considera-
tion for preferential recall, they were already victims, directly or through
a ripple effect, of the Respondent’s earlier unlawful refusal to reinstate
strikers to the positions occupied by Martinez, Beddoes, Moreno, and
Reyes-Perusquia immediately upon the strikers’ offer to return to work
and its failure to timely recall strikers to the vacancies created when Fra-
zer’s background check revealed an active warrant and Recinos resigned.
The parties did not litigate, and the judge did not decide, whether the
Respondent’s subsequent attempts to recall these or other strikers termi-
nated the strikers’ rights to reinstatement or tolled the Respondent’s
backpay obligations arising from its earlier unfair labor practices. We
leave those issues to be decided at the compliance stage of this proceed-
ing.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
removed Rodriguez and Ruiz from consideration for pref-
erential recall.
Walter Buckner
Walter Buckner was employed by the Respondent for
21 years. He was the second most senior service techni-
cian on the preferential recall list. On January 9, 2015, the
Respondent, by certified mail, sent Buckner an “uncondi-
tional offer of reinstatement” with a reporting date of Jan-
uary 20. The letter stated that the reporting date was “crit-
ical” and that the offer “may not be accepted” if Buckner
was not able to start on that date. The letter also stated that
the Respondent “must receive your response no later than
3:00 p.m. on 1/19/2015” or “the Company will assume
you do not want the position.” (Emphasis in original.)
Buckner did not receive the letter until Saturday, Janu-
ary 24, because he had recently moved and his mail was
being forwarded by the Postal Service.51 On January 24,
Buckner called Human Resources Manager Halley and
left a message on her voicemail indicating that he had
moved but had received the letter and wished to accept the
offer. On Monday, January 26, Buckner went to the Beni-
cia facility and gave Gutierrez the signed offer letter, and
Gutierrez faxed it to Halley. Later that day, Halley con-
tacted Buckner and told him that his response was un-
timely and the position was closed. The parties stipulated
that the Respondent removed Buckner from consideration
for preferential recall on January 19, 2015.
For two reasons, the judge found that the Respondent
violated Section 8(a)(3) and (1) of the Act by removing
Buckner from consideration for preferential recall. First,
he found that the Respondent violated its duty to act in
good faith by refusing to take into consideration the delay
caused by mailing the offer to the wrong address.52 Sec-
ond, the judge found that the lapsing language in the offer,
stating that “the company must receive your response no
later than 3:00 p.m. on 1/19/2015,” rendered the offer in-
valid.
51 Buckner testified that he notified the Respondent’s payroll depart-
ment of his change of address sometime in early January, but the record
does not reveal whether he did so before or after January 9, when the
offer of reinstatement was mailed.
52 See Esterline Electronics Corp., 290 NLRB 834, 835 (1982) (de-
scribing “‘requirement of good faith dealings’ properly imposed on both
employer and employee” with regard to reinstatement offers).
53 Toledo (5) Auto/Truck Plaza, 300 NLRB 676, 676 fn. 2, 680 (1990)
(finding offer invalid where letter stated that striker (Hollie) must report
within 8 days, and reinstatement was conditioned on her reporting by that
date). See also Cassis Mgmt., 336 NLRB 961, 961 fn. 1 (2001) (finding
offer invalid where letter contained 5-day response period and indicated
that it would lapse if a response was not received by that date); National
Management Consultants, Inc., 313 NLRB 405, 405 fn. 6 (1993) (same,
5-day response period); Toledo 5 Auto/Truck Plaza, 291 NLRB 319, 319
We agree with the judge’s violation finding for the fol-
lowing reasons. Under Board precedent, an offer of rein-
statement or preferential recall will be treated as invalid if
the letter communicating the offer (1) contains an unrea-
sonably short response period or unreasonably imminent
report-back date, and (2) the letter indicates that the offer
will lapse if the employee does not respond or report to
work by the stated deadline.53 There is no per se rule es-
tablishing what constitutes a reasonable period of time.
Rather, what constitutes a reasonable period depends on
the circumstances of the particular employee and the re-
spondent’s existing policies.54 An employee has no obli-
gation to respond to an offer that is invalid under this
standard, and the failure to respond will not terminate the
employee’s right to reinstatement or preferential recall.55
Applying these principles here, we affirm the judge’s
finding that Buckner’s January 9 offer letter was invalid.
The 10- and 11-day time limits for responding to the letter
and reporting to work, respectively, were unreasonably
short in light of Buckner’s change of address, which de-
layed his receipt of the letter, and the Respondent’s will-
ingness to hold vacancies open for one or more months for
replacement employees, including Frazer (2 months to
clear active warrant), Moreno (2 months to finish employ-
ment contract with another employer), and Recinos (1
month for family emergency). The letter made clear that
the offer would lapse if Buckner failed to respond by the
stated deadline, and the Respondent did, in fact, remove
Buckner from consideration for preferential recall when
he failed to respond by January 19.56 We thus affirm the
judge’s finding that the Respondent violated Section
8(a)(3) and (1) of the Act by removing Buckner from con-
sideration for preferential recall.
Robert Harris
Prior to the strike, Harris held the position of service
technician. On June 11, 2015, the Respondent, by certi-
fied mail, sent Harris an “unconditional offer of reinstate-
ment.” Like Buckner’s letter, Harris’s offer letter
fn. 2 (1988) (same, 3-day report-back period), enfd. mem. 933 F.2d 1010
(6th Cir. 1991).
54 Toledo (5) Auto/Truck Plaza, 300 NLRB at 680; Esterline, 290
NLRB at 834-835. See also Golden Stevedoring, Inc., 335 NLRB 410,
412-413 (2001) (employer was required to keep offer open for 3 months
for injured striker).
55 Toledo (5) Auto/Truck Plaza, 300 NLRB at 676 fn. 2.
56 We also find it significant, as did the judge, that Buckner responded
to the invalid offer within a reasonable time given his circumstances,
even though he had no obligation to do so, and the Respondent, despite
being advised that Buckner had received the letter late because he had
moved, removed him from consideration for preferential recall. Even if
the offer were otherwise valid, the Respondent’s decision to discharge
Buckner, a 21-year employee, after his reasonable response violated Sec.
8(a)(3) and (1) of the Act. Allied Mechanical Services, Inc., 346 NLRB
326, 328 fn. 15 (2006) (citing Esterline, 290 NLRB at 835).
UNITED SITE SERVICES OF CALIFORNIA, INC. 11
contained lapsing language stating that “the company
must receive your response no later than 3:00 p.m. on
6/19/2015.” (Emphasis in original.) Harris was working
late hours and Saturdays, which prevented him from get-
ting to the post office to pick up the letter during business
hours.57 He finally picked up the letter on June 23, 2015,
but he did not respond because the deadline had already
passed.
The judge found that the Respondent’s removal of Har-
ris from consideration for preferential recall violated Sec-
tion 8(a)(3) and (1) of the Act. We agree, but only for the
following reasons. Harris’s letter, like Buckner’s, con-
tained lapsing language. The letter on its face made clear
that it would lapse if Harris did not respond within 8 days,
and the Respondent did, in fact, remove Harris from con-
sideration for preferential recall when he failed to respond
by the deadline. The response date was unreasonably
short in light of Harris’s work schedule, which interfered
with his ability to retrieve the letter from the post office,
and the Respondent’s willingness to hold offers open for
months for replacements, as noted above.58
Ernesto Pantoja
Prior to the strike, Ernesto Pantoja held the position of
utility driver. As a utility driver, he covered all the posi-
tions in the company, including service, pick-up and de-
livery, transportation of machinery, assistance to the me-
chanic, and maintenance. He held a Class A professional
driving license, which allowed him to perform the highest-
level driving responsibilities, including dump runs. On
June 11, 2015, by certified mail, the Respondent offered
Pantoja reinstatement to a position as a service technician.
He was removed from the preferential recall list on June
19, 2015, because he declined the position.
The judge found that the service technician position was
not substantially equivalent to Pantoja’s former position
of utility driver. He therefore concluded that the June 11
recall offer was invalid and that the Respondent violated
57 The offer letter stated that the Respondent, through Halley, had at-
tempted to contact Harris by telephone and had left a voicemail message
for him. However, Harris credibly testified that he did not receive any
telephone calls regarding the recall offer.
58 See Allied Mechanical, 346 NLRB at 328 fn. 15 (affirming judge’s
finding that 9-day time limit to accept recall offer was unreasonable,
where employee only checked his post office box every other week).
In its exceptions brief, the Respondent contends that it had no obliga-
tion to recall Harris because he had obtained substantially equivalent em-
ployment. We find no merit in this contention. Harris’s interim position
was not equivalent to his prestrike position because it paid substantially
less. In his prestrike position, Harris earned $20.35 per hour, as reflected
in the Respondent’s June 11, 2015 recall letter. In his interim position,
Harris earned $16 an hour until July 22, 2015, when he received a raise.
59 On exceptions, the Respondent contends that Pantoja told Halley
that he would not return unless the Respondent paid him $25 per hour,
instead of the $15 per hour that he was paid before the strike. We find
Section 8(a)(3) and (1) by removing Pantoja from consid-
eration for preferential recall based on his rejection of the
offer. We agree.
When Pantoja received the June 11 offer, he called Hal-
ley and told her that he would rather wait for his position
as a utility driver, and she responded that the utility driver
position was not currently available but that she would
keep him in the system for when that position did come
available.59 The Respondent also recognized Pantoja’s
position as a “utility driver” on its preferential recall lists
and on a May 21, 2015 letter to Pantoja regarding a parts
and delivery opening, which stated, “[Y]ou . . . will be
contacted when a future Utility Driver position becomes
available.” The record reflects, moreover, that the service
technician position and the utility driver position are not
substantially equivalent, and that the service technician
position is more onerous and less desirable. Regarding the
differences between the service technician and utility
driver positions, Pantoja testified, “Utility driver covers
all the positions. And service tech specifically goes to
clean the bathrooms of the worksites.” He further testified
that he only spent 25 to 30 percent of his time doing what
would be classified as service technician work.60 We
therefore affirm the judge’s finding that by removing Pan-
toja from consideration for preferential recall, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
Jorge Rodriguez
Prior to the strike, Jorge Rodriguez held the position of
service technician. In February 2015, the Respondent of-
fered Rodriguez a pick-up and delivery position, which he
declined. In the same month, the Respondent offered him
a service technician position, which he accepted, but an-
other striker with more seniority was awarded the posi-
tion. On about April 7, 2015, the Respondent, by certified
mail, again offered Rodriguez a service technician posi-
tion. The letter stated that the Respondent, through Hal-
ley, had attempted to contact Rodriguez by telephone and
no merit in this contention. Pantoja testified that after he received the
Respondent’s June 11, 2015 letter offering him reinstatement to a service
technician position, he called Halley and told her that “it was unfortunate
that I wasn’t going to be able to receive the $20 that I’d asked for. And
that the company was only offering me $15 an hour to which I told [Hal-
ley] that I would rather instead then wait for a position—my position as
a utility driver.” He further testified that Halley told him that the utility
driver position was not currently available but that she would keep him
in the system for when that position did come available. The Respondent
did not elicit testimony from Halley regarding this conversation. Pan-
toja’s testimony is therefore uncontroverted.
60 See, e.g., Laidlaw Waste Systems, 313 NLRB 680, 681–682 (1994)
(finding that positions were not substantially equivalent where drivers
operated different vehicles subject to different licensing and training re-
quirements, and they performed different collection services with differ-
ent physical demands and job tasks).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had left two voicemail messages for him. The letter was
returned as undeliverable, and the Respondent thereafter
removed Rodriguez from consideration for preferential re-
call.
The judge found that the Respondent’s removal of Ro-
driguez from consideration for preferential recall violated
Section 8(a)(3) and (1) of the Act because the Respondent
knew that Rodriguez was interested in reinstatement based
on his response to the February offer, but it failed to make
other efforts to contact him after the April offer letter was
returned as undeliverable. We disagree.
Contrary to the judge, we find that the Respondent made
reasonable efforts to notify Rodriguez that an opening ex-
isted in his prestrike position. The Respondent confirmed
Rodriguez’ contact information with the Union, left two
voicemail messages at the telephone number confirmed by
the Union, and sent a certified letter to the address con-
firmed by the Union.61 Moreover, as noted above, the Re-
spondent had successfully contacted Rodriguez in Febru-
ary, and there is no claim or evidence that his telephone
number or address had changed in the intervening 2
months.62 We therefore reverse the judge’s finding that
the Respondent violated Section 8(a)(3) and (1) of the Act
by removing Rodriguez from consideration for preferen-
tial recall.
Daniel Ruiz
Prior to the strike, Daniel Ruiz held the position of yard
associate. On January 21, 2015, the Respondent, by certi-
fied mail, offered Ruiz reinstatement to his former posi-
tion. The letter stated that the Respondent had attempted
to call Ruiz and had left a voicemail message conveying
the offer. The Respondent also sent a copy of the letter to
the Union. Ruiz was removed from consideration for pref-
erential recall because he failed to respond to the letter,
although the Respondent never received a delivery receipt.
The Respondent nevertheless reinstated Ruiz into a yard
associate position on June 2, 2015, and on July 23, 2015,
it promoted him to service technician.
The judge found that when the Respondent did not re-
ceive the delivery receipt and knew that the offer letter had
not reached Ruiz, it did not take reasonable steps to inform
him that he was being asked to return to work prior to con-
sidering him ineligible for recall. The judge noted that the
Respondent had other available means to contact Ruiz,
61 Rodriguez did not testify, and the record does not reveal whether he
received the Respondent’s voicemail messages or notices from the Postal
Service regarding the letter.
62 The judge cited Alaska Pulp Corp., 326 NLRB 522, 528 (1998),
enfd. in relevant part 231 F.3d 1156 (9th Cir. 2000), for the proposition
that an employer must use all available means to contact strikers when
jobs become available, including through the union. Although the Board
in Alaska Pulp stated that it was the employer’s burden “to make a good
such as through the Union, but it made no efforts to do so.
The judge therefore found that the Respondent violated
Section 8(a)(3) and (1) by removing Ruiz from considera-
tion for preferential recall.
We disagree. The evidence establishes that the Re-
spondent called Ruiz’ telephone number of record as con-
firmed by the Union and left him a voicemail message
conveying the offer of reinstatement. It also mailed a cer-
tified letter to his address of record as confirmed by the
Union. Finally, the Respondent provided the Union a
copy of the offer letter. On these facts, we conclude that
the judge erred in finding that the Respondent failed to
take reasonable measures to make known to Ruiz that he
was being invited to return to work. We therefore reverse
the judge’s finding that the Respondent violated Section
8(a)(3) and (1) by removing Ruiz from consideration for
preferential recall.
C. Alleged “Independent Unlawful Purpose” for Hiring
Permanent Replacements
1. Background
As discussed above, from February to July the parties
bargained unsuccessfully for an initial collective-bargain-
ing agreement. On July 23, the employees rejected the
Respondent’s final contract proposal and voted to strike.
Before they voted to strike, the unit employees were in-
formed that they could be permanently replaced. In Au-
gust, the Union notified the Respondent that it had re-
ceived strike authorization. The Respondent then began
considering options to assure continued operations during
the anticipated strike. With regard to replacing the strik-
ers, Vice President of Operations Mark Bartholomew tes-
tified that the Respondent’s “senior team”—comprised of
himself, Chief Executive Officer Ron Carapezzi, and Sen-
ior Vice President of Human Resources Randy Balin—de-
cided to permanently replace the strikers rather than rely-
ing on temporary employees to perform bargaining unit
work for the following reasons. First, in the past, tempo-
rary employees had only been used for certain positions
on a limited basis. Second, the Respondent anticipated
that the strike would be long, possibly lasting the rest of
the year, because the parties were “miles apart” in the ne-
gotiations. Third, the Respondent was concerned that re-
lying on temporary employees for the expected duration
of the strike would expose it to unacceptably high turnover
faith effort to locate strikers when jobs became available,” the Board’s
decision did not turn on that principle. Rather, the Board found that the
employer prematurely terminated the striker’s preferential recall rights
when a letter notifying her that she must individually request reinstate-
ment was returned as undeliverable because no job vacancy existed at
that time, and by the time the striker’s prestrike position did become
available, she had notified the employer of her new address. 326 NLRB
at 528.
UNITED SITE SERVICES OF CALIFORNIA, INC. 13
due to the competitive job market, the unpleasant realities
of the job (cleaning portable toilets), the lack of benefits,
and the absence of a guarantee of a job when the strike
ended. Fourth, the Respondent believed that the higher
turnover rate among temporary employees would cause
lost investment in training. In this regard, Bartholomew
testified that it takes about 2 weeks of training before em-
ployees are able to drive the Respondent’s trucks alone
and up to 6 months before they become fully proficient.
Finally, the Respondent was concerned that the higher
turnover rate among temporary employees would cause
customer service to suffer, given the time it takes employ-
ees to become fully proficient. Indeed, Bartholomew tes-
tified that the “primary consideration” driving the Re-
spondent’s decision to hire permanent replacements “was
the customer and making sure that the services were done
and done well.” In light of these considerations, Barthol-
omew testified that the roughly $15,000 fee that the Re-
spondent paid to convert the replacements referred by La-
bor Finders was “nominal.”
2. Legal Standard
In Hot Shoppes, the Board held that an employer’s mo-
tive for hiring permanent replacements “is immaterial, ab-
sent evidence of an independent unlawful purpose.”63
While this matter was pending, the Board issued its deci-
sion in Piedmont Gardens, supra, 364 NLRB No. 13. In
Piedmont Gardens, the majority held that the term “inde-
pendent unlawful purpose” includes “an employer’s intent
to discriminate or to encourage or discourage union mem-
bership.”64 The majority further held that Hot Shoppes
does not require the General Counsel to demonstrate the
existence of an unlawful purpose unrelated or extrinsic to
the parties’ bargaining relationship or the strike but rather
only that the hiring of permanent replacements was moti-
vated by a purpose prohibited by the Act.65 The Piedmont
Gardens majority concluded that the employer’s admitted
motivation to hire permanent replacements to “teach the
strikers and the union a lesson” and to “avoid any future
strikes” constituted independent unlawful purposes, the
first because it revealed an intent to punish employees for
their protected conduct, and the second because it
63 146 NLRB at 805. Reversing the trial examiner, the Board in Hot
Shoppes held that unlawful motivation could not be inferred based
merely on an employer’s hiring or planning to hire permanent replace-
ments. Id. However, because the Board in Hot Shoppes found no evi-
dence of unlawful motivation, it did not address what would qualify as
an “independent unlawful purpose.”
64 364 NLRB No. 13, slip op. at 5.
65 Id. Dissenting in relevant part, Member Miscimarra disagreed with
the majority’s expansion of the “independent unlawful purpose” excep-
tion to include any antiunion animus. Id., slip op. at 9–19. In his view,
the majority’s decision effectively overruled the central holding of Hot
Shoppes, which made an employer’s motive for hiring permanent
demonstrated a desire to interfere with employees’ future
protected activity.66 The majority therefore held that the
employer’s refusal to reinstate strikers upon their uncon-
ditional offer to return to work was unlawful.
3. The Judge’s Decision
The judge found that the General Counsel sustained his
“initial burden of showing that an independent unlawful
purpose was a motivating factor in the [Respondent’s] de-
cision to permanently replace economic strikers.” He re-
lied on the Respondent’s “Non-Union Philosophy” ex-
pressed in its Associate Handbook; its violations of Sec-
tion 8(a)(3) and (1) discussed above, which the judge
found “manifest[ed] ‘intent to discriminate’ and/or ‘intent
to discourage Union membership’”; and its failure to in-
form the Union that it was hiring permanent replacements
until it had filled all positions. Indeed, the judge found
that the timing of the Respondent’s notification to the Un-
ion “standing alone” created a “logical implication” that
the Respondent’s decision was the product of an “illicit
motive.”
The judge then examined the Respondent’s proffered
reasons for hiring permanent replacements and found
them to be pretextual. In so finding, the judge compared
the relative costs, turnover rates, and skill levels of perma-
nent replacements with those of reinstated strikers. He
reasoned that it would have been less costly to reinstate
the strikers than to permanently replace them, given the
expense of training the replacements and converting the
Labor Finders hires to permanent status. The judge also
observed that “the strikers knew the work, knew the routes
and had been performing the work in a satisfactory fash-
ion.” Finally, he found that the reasons advanced by the
Respondent did not “address the critical issue of why it
waited until it falsely claimed it had filled positions to dis-
close the hiring of permanent replacements.” In this re-
gard, the judge opined that if the Respondent was truly
concerned about customer service and turnover, “it could
have on the first day of the strike disclosed to the strikers
its plan to replace them to induce them to abandon the
strike and return to work.” Accordingly, the judge con-
cluded that the Respondent had an “independent unlawful
replacements irrelevant; it invalidated an economic weapon that the Su-
preme Court declared lawful in MacKay; and it improperly changed the
balance of interests among employees, unions, and employers struck by
Congress when it chose to protect various economic weapons, including
the hiring of permanent replacements.
Because we find below that the Respondent’s hiring of permanent re-
placements was not motivated by an independent unlawful purpose as
that term was defined by the Piedmont Gardens majority, we find it un-
necessary to decide here whether the majority in Piedmont Gardens cor-
rectly defined the “independent unlawful purpose” exception. However,
we would be willing to consider the issue in a future appropriate case.
66 Id., slip op. at 6–7.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
purpose” for hiring permanent replacements and violated
Section 8(a)(3) and (1) of the Act by failing to reinstate all
the strikers immediately upon their unconditional offer to
return to work.67
4. Analysis
For the reasons explained below, we reverse the judge
and dismiss the allegation. Although we find that the Gen-
eral Counsel presented some evidence of unlawful pur-
pose,68 we conclude, based on the record as whole, that the
evidence is insufficient to establish that the Respondent
hired the permanent replacements for an independent un-
lawful purpose.
To begin with, we disagree that the Respondent’s stated
reasons for hiring permanent replacements were pre-
textual. As discussed above, Vice President of Operations
Bartholomew testified that the Respondent decided to per-
manently replace the strikers instead of relying on tempo-
rary replacements in order to minimize training costs, re-
duce turnover, and maintain good customer service. In
finding these justifications to be pretextual, the judge rea-
soned that they were “logically inconsistent with the hir-
ing of replacements” because the Respondent would have
incurred lower costs, experienced less turnover, and been
67 Excepting, the Respondent contends, among other things, that the
judge applied the wrong analysis, and even assuming he applied the cor-
rect analysis, the judge misapprehended certain evidence and, thus, erred
in finding that the Respondent’s conduct manifested an intent to discrim-
inate and/or to discourage union membership and in finding that the Re-
spondent’s stated reasons for hiring permanent replacements were pre-
textual. While we find merit in certain of the Respondent's exceptions,
we find it unnecessary to address them individually, in light of the
grounds for dismissal of the “independent unlawful purpose” allegation
set forth infra.
68 Specifically, we rely on the unfair labor practices found above,
which demonstrate that the Respondent bore animus towards the strikers’
protected activity.
Contrary to the judge, we do not rely on the Respondent’s “Non-Un-
ion Philosophy.” Sec. 8(c) of the Act provides that expressing views,
arguments, or opinions “shall not constitute or be evidence of an unfair
labor practice . . . if such expression contains no threat of reprisal or force
or promise of benefit” (emphasis added). The “Non-Union Philosophy”
section of the Respondent’s employee handbook contains neither threat
nor promise. It states that the Respondent “will do everything in its legal
power” to remain nonunion (emphasis added). Accordingly, Sec. 8(c)
protects the Respondent’s right to express its opposition to unionization
and prohibits relying on that expression as evidence of an unfair labor
practice. Despite this clear statutory command, the Board has relied
upon noncoercive statements of opposition to unions or unionization as
evidence of antiunion animus in support of unfair labor practice findings.
See, e.g., Overnite Transportation Co., 335 NLRB 372, 375 fn. 15
(2001); Mediplex of Stamford, 334 NLRB 903, 903 (2001); Affiliated
Foods, Inc., 328 NLRB 1107, 1107 (1999); Lampi LLC, 327 NLRB 222,
222 (1998); Gencorp., 294 NLRB 717, 717 fn. 1 (1989). Several courts
of appeals have rejected the Board’s position. See Sasol North America
Inc. v. NLRB, 275 F.3d 1106, 1112 (D.C. Cir. 2002); Medeco Security
Locks, Inc. v. NLRB, 142 F.3d 733, 744 (4th Cir. 1998); BE & K Con-
struction Co. v. NLRB, 133 F.3d 1372, 1375–1377 (11th Cir. 1997) (per
curiam); Holo-Krome Co. v. NLRB, 907 F.2d 1343, 1345–1347 (2d Cir.
better able to maintain customer service standards if it had
reinstated the strikers. The judge also reasoned that if the
Respondent was truly concerned about turnover and cus-
tomer service, it would have disclosed to the strikers, on
day one of the strike, its plan to permanently replace them
in order to induce them to return to work.
In our view, the judge’s reasoning is flawed and does
not support a finding of pretext. “[T]he crucial factor is
not whether the business reasons cited by [the employer]
were good or bad, but whether they were honestly invoked
. . . .”69 Similarly, the Board does not engage in a post hoc
analysis of an employer’s business decision to determine
whether it was lawfully motivated. Rather, the Board con-
siders the factors known to the employer at the time the
decision was made.70
Here, at the time the Respondent made the decision to
permanently replace the strikers, reinstating the strikers
was not an option. They were on strike, withholding their
labor to exert economic pressure on the Respondent. And
there was no reason to believe that the Respondent could
induce them to return to work by notifying them that it was
hiring permanent replacements. Indeed, the record estab-
lishes that before they voted to strike, the unit employees
1990). We agree with these courts that Sec. 8(c) precludes reliance on
statements of opinion that neither threaten nor promise as evidence in
support of any unfair labor practice finding. To the extent Board prece-
dent is to the contrary, it is hereby overruled.
Also contrary to the judge, we reject his finding that the timing of the
Respondent’s announcement to the Union that it had permanently re-
placed the strikers evinced an illicit motive. An employer has no legal
obligation to disclose its intention to permanently replace economic
strikers. Avery Heights, 343 NLRB 1301, 1306 (2004) (“[T]he Board
has never held that an employer is under a duty to disclose to a union its
intention to hire permanent replacements.”), vacated and remanded New
England Health Care Employees Union v. NLRB, 448 F.3d 189 (2d Cir.
2006), after remand 350 NLRB 214 (2007), enfd. Church Homes, Inc. v.
NLRB, 303 Fed. Appx. 998 (2d Cir. 2008), cert denied 558 U.S. 945
(2009). Although the Second Circuit in Avery Heights found that the
respondent employer’s intentional secrecy about its decision to hire per-
manent replacements supported a finding that the respondent had an il-
licit motive, the court did not hold that employers generally are required
to notify strikers before permanently replacing them. 448 F.3d at 195
(accepting “Board’s premise that an employer has no legal obligation to
inform striking workers before hiring permanent replacements”). More-
over, the facts in this case differ materially from those in Avery Heights.
The respondent in Avery took “active measures” to conceal its hiring of
permanent replacements, including placing blind ads and telling an
agency supplying temporary employees that its plans regarding perma-
nent replacements were “hush-hush”; and the respondent in Avery brag-
gingly described its hiring of permanent replacements “as a well-exe-
cuted surprise event the day before Christmas.” 343 NLRB at 1305. The
court found that the “natural and logical implication[]” of the respondent
employer’s deliberate concealment was that the employer’s motive was
to “break” the union. 448 F.3d at 196. There is no such evidence in this
case.
69 Ryder Distribution Resources, 311 NLRB 814, 816 (1993) (internal
quotation marks omitted).
70 Ryder, 311 NLRB at 816–817.
UNITED SITE SERVICES OF CALIFORNIA, INC. 15
were informed that they could be permanently replaced.
Moreover, the Respondent anticipated that the strike
would be long because the parties were “miles apart” in
the negotiations. Hence, from the Respondent’s perspec-
tive, it had two options: hire permanent replacements or
rely on temporary employees. Given the anticipated du-
ration of the strike, the Respondent could reasonably have
believed that hiring permanent replacements would result
in less turnover, reduced training costs, and better overall
customer service.
Moreover, the record contains significant countervail-
ing evidence that further undermines any inference of an
unlawful motive. Thus, contrary to the judge’s finding
that the Respondent “falsely claimed it had filled [strik-
ers’] positions,” the evidence shows that the Respondent
permanently replaced most of the strikers before they
made an unconditional offer to return to work. Although
some of the Respondent’s attempts to hire permanent re-
placements were unsuccessful (i.e., Martinez, Beddoes,
Frazer, Moreno, and Recinos), the record as a whole does
not support the judge’s finding that the Respondent en-
gaged in a pattern of hiring sham permanent replacements
in order to block the return of the strikers. There is no
persuasive evidence that the Respondent demonstrated
any intent not to hire legitimate permanent replacements
or acted contrary to its usual employment practices. Fur-
thermore, upon the strikers’ unconditional offer to return
to work, the Respondent, in cooperation with the Union,
established a preferential recall list and began reinstating
the strikers as positions became available. The Respond-
ent also offered interim reinstatement to strikers while
they waited for vacancies to arise in their former or sub-
stantially equivalent positions. Finally, after the preferen-
tial recall list was exhausted, the Respondent offered rein-
statement to strikers whom it had previously removed
from consideration for preferential recall for failing to re-
spond to reinstatement offers. Such actions are not illus-
trative of an unlawful motive to punish the strikers and
break the Union.
For the foregoing reasons, we find that the judge erred
in concluding that the Respondent had an “independent
unlawful purpose” for hiring permanent replacements.
We thus reverse the judge’s finding and dismiss the alle-
gation that the Respondent violated Section 8(a)(3) and (1)
of the Act by failing and refusing to immediately reinstate
71 The judge mistakenly stated that three strikers had returned to work
when the petition was first circulated in early January. The parties stip-
ulated, however, that the first striker was recalled on December 18
(Marco Cervantez) and the second and third strikers (Benjamin Pantoja
and Jose Orellana) were recalled on February 2 and 3, 2015, respec-
tively. The judge also mistakenly stated that the first offer of reinstate-
ment “went out on December 8, 2015,” rather than December 8, 2014.
These inadvertent errors do not affect the disposition of this case.
all the strikers upon their unconditional offer to return to
work.
D. Alleged Unlawful Withdrawal of Recognition
1. Background
On March 27, 2015, the Respondent withdrew recogni-
tion from the Union based on an antiunion petition signed
by 24 employees. The petition contained the following
language: “We the employees of United Site Services at 1
Oak Road, Benicia CA 94510 are hereby giving notice to
the Teamsters Local Union 315 that we do NOT want any
association or Representation from the Teamsters Local
Union 315 effective immediately.” Twenty-one employ-
ees signed the petition between January 5 and 7, 2015, at
a time when only one former striker had returned to work;
two employees signed the petition on February 11, 2015;
and the last signature is undated.71
2. Analysis
We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recog-
nition from the Union. We find, as the judge did, that the
Respondent’s unremedied unfair labor practices tended to
cause employees to become disaffected from the Union
and thus, under Master Slack Corp., 271 NLRB 78 (1984),
tainted the antiunion petition the Respondent relied on in
withdrawing recognition.72
The Board has held that an employer may not withdraw
recognition from a union while there are unremedied un-
fair labor practices tending to cause employees to become
disaffected from the union.73 To determine whether there
is a causal connection between an employer’s unfair labor
practices and employees’ disaffection, the Board consid-
ers the following factors:
(1) The length of time between the unfair labor practices
and the withdrawal of recognition;
(2) the nature of the illegal acts, including the possibility
of their detrimental or lasting effect on employees;
(3) any possible tendency to cause employee disaffec-
tion from the union; and
(4) the effect of the unlawful conduct on employee mo-
rale, organizational activities, and membership in the un-
ion.74
72 We find it unnecessary to pass on the judge’s additional finding that
the Respondent failed to establish that the Union had, in fact, lost major-
ity support.
73 Denton County Electric Cooperative, Inc. d/b/a CoServ Electric,
366 NLRB No. 103, slip op. at 2–3, 10–12 (2018), enfd. in relevant part
__ F.3d __, 2020 WL 3249251 (5th Cir. June 16, 2020).
74 Ardsley Bus Corp., 357 NLRB 1009, 1012 (2011) (citing Master
Slack, 271 NLRB at 84).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All of these factors tend to establish the requisite con-
nection between the Respondent’s unfair labor practices
and the Union’s loss of support. As to the first factor, we
have found that the Respondent engaged in the following
conduct in violation of Section 8(a)(3) and (1) of the Act
prior to the Respondent’s withdrawal of recognition from
the Union: (a) on October 17, falsely claiming that Mar-
tinez, Beddoes, and Moreno were permanent replacements
and continuing to assign service technician work to fence
driver Reyes-Perusquia, thereby blocking the return of
four strikers; (b) on an unspecified date between October
17 and November 18, failing to recall a former striker
when it learned that Frazer’s background check revealed
an active warrant; (c) on about November 14, failing to
recall a former striker to the vacancy created by Recinos’s
departure; and (d) on about January 19, 2015, removing
Buckner from consideration for preferential recall for in-
valid reasons. Employees signed the decertification peti-
tion between January 5 and February 11, 2015, and the
Respondent withdrew recognition from the Union on
March 27, 2015. The Respondent’s unfair labor practices
were unremedied and ongoing throughout this period.
As to the second factor—the nature of the Respondent’s
illegal conduct—between October 17, 2014, and March
27, 2015, the Respondent unlawfully failed to recall
and/or tendered invalid offers of reinstatement to 7 out of
21 strikers. The Respondent’s unfair labor practices thus
directly affected nearly one third of the original unit. The
unfair labor practices also had a ripple effect on an un-
known number of other strikers whose reinstatement was
delayed. Such violations would clearly encourage hostil-
ity toward the Union for a perceived failure to protect the
strikers’ interests and would have a detrimental impact on
employee morale and support for the Union.75
As to the third factor—whether the Respondent’s mis-
conduct tended to cause employee disaffection—viewed
objectively, the Respondent’s unremedied unfair labor
practices would clearly encourage employees to lose faith
in the Union’s ability to protect them and would have an
75 We recognize that the Union’s failure to negotiate a satisfactory
contract, the permanent replacement of the strikers, and the fact that
some of the employees in the unit were hired as permanent replacements
and others crossed the picket line may also have given rise to disaffec-
tion. However, it is reasonable to infer that the Respondent’s unreme-
died unfair labor practices contributed substantially to the disaffection,
given their serious and widespread impact on the unit.
76 In their first vote on the Respondent’s contract proposal on June 28,
the unit employees rejected the offer 15–0. The Respondent argues that
this should be considered evidence of disaffection with the Union be-
cause it demonstrates that the employees were dissatisfied with the con-
tract the Union negotiated on their behalf. The Respondent also points
out that, one month later, the employees voted unanimously to reject the
Respondent’s final offer, but only 10 employees participated in the vote.
The Respondent contends that the decline in participation is evidence of
obvious detrimental effect on employee support for the
Union. Finally, as to the fourth factor, the effect of the
unlawful conduct on employee morale and membership in
the Union, there is no direct evidence establishing that the
Respondent’s unfair labor practices caused the employ-
ees’ disaffection. However, in the circumstances pre-
sented here, it is reasonable to infer as much. The Union
won the election and was certified as the bargaining rep-
resentative of the unit employees in January 2014. There
is no evidence of disaffection between that time and the
Respondent’s unfair labor practices, which started in Oc-
tober.76 The lack of prior disaffection is strong evidence
of a causal connection between subsequent disaffection
and the Respondent’s unfair labor practices.77 The anti-
Union petition drive began after the Respondent engaged
in those unfair labor practices.
In sum, for the reasons discussed above, we affirm the
judge’s findings that a causal relationship existed between
the Respondent’s unfair labor practices and the union-dis-
affection petition, and therefore the Respondent could not
rely on the petition to withdraw recognition from the Un-
ion.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Teamsters Local 315, IBT is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by engaging in the following conduct:
(a) failing and refusing to reinstate former economic
strikers, upon their unconditional offer to return to work,
to their former or substantially equivalent positions of em-
ployment where those positions had not been filled by per-
manent replacements;
(b) failing and refusing to timely recall former eco-
nomic strikers to existing vacancies in their prestrike or
substantially equivalent positions in the absence of a legit-
imate and substantial business justification; and
disaffection predating the Respondent’s unfair labor practices. The Re-
spondent’s arguments are effectively refuted, however, by the employ-
ees’ subsequent participation in the strike. As discussed above, 21 of the
24-unit employees supported the Union by striking on October 17.
Conkle Funeral Home, Inc., 266 NLRB 295 (1983), cited by the Re-
spondent, is inapposite. In Conkle, the issue was whether the respondent
lawfully relied on the union’s disclaimer of interest during the certifica-
tion year to refuse to recognize and bargain with the union when the un-
ion subsequently demanded renewed bargaining during the certification
year. There were no intervening unfair labor practices, and the cause of
the employees’ disaffection was not in dispute.
77 See Bunting Bearings Corp., 349 NLRB 1070, 1072 (2007) (hold-
ing causal connection established in part by lack of prior evidence of
disaffection).
UNITED SITE SERVICES OF CALIFORNIA, INC. 17
(c) removing former economic strikers Walter Buck-
ner, Robert Harris, and Ernesto Pantoja from considera-
tion for preferential recall because they failed to respond
to or rejected invalid offers of reinstatement.
4. The Respondent violated Section 8(a)(5) and (1) of
the Act by withdrawing recognition from Teamsters Local
315, IBT as the bargaining representative of the employ-
ees at the Respondent’s Benicia, California facility.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by failing and refusing to rein-
state economic strikers, upon their unconditional offer to
return to work, to their former or substantially equivalent
positions of employment where those positions had not
been filled by permanent replacements; failing and refus-
ing to timely recall economic strikers to existing vacancies
in their prestrike or substantially equivalent positions in
the absence of a legitimate and substantial business justi-
fication; and removing former strikers Walter Buckner,
Robert Harris, and Ernesto Pantoja from consideration for
preferential recall because they failed to respond to or re-
jected invalid offers of reinstatement, we shall order the
Respondent, if it has not already done so, to offer the af-
fected employees full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, discharging, if necessary, any employees cur-
rently in those positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
and to make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them.78
Backpay shall be calculated in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest accru-
ing at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). Pursuant to
King Soopers, Inc., 364 NLRB No. 93 (2016), the Re-
spondent shall further compensate the affected employees
for their reasonable search-for-work and interim employ-
ment expenses, regardless of whether those expenses
78 We leave to the compliance stage of this proceeding the determina-
tion of the number and identity of employees affected by the Respond-
ent’s failure and refusal to immediately reinstate strikers, upon their un-
conditional offer to return to work, to their prestrike or substantially
equivalent positions, where those positions had not been filled by perma-
nent replacements, and its failure and refusal to timely recall economic
exceed interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra.
Additionally, we shall order the Respondent to compen-
sate affected employees for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and to file
with the Regional Director for Region 20, within 21 days
of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
award to the appropriate calendar years for each of them.
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
We shall also order the Respondent to remove from its
files any references to the unlawful failures to reinstate or
timely recall former strikers and the removal of Buckner,
Harris, and Pantoja from consideration for preferential re-
call and to notify affected employees in writing that this
has been done and that the failures to reinstate or recall
and the removals from consideration for preferential recall
will not be used against them in any way.
We have also found that the Respondent violated the
Act by withdrawing recognition from the Union. As indi-
cated above, the Union has disclaimed interest in contin-
ued representation of the unit employees, thereby mooting
any ongoing obligation the Respondent would have to bar-
gain with the Union. We accordingly amend the judge’s
recommended remedy to delete the requirement that the
Respondent recognize and bargain with the Union.
The judge’s recommended remedy included an affirm-
ative requirement that the Respondent make bargaining
unit employees whole for losses suffered as a result of any
unilateral changes in their terms and conditions of em-
ployment subsequent to the unlawful withdrawal of recog-
nition. In the absence of any allegation of unilateral
changes, we shall delete this requirement.
Finally, as recommended by the judge, the Respondent
shall hold a meeting or meetings during working hours at
its Benicia, California facility, scheduled to ensure the
widest possible attendance of bargaining unit employees,
at which the notice is to be read to unit employees by a
high-ranking responsible management official of the Re-
spondent, in both English and Spanish, in the presence of
a Board agent, or, at the Respondent’s option, by a Board
agent in the presence of a high-ranking responsible man-
agement official.79
strikers to existing vacancies in their prestrike or substantially equivalent
positions.
79 The judge included a notice-reading provision in his recommended
remedy, but he inadvertently failed to include a corresponding provision
in the Order. We shall modify the Order accordingly.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, United Site Services of California,
Inc., Benicia, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate former economic
strikers, upon their unconditional offer to return to work,
to their former or substantially equivalent positions of em-
ployment where those positions have not been filled by
permanent replacements.
(b) Failing and refusing to timely recall former eco-
nomic strikers to existing vacancies in their former or sub-
stantially equivalent positions of employment in the ab-
sence of a legitimate and substantial business justification.
(c) Removing former economic strikers from consider-
ation for preferential recall for failing to respond to or re-
jecting invalid offers of reinstatement.
(d) Failing and refusing to recognize and bargain col-
lectively concerning rates of pay, wages, hours, and other
terms and conditions of employment with any duly certi-
fied representative of the employees in the following ap-
propriate unit:
All full time and regular part-time Service Technicians,
Lead Service Technicians, Pick Up and Delivery Driv-
ers, Mechanics, Laborers, and Fence Installers em-
ployed by the Employer at its 1 Oak Road, Benicia, Cal-
ifornia facility, but excluding Dispatchers, supervisors
and guards as defined by the Act.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, if it has
not already done so, offer former economic strikers who
were not permanently replaced and who were unlawfully
denied reinstatement upon their unconditional offer to re-
turn to work full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, discharging, if necessary, any employees currently
in those positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(b) Make whole former economic strikers who were not
permanently replaced and who were unlawfully denied re-
instatement upon their unconditional offer to return to
work for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the man-
ner set forth in the amended remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, if it has
not already done so, offer former economic strikers who
were not timely recalled to existing vacancies to which
they were entitled based on the preferential recall list full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, dis-
charging, if necessary, any employees currently in those
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(d) Make whole former economic strikers who were not
timely recalled to existing vacancies to which they were
entitled based on the preferential recall list for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
amended remedy section of this decision.
(e) Within 14 days from the date of this Order, if it has
not already done so, offer Walter Buckner, Robert Harris,
and Ernesto Pantoja full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, discharging, if necessary, any employees cur-
rently in those positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
(f) Make Walter Buckner, Robert Harris, and Ernesto
Pantoja whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the amended remedy section of this
decision.
(g) Compensate affected employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 20,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(h) Within 14 days from the date of this Order, remove
from its files any references to the unlawful refusals to re-
instate or timely recall former economic strikers, and
within 3 days thereafter, notify affected employees in writ-
ing that this has been done and that the refusals to reinstate
or timely recall them will not be used against them in any
way.
(i) Within 14 days from the date of this Order, remove
from its files any references to the unlawful removal of
Walter Buckner, Robert Harris, and Ernesto Pantoja from
consideration for preferential recall, and within 3 days
thereafter, notify them in writing that this has been done
and that the removal from consideration for preferential
recall will not be used against them in any way.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form,
UNITED SITE SERVICES OF CALIFORNIA, INC. 19
necessary to analyze the amounts of backpay due under
the terms of this Order.
(k) Post at its facility in Benicia, California, copies of
the attached notice marked “Appendix”80 in both English
and Spanish. Copies of the notice, on forms provided by
the Regional Director for Region 20, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an in-
tranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by
the Respondent at any time since October 17, 2014.
(l) Hold a meeting or meetings during working hours at
its facility in Benicia, California, scheduled to ensure the
widest possible attendance of bargaining unit employees,
at which the attached notice marked “Appendix” will be
read to the employees in both English and Spanish by a
high-ranking responsible management official of the Re-
spondent in the presence of a Board agent or, at the Re-
spondent’s option, by a Board agent in the presence of a
high-ranking responsible management official of the Re-
spondent.81
(m) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region attest-
ing to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. July 29, 2020
______________________________________
John F. Ring, Chairman
80 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notice must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus Disease 2019 (COVID-19)
pandemic, the notice must be posted within 14 days after the facility re-
opens and a substantial complement of employees have returned to work,
and the notice may not be posted until a substantial complement of em-
ployees have returned to work. Any delay in the physical posting of pa-
per notices also applies to the electronic distribution of the notice if the
Respondent customarily communicates with its employees by electronic
means. If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading “Posted by Order of the
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to reinstate former eco-
nomic strikers who were not permanently replaced upon
their unconditional offer to return to work.
WE WILL NOT fail and refuse to reinstate former eco-
nomic strikers to existing vacancies in their former or sub-
stantially equivalent positions of employment in the ab-
sence of a legitimate and substantial business justification.
WE WILL NOT remove former economic strikers from
consideration for preferential recall for failing to respond
to or rejecting invalid offers of reinstatement.
WE WILL NOT fail and refuse to recognize and bargain
collectively concerning rates of pay, wages, hours, and
National Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
81 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notice must be read within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus Disease 2019 (COVID-19)
pandemic, the notice must be read within 14 days after the facility reo-
pens and a substantial complement of employees have returned to work,
and the notice may not be read until a substantial complement of employ-
ees have returned to work.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other terms and conditions of employment with any duly
certified representative of the employees in the following
appropriate unit:
All full time and regular part-time Service Technicians,
Lead Service Technicians, Pick Up and Delivery Driv-
ers, Mechanics, Laborers, and Fence Installers em-
ployed by the Employer at its 1 Oak Road, Benicia, Cal-
ifornia facility, but excluding Dispatchers, supervisors
and guards as defined by the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer former economic strikers who were not per-
manently replaced and who were unlawfully denied rein-
statement upon their October 17, 2014 unconditional offer
to return to work reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, discharging if necessary any employees currently
in those positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer former economic strikers who were unlaw-
fully denied timely recall to vacancies in their former or
substantially equivalent positions of employment rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, discharging if
necessary any employees currently in those positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Walter Buckner, Robert Harris, and Ernesto
Pantoja reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, dis-
charging if necessary any employees currently in those po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make whole all affected employees, including
Walter Buckner, Robert Harris, and Ernesto Pantoja, for
any loss of earnings and other benefits resulting from our
unlawful conduct, less any interim earnings, plus interest,
and WE WILL also make them whole for any reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 20, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the unlaw-
ful refusals to reinstate or recall economic strikers, and WE
WILL, within 3 days thereafter, notify the affected employ-
ees in writing that this has been done and that the refusals
to reinstate or recall them will not be used against them in
any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the unlaw-
ful removal of Walter Buckner, Robert Harris, and Ernesto
Pantoja from consideration for preferential recall, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that their removal from considera-
tion for preferential recall will not be used against them in
any way.
UNITED SITE SERVICES OF CALIFORNIA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-139280 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Richard J. McPalmer Esq. and Elvira Pereda, Esq., for the Gen-
eral Counsel.
David S. Durham, Esq. and Christopher M. Foster Esq. (DLA
Piper LLP), Jonathan E. Kaplan, Esq. and Erik Hult, Esq.
(Littler Mendelson, P.C.), for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case
was tried before me on August 24–27, 2015, in San Francisco,
California. Charging Party (Union) filed charges on October 20,
2014, and April 3, 2015, and an amended charge dated May 5,
2015, alleging violations by United Site Services of California
Inc. (Respondent) of Sections 8(a)(3) and (1) and 8(a)(5) and (1)
of the National Labor Relations Act, as amended (the Act). An
amended consolidated complaint was filed on July 21, 2015. Re-
spondent filed an answer to the amended consolidated complaint
denying that it violated the Act. On March 17, 2016 I issued a
decision finding that Respondent violated the Act. After the de-
cision was rendered, the Board issued a decision in American
Baptist Homes of the West d/b/a Peidmont Gardens, 364 NLRB
No. 13 (2016), a case that analyzed and applied Hott Shoppes to
UNITED SITE SERVICES OF CALIFORNIA, INC. 21
the permanent replacement of economic strikers, one of the cen-
tral issues presented in this case. The Board On November 3,
2016, thereafter remanded this case for further consideration in
light of its decision in Piedmont and further directed the analysis
of other alleged violations of 8(a)(3) and (1) along with an eval-
uation of whether the Respondent violated Section 8(a)(5) and
(1) by withdrawing recognition of the Union after receiving a
decertification petition. As directed by the Board in its remand
the parties were given the opportunity to file supplemental briefs
in the matter. After again considering the matter and based upon
the detailed findings and analysis set forth below, I again con-
clude that the Respondent violated the Act essentially as alleged.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find that
(a) At all material times, Respondent has been a corporation
with a place of business at 1 Oak Road, Benicia, California (Re-
spondent’s facility), and has been engaged in the business of
providing rental portable restrooms, temporary fencing, and
sanitation facilities.
(b) In conducting its operations during the 12-month period
preceding July 21, 2015, Respondent purchased and received
at Respondent’s facility goods valued in excess of $50,000 di-
rectly from points outside the State of California.
(c) In conducting its operations during the 12-month period
ending December 31, 2013, Respondent derived gross reve-
nues in excess of $250,000.
(d) At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. At all material times the following individuals held the po-
sitions set forth opposite their respective names and have been
supervisors of Respondent within the meaning of Section 2(11)
of the Act and agents of Respondent within the meaning of Sec-
tion 2(13) of the Act:
Steve Gutierrez - Area Manager
Aggie T. Haley - Human Resources Manager
Mark Bartholomew - Senior Vice President of Operations
Mike Kivett - Reno Area Manager
David Sattler - Supervisor/Lead Driver
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
United Site Services, Inc. is a company that provides portable
toilet and temporary fencing rentals. The company has multiple
facilities, but this case relates to the facility in Benicia, Califor-
nia. The company relies upon employees with varying job titles
to perform the work. The company employs the following types
1 Michael Knutsen, Javier Santiago, Oscar Reyes Perusquia, and Rich-
ard Rotti did not join the strike. (Jt. Exh. 1.)
of employees:
(1) Yard associates- whose work at the employer’s facility to
wash, inspect, prepare, and repair equipment;
(2) Pick Up an Delivery (P&D) driver’s-whose duties include
picking up and delivering portable toilets, installing holding
tanks, and completing any necessary repairs to equipment in
the field. P&D drivers must hold a Class C drivers license.
(3) Fence drivers- whose duties include the delivery and instal-
lation of fence. Fence drivers must hold a Class C driver’s li-
cense.
(4) Fence helper-whose duties are to assist the fence driver’s
with installation and delivery of fencing materials.
(5) Service technicians- whose duties are to drive from site to
site pumping out toilets or holding tanks and to clean and re-
stock the portable toilets. Periodically, after the trucks are filled
they must return to the facilities to empty their tanks. They
must also hold a Class C driver’s license.

On September 23, 2013, the Union filed a petition to represent
a bargaining unit of the employer’s workers. (GC Exh. 2.) On
November 21, 2015, the Union won the election. (Jt. Exh. 1.)
On January 7, 2014, the Board certified the Union as representa-
tive of the following Unit:
All full time and regular part-time Service Technicians, Lead
Service Technicians, Pick Up and Delivery Drivers, Mechan-
ics, Laborers, and Fence Installers employed by the Employer
at its 1 Oak Road, Benecia California facility, but excluding
Dispatchers, supervisors and guards as defined by the Act. (GC
Exh. 3.)
From February to July 2014, the parties engaged in negotia-
tions for an initial contract. The parties held multiple bargaining
sessions. In the course of this bargaining, unit employees twice
voted on contract proposals. On July 16, 2014, the employer
provided its Last Best Final Offer (LBFO). (R. Exh. 2.) On July
23, 2014, the employees unanimously rejected the proposal. (R.
Exh. 11–17.) At this same meeting the employees voted to au-
thorize a strike. Despite the authorization to strike the strike did
not begin immediately. The employees directed the Union to
investigate other options to put pressure on the employer before
going on strike. The Union also needed to seek approval from
the International Brotherhood of Teamsters for strike benefits.
After the efforts by the Union to put pressure on the employer
did not yield results satisfactory to the employees, they decided
to go on strike. On October 5, 2014, the Union notified the em-
ployer that it would strike the next day. (GC Exh. 5.)
The strike at the Benicia facility began on October 6, 2014. It
is undisputed that the strike was an economic strike. (Tr. 35:12–
13.) At the time of the strike, the unit consisted of 25 active
employees and a vacant P&D Driver position. Of the 25 em-
ployees 21 of them went out on strike with the majority picketing
the entrance to the employer’s facility every day of the strike.1
The employer had in place a contingency plan for the strike
which relied upon employees from other facilities to assist and
cover the striker’s positions. (Jt. Exh.1, GC Exh. 10.) The
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer also used temporary employees to cover its Bencia op-
erations who were hired through “Labor Finder’s” a temporary
employment agency. Also, on the first day of the strike, the em-
ployer through its human resources manager, Augeda Halley,
area manager, Steve Gutierrez, and vice president, Steve Wit
began hiring replacements. (Jt. Exh. 1 Stip. 21.) The offers were
made for “permanent full-time position[s], and to work indefi-
nitely even after the strike ended.” (R. Exh. 12–through 12–71.)
The written offers included the following language
UNITED SITE SERVICES OF CALIFORNIA, INC. 23
Permanent
Position
Name
Offer and Acceptances
Verbal Acceptance
Date and Time
(See Resp. Exh. 14)
Written Acceptance Date
and Time
(See Resp. Exh. 12-1
through 12-74)
Mechanic Michael Knutsen 10/14, 5:29 PM 10/14, 5:29 PM
Fence Driver James Matthews 10/6, 4:15 PM 10/6, 4:50 PM
Service Technician Christopher Orr 10/6, 9:30 AM 10/6, 9:30 AM
Service Technician Martin Escobar Segura 10/7, 7:15 AM 10/6, 4:15 PM
Service Technician Francisco Hernandez Rocha 10/7, 7:10 AM 10/6, 4:13 PM
Service Technician Armando Martinez Saucedo 10/7, 8:40 AM 10/13, 6:00 PM
Service Technician Alfonzo Meza 10/7, 7:55 AM 10/8, 11:19 AM
Service Technician Jorge Recinos (or Racinos) 10/7, 9:30 AM 10/8, 9:30 AM
Service Technician Desiree Martinez 10/10, 5:30 AM N/A
Service Technician Paul Barron 10/10, 5:00 AM 10/10, 5:00 AM
Service Technician Greg Beddoes 10/10, 5:30 AM N/A
Service Technician Javier Santiago 10/14, 7:20 PM 10/10, 7:30 PM
Service Technician Darryl Gaines 10/14, 6:43 PM 10/14, 6:43 PM
Service Technician Brian Flores 10/16, 1:00 PM 10/16, 1:00 PM
Service Technician Nicholas
Cermeno- Hernandez
10/16, 5:00 AM 10/16, 8:15 AM
Service Technician Alvin Williams 10/16, 1:29 PM 10/16, 12:29 PM
Service Technician Kevin Murphy 10/16, 2:50 PM 10/16, 7:00 PM
Yard Associate Joshua Johnson 10/6, 4:15 PM 10/6, 4:50 PM
Yard Associate Jesse Hernandez 10/13, 2:15 PM 10/14, 2:41 PM
Yard Associate Maurice Espinoza 10/16, 7:38 AM 10/6, 9:16 AM
Yard Associate Julio Campos 10/16, 12:39 PM 10/16, 12:59 PM
Yard Associate
Lester Moreno
25 10/16, 2:15 PM 10/18, 2:20 PM
Yard Associate Antoine Frazer 10/16, 2:47 PM 10/17, 7:20 AM
Pick Up & Delivery
Driver
Richard Wilkerson 10/8, 3:30 PM 10/14, 7:36 PM
Pick Up & Delivery
Driver
Antony Boatmun 10/10, 3:45 PM 10/13, 8:10 AM
Pick Up &
Delivery Driver
Michael Neitz 10/14, 1:22 PM 10/14, 1:22 PM
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
You understand and agree that you have been advised that a
strike or other active labor dispute exists between USS and
Teamsters Local 315 at the Benecia location and that the posi-
tion offered is as a permanent replacement for a striker who is
presently on strike against USS at the Benecia location. You
further understand that, as a permanent replacement, if the
strike ends, you will not be displaced to make room for the re-
turning strikers. . . . (emphasis in original). (R. Exh. 12–1
through 12–74.)
Included among the written offer was a written offer of ac-
ceptance. The document was titled, “Acceptance of Offer of
Employment as Permanent Replacement” and contained lan-
guage similarly to the offer indicating that the employee would
“immediately’ accept employment as a “permanent replace-
ment” and that the person would not be displaced once the strike
ended. (Exh. 12–1 through 12–74.)
The Human Resources Manager Halley began to make offers
and kept a log of the dates and times of offers and receipt of writ-
ten acceptance. The log contained the following information:
Despite the employer’s ongoing efforts to hire replacements
beginning on the first day of the strike, Respondent did not in-
form the Union of its hiring efforts until 3:40 p.m. on October
16, 2014. (GC Exh. 6.) The notification which arrived via email
advised that the employer had, “hired permanent replacements
to fill all of the positions vacated by the striking employees.”
(GC Exh. 6.)
The next evening on October 17, 2014, the Union held a meet-
ing and discussed the employer’s email of October 16, 2014,
with the strikers. Upon learning of the employers’ efforts to hire
replacements the strikers chose to return to work. (Tr. 141.) At
6:05 p.m. of that same evening, the Union emailed to Respondent
a letter terminating the strike and making an unconditional offer
of its employees to return to work. (GC Exh. 7.) On October 18,
2014, Respondent confirmed that there were no unit positions
available and advised that the striking employees had been
placed on a preferential recall list. The correspondence also re-
quested up to date contact information for all of the strikers. (GC
Exh. 8.) On October 22, 2014, the employer sent another email
requesting up to date contact information for the strikers. (GC
Exh. 9.) On October 23, 2014, the Union replied advising that it
would “confirm the correct addresses and provide updates as
necessary.” (GC Exh. 9.) On October 27, 2014, the Union pro-
vided some updated contact information. (GC Exh. 9.)
Respondent, thereafter, put in place its procedures for prefer-
ential recall. (R. Exh. 20.)
Under its process, the area manager, Steve Gutierrez would
make a determination that a position was vacant he would then
inform the Human Resources Manager Aggie Halley who would
then refer to the preferential recall list and contact two former
strikers with the highest seniority. She would contact them by
both calling their phone numbers of record and also mailing let-
ters to their address of record. If two employees accepted and
only one position was available the position would be offered to
the person with the most seniority and the less senior person
would remain eligible for preferential recall. If the person did
not accept the position then the employer considered their em-
ployment relationship ended at that point in time. (Tr. 268, 270.)
If Halley found there were no former strikers who held a position
to be filled, then Halley would offer it to a former striker in an-
other position with the understanding that they would still be el-
igible for preferential recall to their former or substantially sim-
ilar position. (Tr. 265.)
The first offer of reinstatement went out on December 8, 2015,
and continued through June 9, 2015. Sometime in mid-January
(a time when only three of the former striking employees had
returned to work) a petition was circulated among the employ-
ees. The petition contained the following language:
We the employees of United Site Services a 1 Oak Road, Beni-
cia CA 94510 are hereby giving notice to the Teamsters Local
315 that we do NOT (emphasis in original) want any associa-
tion or Representation from the Teamsters Local Union 315 ef-
fective immediately. (R. Exh. 9.)
The petition was signed by 24 employees and most signed with
dates next to their names. Some signed on January 5, 2015, oth-
ers, January 7, 2015, and two signed on February 11, 2015. Two
employees that signed the petition did not indicate the date they
signed. (R. Exh. 9.) The petition was delivered by Richard
Wilkerson, a permanent replacement employee to the Senior
Vice President of Operations Mark Barthholomew. Bartholo-
mew sent the petition to the Human Resources Manager Halley
and asked her to verify that the signatures on the petitions
matched signatures in the employees’ records. (Tr. 433.) Halley
conducted the verification process and reported back that in fact
the signatures matched. (Tr. 433.) By email dated March 27,
2015, Bartholomew sent a letter to the Union which set forth the
following:
We are in possession of objective evidence that your union no
longer represents a majority of the employees at United Site
Services a majority of the employees at the United Site Ser-
vices bargaining unit. Accordingly United Site Services
hereby withdraws recognition from your union in this unit ef-
fectively immediately. (GC Exh. 12.)

Despite the withdrawal of recognition, Respondent continued to
offer reinstatement to former striker’s with the last offer being a
Service Technician offer made to David Reeves who declined
and chose to remain as a P&D driver on June 9, 2015. (GC Exh.
48.)
B. Analysis
1. The failure to recall striking workers
The court in New England Health Care Employees Union v.
NLRB, 448 F.3d 189, 191–192 (2d Cir. 2006), succinctly set
Pick Up &
Delivery Driver
James Brown 10/15, 3:20 PM 10/15, 3:57 AM
UNITED SITE SERVICES OF CALIFORNIA, INC. 25
forth the applicable legal standards as follows:
Section 7 of the Act, 29 U.S.C. § 157, grants employees the
“right to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion.” See also 29 U.S.C. § 163 (“Nothing in this Act ... shall be
construed so as either to interfere with or impede or diminish in
any way the right to strike . . . .”). To implement this right, §
8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), makes it an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise” of their § 7 rights. And § 8(a)(3) of
the Act, 29 U.S.C. § 158(a)(3), makes it an unfair labor practice
for an employer to “discourage membership in any labor organ-
ization.” Under Supreme Court precedent, an employer that re-
fuses to reinstate economic strikers violates § 8(a)(3) unless it
can demonstrate that it acted to advance a “‘legitimate and sub-
stantial business justification [ *192].’” See NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614
(1967) (quoting NLRB v. Great Dane Trailers, 388 U.S. 26, 34,
87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967)). The hiring of perma-
nent replacement workers amounts to one such legitimate and
substantial business justification. See NLRB v. Int'l Van Lines,
409 U.S. 48, 50, 93 S.Ct. 74, 34 L.Ed.2d 201 (1972) (“[A]n em-
ployer may refuse to reinstate economic strikers if in the interim
he has taken on permanent replacements.”); Belknap, Inc. v.
Hale, 463 U.S. 491, 504 fn. 8, 103 S.Ct. 3172, 77 L.Ed.2d 798
(1983) (“The refusal to fire permanent replacements because of
commitments made to them in the course of an economic strike
satisfies the requirement of [Fleetwood Trailer ] that the em-
ployer have a legitimate and substantial justification for its re-
fusal to reinstate strikers.”) (internal quotation marks omitted).
Consequently, “[w]here employees have engaged in an eco-
nomic strike, the employer may hire permanent replacements
whom it need not discharge even if the strikers offer to return to
work unconditionally.” Belknap, 463 U.S. at 493, 103 S.Ct.
3172.
It is the burden of the employer to demonstrate that the per-
sons hired are in fact permanent replacements and further the
employer must establish a mutual understanding between em-
ployer and employee that that they in fact are permanent. Jones
Plastic & Engineering Co., 351 NLRB 61, 64 (2007). On Octo-
ber 17, 2014, the Union made a written offer to return to work
on behalf of all striking employees. Respondent advised that no
Unit positions were available because it claimed it had hired 27
individuals who it contended were permanent employees. (Jt.
Exh. 2.) As is discussed in more detail below, the evidence es-
tablished that Respondent failed to meet its burden of establish-
ing that many of the persons it designated as “permanent replace-
ments” were in fact permanent.
a. Desiree Martinez
Desiree Martinez was identified as one of the “permanent re-
placements.” Her credible testimony and the documentary trail
of evidence established the opposite. Ms. Martinez was a per-
manent employee of the company employed at the Respondent’s
Reno Nevada facility. She was asked by her manager, Mike Ki-
vett to go to work in Benecia to “help” during the strike. She
was unaware of the circumstances surrounding the request and
assumed it was to help for a special event and did not know she
was assisting with the strike. Thereafter, before she left, she was
told that she would be crossing a picket line and would be just
going there “temporarily.” (Tr. 52.) At no time did her manager
describe the assignment as “permanent” to her. (Tr. 52.) At no
time did he use the term “permanent replacement” to describe
her assignment. (Tr. 52–53.) Ms. Martinez credibly testified
that she worked in Benicia for a few weeks then returned to Reno
worked in Reno for a week and then returned to Benicia. The
first time she traveled to Benicia in a company vehicle, the sec-
ond time the company paid for a car rental. While she was in
Benicia she stayed in a motel at the company’s expense and re-
ceived reimbursement for food expenses. When she returned to
Benicia the second time, the job assignment was never described
to her as “permanent” and she did not understand the job to be
permanent in nature. (Tr. 56.) During her second period of as-
signment in Benicia she testified that Steve Gutierrez, a manager
while in the yard in Benicia asked her if she wanted to perma-
nently transfer. At the time she thought he was “just joking
around.” (Tr. 58.) She then testified that he again asked her
while in his office if she wished to permanently transfer. She
testified that she told him “no.” (Tr. 59.) She elaborated that the
reason she declined the offer to permanently transfer was that her
family is in Reno. The documentary evidence of record corrob-
orates her testimony. (See GC Exh. 10.) (See also GC Exh. 30)
(showing her work after she returned to Reno). Her testimony is
also in part corroborated by Respondent’s own witness Steve
Gutierrez who testified that when given the offer he was told,
“she had to think about what’s (sic) her husband going to do.”
(Tr. 485.)
The above evidence paints a clear picture that Ms. Martinez
was not a permanent replacement and there was no “mutual un-
derstanding” of her being a permanent replacement. More im-
portantly, the evidence reveals that not only was she not a per-
manent replacement but that the employer knew that she was not.
She testified that she directly told Gutierrez “no” and the inclu-
sion of her on a list of permanent replacements is a knowing and
intentional attempt to not only mislead but also to intentionally
block the return of strikers who had requested reinstatement in
violation of 8(a)(3 ) of the Act. The intentional misleading is pro-
bative of unlawful motivations and similarly calls into question
Respondent’s assertions regarding other purported “permanent
replacements.”
b. Greg Beddoes
Another of the claimed permanent hires was Greg Beddoes
who happens to be the father of Desiree Martinez discussed
above. Mr. Beddoes like his daughter lived and worked in Reno
during the time of the strike. He was also approached by Mike
Kivett to temporarily assist in Benicia. Like his daughter, when
he was approached, he was never told the assignment would be
permanent. (Tr. 70.) Upon arrival, he was also not told by any-
one (including Steve Gutierrez, the manager of Benicia) that the
assignment was permanent. (Tr. 70.) He also testified that
Gutierrez never described his work as that of a “permanent re-
placement.” (Tr. 71.) He further testified that after he first re-
ported to Benicia in October of 2014, he returned to work in
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Reno every other week. (Tr. 71.) He further described his as-
signment as working back and forth between Reno and Benicia
working 2 weeks in Benicia then returning to work a week in
Reno. When he arrived in Benicia, he stayed in a hotel at the
company expense and was provided reimbursement for food. He
testified that his last day of work in the Reno facility was De-
cember 28, 2014. He asserted that he was offered permanent
work by Gutierrez a couple of weeks after he arrived or “maybe
less than a couple of weeks after he got there.” (Tr. 74.) His
response to the offer was that he “had to think about that.” (Tr.
74). He testified that eventually he accepted the offer and
“signed papers and accepted the job for January 5, 2105.” (Tr.
74). Respondent in direct contradiction to Beddoes’ testimony
contends that he accepted a verbal offer on October 14, 2104, as
is evidenced by a hand-written notation by Human Resources
Manager Halley and signed a formal acceptance letter on that
date. (GC Exh. 24.) I credit the testimony of Beddoes as truthful
regarding his assertion that he told Gutierrez that he would have
to think about it and did not accept until much later. It was not
until late December and/or early January did Beddoes and Re-
spondent have a “mutual understanding” that he was permanent.
The documentary trail and the logical sequence of events also
supports Beddoes’ version of events. His back and forth work in
Reno resembled that of a temporary assignment and his last day
of work in Reno on December 28, 2104, supports his version of
events. His statement to the Board which was referenced during
the trial further corroborates his version. (Tr. 94.) Of note is the
fact that the purported Beddoes acceptance letter was dated Oc-
tober 10, 2014, and despite a line referencing date and time of
signing was not dated by him. I find that given Beddoes’ testi-
mony on this matter, a logical and reasonable inference from this
evidence is that the letter was retroactively dated as was Halley’s
note in a self-serving attempt to obfuscate the true facts of when
Beddoes was actually hired in Benicia permanently. This is sup-
ported by the admission/stipulation that Halley did not even re-
ceive the signed letter until sometime after November 29, 2014.
(Tr. 620–623.) The evidence surrounding this acceptance letter
calls into question the veracity of all of the letters that purport to
document acceptance of permanent positions.
It is clear from the above that Beddoes was not hired as a per-
manent employee until sometime in late December and didn’t
actually sign paperwork until approximately January 5, 2014. It
is also clear that Respondent knew that he was serving in a tem-
porary capacity until that time. In fact the official company time
card reports listed him as working for the Reno office up until at
least 12/ 19/ 2104. (GC Exh. 11.) Respondent placing him on
the list of permanent replacements when they knew he was serv-
ing in a temporary capacity was a knowing and intentional at-
tempt to not only mislead but also to intentionally block the re-
turn of strikers who had requested reinstatement in violation of
8(a)(3 ) of the Act.
c. Richard Wilkerson
Richard Wilkerson was employed by Respondent prior to the
strike at the Santa Clara facility. (Tr. 116.) He was employed as
a Quality Assurance Specialist working in the SJO (San Jose)
Field Operations Support Division. (Tr. 348.) Respondent con-
tends that Mr. Wilkerson was a permanent replacement and point
to an offer letter dated October 8, 2014, and purportedly signed
on October 14, 2014. Mr. Wilkerson was not called to testify so
there is insufficient credible evidence to establish that in fact the
person who signed the letter was in fact him. Nevertheless, the
offer of employment clearly stated that his employment was for
that of the position of Service Driver. Respondent’s own time-
card records directly contradict the assertion that he assumed the
position of Service Driver in October. In fact, the timecards
show him assigned to the “San Jose Operations” until December
1, 2014, when his designation is changed from operations to
“Service Tech.” Similarly, the site designated on the timecard
as his permanent work site is “SJO” San Jose.
Ana Flores, the Lead Dispatcher, who acted as the supervisor
in the absence of Steve Gutierrez overseeing all departments,
credibly testified that prior to arriving at Benicia, Wilkerson
worked in a quality control function and was “in charge of taking
care of “major customers” doing site visits to make sure every-
thing was ok and if the customers complained he would com-
municate with her about the problems. She testified that the
Santa Clara office performed different type of work that the work
performed at Benicia which she described as “office personnel.”
(Tr. 117.) She also noted that when he came to Benicia Wilker-
son was “helping us out with pickup and delivery. She further
credibly testified that on several occasions she was asked by
Wilkerson if she had heard “when he was going back to Santa
Clara.” (Tr. 117.) She further testified that he indicated that he
had talked to “the person that sent him” and “they weren’t telling
him anything either.” (Tr. 118.) She further testified that she
relayed Wilkerson’s questions to Gutierrez who responded he
didn’t know when Wilkerson would be returned to Santa Clara.
Wilkerson was thereafter returned to Santa Clara in June of 2015.
Respondent’s timecard records confirm his return and show a
change in his Service Tech title to that of Field Ops Support.
(GC Exh. 34 p. 8.)
The reasonable inferences to be drawn from all of the above
is that notwithstanding the “offer letter,” in fact Wilkerson was
temporarily “borrowed” from Santa Clara to work in Benicia and
was later returned to Santa Clara. The testimony of Ana Flores
directly supports the conclusion that Wilkerson himself under-
stood that the assignment was temporary and was anxious to re-
turn. The fact that he was returned to Santa Clara is even more
compelling evidence that his tenure at Benicia was not that of a
“permanent replacement.” In light of all of the above and spe-
cifically (1) the contradictions presented within Respondent’s
own records which show Wilkerson didn’t even assume the po-
sition of Service Tech until December which directly contradicts
the “offer letter”; (2) the Respondent’s noted permanent location
of his assignments as SJO within the jurisdiction of the location
of his initial assignment; (3) the credible testimony of Ms. Flo-
res; and (4) Wilkerson’s return to Santa Clara, I find that Re-
spondent failed to meet its burden of establishing the permanent
replacement status of Wilkerson. Moreover, the fact that he was
merely “borrowed” and the Respondent used the “offer letter” to
cover up his real status when combined with the actions dis-
cussed above relating to Beddos and Martinez demonstrates a
pattern of willful mendacity calculated to block the return of
striking employees in violation of Section 8(a)(3) of the Act. See
3D Enterprises Contracting Corp., 334 NLRB 57, 77–78 (2001),
UNITED SITE SERVICES OF CALIFORNIA, INC. 27
see also Dino & Sons Realty Corp., 330 NLRB 680, 684–685
(2000).
d. Nicolas Cermano-Hernandez
As was the case with Wilkerson, Respondent asserted that
Cermeno-Hernandez was a permanent replacement and signed
an acceptance letter dated October 16, 2014. (Jt Exh. 2 R. Exh.
12–16 & 17.) Mr. Cermeno-Hernandez did not testify and there
is insufficient evidence in the record to establish that in fact he
actually signed the acceptance letter. According to Respondent’s
business records, Mr. Cermeno-Hernandez was employed as a
seasonal worker with the title of Seasonal Temporary Service
Tech at the Respondent’s Santa Rosa facility. (GC Exh. 63 p. 5.)
In the documents referencing his hiring in July of 2014, it was
noted that he had been working with Respondent “every season
for the last 6 years.” (GC Exh. 63 p. 5). The actual Change of
Status/Personnel Action Notification form references his status
as “seasonal.” (GC Exh. 63 p. 6.) Respondent’s timecard records
reflect that at all times he remained classified as a Santa Rosa
Service Tech from at least October through December of 2014.
(GC Exh. 11 p. 9–13.) The site location was identified in the
records as “SRO.” (GC Exh. p. 9.) During the strike he worked
at the Benicia yard and drove a truck which belonged to the Santa
Rosa facility. (Tr. 114.) During this time frame he also worked
in Santa Rosa. (Tr. 115–116.) Sometime in December, he ad-
vised the dispatcher that “his work was done” and he was return-
ing to Mexico. (Tr. 115.) On February 23, 2015, an Employee
Separation Notice was signed by Respondent’s management of-
ficials effective March 6, 2015, noting that Cemeno-Hernandez
voluntarily resigned due to “personal reasons.” (GC Exh. 63 p.
8.) In June of 2015, Cemeno Hernandez reapplied for work in
Sacramento noting that he had previously worked at Benicia un-
til March of 2015, but the reason he gave for leaving was “lay
off.” (GC Exh. 63 p. 11.) He was hired as a Seasonal Service
Tech effective June 23, 2015, and a Change of Status/ Personnel
Action Notification Form was filled out referencing his hire.
(GC Exh. 63 p. 12.).
Again, Respondent’s own business records contradict its as-
sertions that Cermeno-Hernadez was a permanent replacement.
The reason that appears in his application for reemployment di-
rectly contradicts the Respondent’s records which assert that he
resigned due to personal reasons. A reasonable and logical in-
ference to be drawn from the evidence is that in fact he served at
the Benicia location in the same seasonal capacity (as he had pre-
viously served for the past 6 years) and that he was similarly laid
off because he was a seasonal worker. This conclusion is bol-
stered by the fact that despite the presence of Change of Status/
Personnel Action Notification forms in the record none appear
which would reference his change in status from a seasonal to a
permanent employee. The conclusion is also bolstered by the
fact that he was rehired in Sacramento as a seasonal employee.
Regardless, the inherent contradictions between Cermeno-
Hernandez’ application and the Respondent’s own timecard rec-
ords (which do not show him permanently assigned to Benicia)
make clear that Respondent failed to meet its burden of estab-
lishing that he was in fact a permanent replacement. Instead, the
evidence points to Cermeno’s own understanding that he was
laid off as a seasonal employee and was not a permanent
replacement. As noted in 3D Enterprises Contracting Corp.,
334 NLRB 57 (2001), “the law is that replacements for economic
strikers are presumptively temporary employees, and the burden
is on the employer to “show a mutual understanding between it-
self and the replacements that they are permanent.” (citing Han-
sen Bros. Enterprises, 279 NLRB 741(1986), enfd. mem. 812
F.2d 1443 (D.C. Cir. 1987). See also Towne Ford Inc., 327
NLRB 193, 204 (1998). Thus, I find that the utilization of
Cermano-Hernadez to block the return of striking employees vi-
olated Section 8(a)(3) and (1) of the Act.
e. Lester Moreno
Among those employees Respondent listed as a permanent re-
placement was Lester Moreno who Respondent claimed was
hired in the position of Yard Associate. As referenced above,
Respondent advised on October 16, 2014, that the company had
hired “permanent replacements to fill all vacant positions.” (GC
Exh. 6.) The hiring of Lester Moreno makes clear that this state-
ment was not truthful. On March 17, 2014, the Union sent a
letter indicating the termination of the strike and the uncondi-
tional offer to return to work. On October 18, 2014, at 11:21
a.m. counsel for Respondent acknowledged receipt of the letter
and indicated “I have confirmed that all the positions have been
filled with permanent replacements.” (GC Exh. 8.) The Re-
spondent’s records regarding the hiring of Moreno indicate that
he did not even accept a position until October 18, 2014, at 2:20
pm. (R. Exhs. 12–55.) Despite Respondent’s assertions on Oc-
tober 16, 2017, that “all vacant positions” had been filled, Re-
spondent knew or should have known that this was not true. In-
deed, Moreno didn’t even accept the position offered until after
the Union sent and the Respondent had by its own admission re-
ceived the striker’s unconditional offer to return to work. Re-
spondent’s purposeful attempts to deceive when contradicted by
its own records make clear that Moreno was not hired on October
16, 2014, nor was he hired prior to the Respondent’s receipt of
the unconditional offer to return to work. Respondent failed to
meet its burden to establish that this position had been filled by
a permanent replacement prior to the unconditional offer to re-
turn to work in violation of Section 8(a)(3) of the Act. “See
Home Insulation Service, NLRB 255 NLRB 311, 313 (1981),
enfd. mem. 665 F.2d 352 (11th Cir. 1981).”
f. Antoine Frazer
Respondent contended Antoine Frazer was a permanent re-
placement hired as a Yard Associate as of October 17, 2014. (Jt.
Exh. 2.) However, the undisputed evidence of record indicates
that he did not start his employment until December 8, 2014.
(GC Exh. 11, 64.) The reason for the delay in his start was a
failed background check which was a condition of his employ-
ment. The initial background check revealed an outstanding ac-
tive warrant. (Tr. 350–351, 591.) The Respondent thereafter af-
forded Frazer a second opportunity to pass a background check
and in fact ran a new background check. (GC Exh. 64 p. 5.) He
was hired after the second background check but it is unclear
from the documentary evidence of record whether in fact he
passed it a second time. (R. Exh. 12–27 GC Exh. 11 p. 64 p. 6.)
I find that at the moment that Frazer failed his background check,
Respondent had an affirmative duty to immediately offer the
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vacant position to one of the striking employees. While in some
employment contexts an employer might find it reasonable to
leave vacant positions open after background check failures and
give potential candidates multiple opportunities to pass back-
ground checks, the same is not true, when, as in this case, the
employer has an affirmative legal duty to reinstate strikers. In
the first instance, it is important to reiterate that striking employ-
ees remain employees. NLRB v. Fleetwood Trailer, Co., 389
U.S. 375 (1967). Upon Frazer’s failure of the background test
striking employees with actual job experience and without any
similar employment contingencies were waiting to be called
back into vacant positions Respondent easily could have made
efforts to recall one to fill the position but did not. Respondent’s
actions are further evidence of the pattern of demonstrated ef-
forts to block retuning strikers. I find the failure to recall a striker
to fill the position that became vacant by the failure of the back-
ground test violated Section 8(a)(3) of the Act.
g. Oscar Reyes-Perusquia (“Reyes”)
Oscar Reyes-Perusquia was an employee who chose to “cross
over” and work during the strike. He was employed as a Fence
Driver. (Jt. Exh. 1.) Respondent contended that he remained in
his position as Fence Driver during the strike. General Counsel
argued that this assertion was false and that in fact Respondent
effectively transferred Reyes into a Service Tech position to
block the recall of a Service Tech person into that role. General
Counsels position is in fact bourne out by the testimony and doc-
umentary evidence of record. The record reveals that instead of
serving as a Fence Driver, Reyes worked almost exclusively on
Service Route 6 performing Service Tech duties. (GC Exh. 10.)
Further, it was established that the duties of the particular jobs
were separated, and it was atypical for Fence Drivers to perform
Service Tech work. Ana Flores testified as follows:
Q. Did Service tech employees ever perform fencing work?
A. No.
Q. And did service tech employees ever perform yard work?
A. No.
Q. And what about pickup and delivery drivers did these em-
ployees perform service work?
A. No.
Q. Did the pickup and delivery drivers perform fencing work?
A. It was rare.
Q. And did the pickup and delivery drivers perform yard
work?
A. No.
Q. The fencing employees do they perform service tech work.
A. No. (Tr. 105.)
A reasonable conclusion to be drawn from the lack of any
clear documentation transferring Reyes into a Service Tech po-
sition permanently is that he was merely temporarily transferred
into a Service Tech position and therefore Respondent failed to
meet its burden of establishing that in fact he was a permanent
replacement in violation of the Act. See H. & F. Binch Co., 188
NLRB 720 (holding transferees not permanent therefore unlaw-
ful to reinstate strikers). See also MCC Pacific Valves, 244NLRB
931, 933 (holding that employer was obligated to hire strikers at
“initial” vacancies).
2. The labor finders hires
Among those whom Respondent contended were “permanent
replacements” included seven individuals who Respondent con-
tended were Labor Finders hires that were permanently con-
verted from temporary positions. This assertion does not with-
stand scrutiny when the documentary evidence in the record is
set against Respondent’s assertion that all positions had been
filled on October 16, 2014. The Labor Finders timecards and
work order records show that after October 16, 2014, seven in-
dividuals continued to be employed and paid by Labor Finders
(LF). (GC Exhs. 17, 18, 18, 19, 56.) Most significant is the fact
that the timesheets signed by these employees contained the fol-
lowing language, “All temporary employees assigned to Cus-
tomer by LF (“LF Personnel”) are employees of LF. LF is re-
sponsible for hiring, assigning disciplining, terminating and/or
reassigning LF Personnel; and, is solely responsible for estab-
lishing, providing, and paying wages and benefits to LF Person-
nel.” (GC Exh. 73.) In as much as the Union set forth its uncon-
ditional offer to return to work on October 17, 2104, and the
seven individuals were still being paid by Labor Finders, and by
their own agreements set forth in the signed timecards were still
employed by of LF after this date, Respondent failed in its bur-
den of establishing the permanence of these individuals and
therefore violated Section 8(3) and (1) of the Act. See Harvey
Mfg., 309 NLRB 465 (1992).
3. The “Effective Discharge” of 14 strikers.
Longstanding Board precedent makes clear that an “effective
discharge” results when and employer falsely claims to have per-
manently replaced economic strikers when in fact it has not. For
example, in American Linen Supply Co., 297 NLRB 137 (1989),
the Board held that an employer who informed lawful economic
strikers that they had been permanently replaced when in fact the
employer had not obtained such replacements effectively termi-
nated the strikers in violation of Section 8(a)3 and (1) of the Act.
In this case, Respondent knew or should have known that the
October 16, 2014, email in which it notified the Union that it had
hired permanent replacements to fill “all of the positions vacated
the strikers” was false. It was false not only because of those
employees it purposely attempted to masquerade as permanent
replacement discussed above but also because of the additional
seven individuals who were recruited through the temporary em-
ployment agency and were similarly not permanent at the time
of the Union’s unconditional offer to return to work. In addition,
Respondent’s own documents taken at face value reveal that both
Antoine Frazer and Lester Moreno had not accepted permanent
employment as of October 16, 2014, and were not bona fide per-
manent replacements. (R. Exh. 12–27 to 12–29, 12–53 to12–
55.) I find that Respondent effectively discharged 14 strikers as
of the date of its October 16, 2004, pronouncement in violation
of 8(3) and (1) of the Act. See Consolidated Delivery & Logis-
tics, Inc., 337 NLRB 524 (2002), enfd. 63 Fed. Appx. 520 (D.C.
Cir. 2003). See also W. C. McQuaide, Inc., 237 NLRB 177
(1978).
4. The 5 employees determined ineligible for recall
Economic strikers who maintain a right to reinstatement nev-
ertheless can be removes from recall consideration if 1) the
UNITED SITE SERVICES OF CALIFORNIA, INC. 29
employer made the striker a valid offer to return to work and the
striker rejected the offer, or 2) where the employer can demon-
strate that the former striker obtained regular and substantially
equivalent employment and unequivocally intends to abandon
the job he his struck job. Carruthers Ready Mix. Inc., 262 739
(1982), Alaska Pulp Corp., 326 NLRB 522 (1998).
(a) Walter Buckner
Walter Buckner was placed on Respondent’s preferential re-
call list on October 18, 2014. (Jt. Exh. 1.) No attempt was made
to recall him until January 9, 2015. (GC Exh. 48.) On or about
January 9, 2015, Human Resources Manager Halley claimed she
tried to reach Buckner by phone but was unable to leave a mes-
sage. (Tr. 277.) She thereafter sent a letter dated January 9, 2015
which noted that if Respondent did not receive a response by
3:00 p.m. 1/19/2015 the Company would “assume” he did not
want the position. (R. Exh. 13–18.) The letter however was
wrongly addressed to a former address despite the fact that Buck-
ner credibly testified that he informed Respondent by telephone
of a change in his address and in fact received correspondence at
the new address subsequent to his conversation with Respond-
ent’s officials. (Tr. 239.) Because the letter from Halley was
sent to his old address, he didn’t receive it until Saturday, Janu-
ary 24, 2015, 5 days after the expiration noted on the letter by
Halley. Upon receipt of the letter he contacted Halley and left a
message on her voicemail indicating that he had moved but re-
ceived the letter and that he wished to accept the job offer. (Tr.
242–243.) On Monday January 26, 2015, he then went to the
Benicia facility and spoke directly with Steve Gutierrez about
the job offer and explained that he wanted to accept the offer.
While at the facility on January 26, 2015, he signed the job offer
and Gutierrez faxed it back to Halley. (Tr. 244, GC Exh. 44.)
Later that day Halley contacted him and advised him that his re-
sponse was untimely and that the position was no longer availa-
ble. (Tr. 247.) He fully explained that the letter was sent to the
wrong address and the delay in his receipt and she indicated that
she would speak with someone about it and get back with him.
When she called him back approximately 30 minutes later, she
advised him that his was response was late and the “position was
closed.” (Tr. 247.) As of January 19, 2014, Buckner was de-
clared ineligible for preferential hire and received no other recall
offers. (Jt. Exh. 1, Tr. 248.)
In Easterline Electronincs Corp., 290 NLRB 834, 835 (1988),
the Board (citing NLRB v. Betts Baking Co., 428 F.2d 156, 158
(1970)) noted that in situations regarding the duty to respond to
an offer “[B]oth the employer and employee are bound by the
requirement of good faith dealings with each other.” Unques-
tionably, Buckner made good faith efforts to accept the offer
very soon after he became aware of it, not only did he call but
also went to the facility in person and signed the actual offer.
Respondent, on the other hand, violated its duty to act in good
faith. Despite Buckner’s evidence of the certified mail receipt
card that in fact confirmed the truthfulness of his assertions about
receipt date of the letter, Respondent refused to take into consid-
eration the delay caused by the mailing of the offer to the wrong
address. The time frame given Buckner to respond cannot be
said to have been reasonable under the circumstances presented.
See Easterline Electronincs Corp., supra at 835. I separately
find given the circumstances surrounding the offer, the lapsing
language in the offer i.e. “the company must receive you[r] re-
sponse no later than 3:00 p.m. on 1/19/2015” also renders the
offer invalid. (GC Exh. 44.) See for example, Martell Construc-
tion Inc., 311 NLRB 921 (1993) (concluding that offers were in-
adequate by virtue of the similar lapsing language). I find that
Respondent’s removal of Buckner from the recall list under the
circumstances set forth above violated Section 8(a)(3) of the Act.
(b) Robert Harris
Robert Harris was placed on the preferential recall list on Oc-
tober 18, 2014. (Jt. Exh. 1.) On June 11, 2015, an offer letter
was sent to Robert Harris regarding a Service Tech position.
Like Buckner’s letter the offer Harris received contained similar
lapsing language i.e. “the company must receive you response
no later than 3:00 p.m. on 6/19/2015.” (GC Exh. 42.) Harris
credibly testified that he did not receive any phone calls regard-
ing the recall offer. (Tr. 203.) During this time frame Harris was
working late hours and was not able to get to the post office dur-
ing regular post office business hours. He finally received the
offer on June 23, 2015. (R. Exh. 13–45.) After reading the lapse
language in the letter, he did not respond to the offer. He credi-
bly testified that he didn’t respond because “because it was too
late. The day I received it or picked it up would have been passed
the date.” (Tr. 203.) In view of his credible testimony regarding
the difficulties he faced retrieving the letter, his credible testi-
mony that he did not receive a phone call which was corrobo-
rated (Halley testified she didn’t remember calling him the short
response time frame given by Respondent (8 days), and his reli-
ance on the lapsing language in not responding when he received
the letter after the response date, I find the offer invalid. (Tr.
302.) In Carrutherrs Ready Mix, Inc., 262 NLRB 739, 749
(1982), the Board considered whether an employer’s telephone
calls to strikers were sufficient to satisfy the requirements of a
valid offer of reinstatement. The Board found that telephone
calls alone were insufficient to communicate an offer of rein-
statement” if they do not in fact reach the employee.” In so hold-
ing, the Board noted that an employer is bound to take “all
measures reasonably available to it to make known to the striker
that he is being invited to work.” Although the letter/ phone call
facts in this case are juxtaposed to those of Carruthers similar
reasoning applies. In this situation, Respondent had the correct
contact information of Harris available to it and when it did not
receive the delivery receipt and knew the letter had not reached
him it did not take reasonable steps to inform him that he was
being asked to return to work. I find the lapsing language ren-
dered the offer invalid and in the absence of other reasonable
steps to inform him rendered his disqualification from recall un-
lawful and in violation of Section 8(a) (3) of the Act.
(c) Ernesto Pantoja
Ernesto Pantoja was placed on the preferential recall list on
October 18, 2014. During his tenure he held the position of Util-
ity Driver. He held a Class A professional driving license which
allowed him to perform the highest level driving responsibilities
including dump runs. (Jt. Exh. 3; Tr. 369.) Pantoja was removed
from the preferential recall list on or about June 19, 2015. (Jt.
Exh. 1, GC Exh. 48.) The action that precipitated his
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disqualification from recall was his receipt of a June 11, 2015
letter offering him a position as a Service Tech position. (R. Exh.
13–82.) He testified that upon receipt of the letter he called Hal-
ley immediately and told her “he would rather wait for a posi-
tion—my position as a utility driver.” (Tr. 374.) When asked
what the differences between the Service Tech and Utility driver
he responded, “I think the name says it all. Utility Driver covers
all the positions and Service Tech goes to clean the bathrooms of
the worksites.” (Tr. 374.) He further testified that as a Utility
Driver he only spent 25 to 30 percent of the time doing what
would be classified as Service Tech work. (Tr. 375.) In as much
as Pantoja was never offered his former or a substantially similar
equivalent position his removal from consideration as eligible
for recall was improper and violated Section 8(a)(3) of the Act.
Laidlaw Waste Systems Inc., 313 NLRB 680 (1994).
(d) Jorge Rodriguez
Jorge Rodriguez was placed on the preferential recall list on
October 18, 2014. He was a Service Tech who was initially of-
fered a pickup and Delivery position February of 2015, but de-
clined it. Thereafter, late in February, he was offered a Service
Tech Position which he accepted but was not placed into the po-
sition because another striker who had more seniority than he
was awarded the position over him. (GC Exh. 48; Tr. 291.)
Another recall attempt was made on or about April 7, 2015.
Respondent sent a certified letter to Rodriguez which was re-
turned as undeliverable. (R. Exh. 13–109 to 13–110.) Despite
the fact that in the past Rodriguez had expressed clear intent re-
garding his interest in returning to work and the fact that Re-
spondent knew the letter hadn’t been delivered to him, Respond-
ent decided to no longer consider him eligible for preferential
recall without making any other efforts to contact him. (Tr. 295–
296.) This decision was unlawful an in violation of Section
8(a)(3) of the Act. See Alaska Pulp Corp., 326 NLRB 522, 528
(1998), finding unlawful the termination of reinstatement rights
when a letter offering reinstatement was retuned as undeliverable
and Respondent made no other efforts to contact despite other
available means such as through the Union.
(e) Daniel Ruiz
Daniel Ruiz was placed on the preferential recall list on Octo-
ber 18, 2014. He had been employed with Respondent as a Yard
Associate. (Jt. Exh. 1.) An offer of reinstatement was sent out
to him on January 21, 2015. Respondent never received a deliv-
ery receipt for this offer. Halley never spoke to Ruiz regarding
the offer and like Jorge Rodriguez was determined to be ineligi-
ble for preferential rehire when no response to the letter was re-
ceived. No efforts were made to follow up on the letter and Hal-
ley never spoke to Ruiz. The reasoning set forth above in Alaska
Pulp Corp. regarding Rodriguez applies equally to Ruiz. Re-
spondent had other available means to contact Ruiz including
through the Union but made no efforts to do so prior to consid-
ering him ineligible for recall and was therefore unlawful and
violated Section 8(a)(3) of the Act. See Alaska Pulp Corp., 326
NLRB 522, 528 (1998).
2 In American Baptist Home of the West, the Board recognized what
it characterized as, “the “widely accepted” principle that otherwise
5. Laidlaw Violations
It is well settled that that strikers who have been replaced by
permanent replacements remain employees entitled to full rein-
statement upon the departure of the replacements. Laidlaw
Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970). After each of the five
individuals above Buckner, Ruiz, Rodriguez, Harris, and Pantoja
were unlawfully determined to be ineligible for recall in viola-
tion of Section 8(a) (3) of the Act Respondent continued to place
persons into vacant positions that they could have been recalled
into and again violated the Act. More specifically other Service
Tech positions were filled after each was determined ineligible
for preferential recall. (GC Exh. 48; Jt. Exh.1 R. Exh. 21.)
6. The application of Hot Shoppes
While this matter was pending, the Board issued its decision
in American Baptist Homes of the West d/b/a Piedmont Gardens,
364 NLRB No. 13 (2016). In its decision, the Board analyzed
and provided further guidance regarding the application of the
legal principles espoused in Hot Shoppes Inc., 146 NLRB 802,
805 (1964), as it relates to the permanent replacement of eco-
nomic strikers. The Board noted that, “the permanent replace-
ment of strikers is not always lawful. The Board will find a vio-
lation of the Act if it is shown that, in hiring permanent replace-
ments, the employer was motivated by “an independent unlawful
purpose.” (citing Avery Heights, 343 NLRB 1301, 1305 (2004).
The Board after analyzing historical precedent concluded that,
“the phrase independent unlawful purpose” includes an em-
ployer’s intent to discriminate or to encourage or discourage Un-
ion membership.” Id. The Board further clarified that “Hott
Shoppes does not require the General Counsel to demonstrate the
existence of an unlawful purpose extrinsic to the strike but, rather
only that the hiring of permanent replacements was motivated by
a purpose prohibited by the Act.”
Applying the Board’s reasoning to the facts of this case, I find
that the evidence established that Respondent was motivated by
an independent unlawful purpose. At the outset it worth men-
tioning that Respondent maintained what it characterized as a
“Non-Union Philosophy.” Its Associate Handbook that contains
the following passage:
Non-Union Philosophy: United Site Services will do every-
thing in its legal power to prevent any outside, third party, who
is potentially adversarial, such as a union from intervening or
interrupting the one-on-one communications or operational free-
doms that we currently enjoy with our associates. (GC Exh. 29
p. 7.)
Respondent’s clear pattern of intentional and unlawful actions
described above were a reflection of its stated “Non-Union Phi-
losophy.” Contrary to its written policy, the policy that was ac-
tually carried out in practice was implemented without regard to
whether Respondent violated the law and done so with improper
intentions.2 The actual implementation of Respondent’s policy
as it took form in Respondent’s actions was used and intended to
punish strikers and discourage Union membership. As noted
above, when Respondent notified the Union that it had filled “all
lawful acts can be rendered unlawful when motivated by improper inten-
tions.” Id. (citations omitted).
UNITED SITE SERVICES OF CALIFORNIA, INC. 31
vacant positions” it knew or should have known that this was
false. This knowledge in and of itself is sufficiently probative of
“independent unlawful purpose.” The record is however replete
with other indicia of unlawful purpose. For example, the affirm-
ative efforts to mask sham replacements as “permanent” when
Respondent knew, or should have known, that they were not
“permanent” is substantial evidence of unlawful purpose and its
efforts to implement its “Non-Union Philosophy.” The unlawful
effective discharge of 14 employees also smacks of “independ-
ent unlawful purpose.” So too, the blocking of strikers from re-
turning to the workplace and determining them ineligible for re-
call evidences unlawful purpose. All of the above referenced
violations of the Act were in fact efforts which served to punish
strikers by not allowing them to return to the positions which
they could have immediately occupied after the strike and as will
be discussed in more detail part of Respondent’s efforts to cause
disaffection and cleanse its workplace of the Union. All of these
actions when viewed independently and taken together manifest
“intent to discriminate” and/or “intent to discourage Union mem-
bership” and thus establish “independent unlawful purpose” Ap-
plying the principles enunciated by the Board in American Bap-
tist Homes of the West d/b/a Piedmont Gardens to the facts of
this case, I find Respondent violated the Act.
Standing alone is the unlawful purpose which is evidenced in
the timing of Respondent’s notification to the Union. Instead of
acting in good faith and notifying the Union of its intentions to
replace strikers Respondent worked behind the scenes gathering
as many persons that it could attempt to pass as “permanent re-
placements” before providing the Union with any notification.
The court in New England Health Care Employees Union ad-
dressed a question regarding whether the Board properly found
that an employer’s decision to keep the hiring of permanent re-
placements secret until the employer could “get as many bodies
hired before the union found out” could support the finding of an
“independent unlawful purpose.” The court noted:
Absent such countervailing considerations, and even if one
adopts the Board's own analytic framework, logic suggests that
an employer seeking to enhance its bargaining leverage by hir-
ing permanent replacements would have every incentive to
publicize the effort, and that an employer seeking only to pro-
long its ability to withstand the strike would be indifferent to
whether the strikers and the union knew what it was doing.
Conversely, it would appear that employers with an illicit mo-
tive to break a union have a strong incentive to keep the ongo-
ing hiring of permanent replacements secret. The replacement
of over half of a unionized workforce with nonunion workers
would devastate the union's power and credibility. An em-
ployer seeking to land such a blow cannot simply announce the
hiring of large numbers of replacements, because in order to
justify a refusal to allow striking workers to return to work un-
der the “permanent replacement” safe harbor, the employer
must have achieved an employment relationship with the per-
manent replacements somewhere between “a mere offer, unac-
cepted when the striker seeks reinstatement” and “actual arrival
on the job.” See H & F Binch Co. v. NLRB, 456 F.2d 357, 362
3 Alternatively, I would find that the above described false claims and
delay in providing the Union notice of the permanent replacement of
(2d Cir.1972). So an employer seeking to punish strikers and
break a union therefore needs enough time to establish an em-
ployment relationship with a large number of permanent re-
placements before the union can react by offering to return to
work, and will therefore have a strong incentive to keep the re-
placement program secret for as long as possible.
Id. at 195–196.
An employer who waits until it has rounded up enough em-
ployees to falsely claim all of the positions are filled before no-
tifying the Union of its decision to replace employees creates a
“logical implication” that Respondent’s decision was the product
of an “illicit motive.” See American Baptist Homes of the West
d/b/a Piedmont Gardens, supra at fn. 15. An employer with an
illicit motive of breaking a union has a strong incentive to wait
until after it can claim to have hired all of its alleged permanent
replacements to notify strikers because once the strikers find out
about the decision to replace them they could immediately un-
conditionally offer to return to work. In this case, the employer
began its striker replacement efforts on the first day. Had the
strikers been informed on the first day they might have voted to
unconditionally return that very same day, possibly even within
hours. I find that given all of the evidence of other unlawful acts
in this case, Respondent’s delay before notifying the Union of
its decision to replace strikers was calculated to deny strikers the
opportunity of returning to work and an attempt to punish strik-
ers, “discourage union membership” and manifests a desire to
interfere with protected activity.
I find examining the totality of the evidence including the ev-
idence specifically referenced in the above paragraphs that Gen-
eral Counsel has sustained its initial burden of showing that an
independent unlawful purpose was a motivating factor in the em-
ployer’s decision to permanently replace economic strikers.
Thus, the burden shifts to show that it would have taken the same
action even in the absence of unlawful purpose. I find that Re-
spondent has failed in this regard. Moreover, I find its asserted
reasons “to minimize training costs, reduce turnover, and main-
tain customer service levels” are mere pretexts. The reasons set
forth by Respondent are simply logically inconsistent with the
hiring of replacements. In the first instance, new employees
would no doubt incur more training costs as well as the undis-
puted demonstrated additional costs to convert temporary Labor
Finder’s employees to permanent status. Secondly, the strikers
knew the work, knew the routes and had been performing the
work in a satisfactory fashion. Had Respondent been concerned
about customer service levels and “turnover” it could have on the
first day of the strike disclosed to the strikers its plan to replace
them to induce them to abandon the strike and return to work.
The reasons advanced by Respondent are simply not credible and
don’t even address the critical issue of why it waited until it
falsely claimed it had filled positions to disclose the hiring of
permanent replacements. Thus, I find, that Respondent violated
Section 8(a)(3) and (1) of the Act by failing to reinstate perma-
nently replaced economic strikers upon their unconditional offer
to return to work.3
strikers is “inherently destructive” of employees’ right to strike. See
Great Dane, 388 U.S. 26 (1967). The right to strike also includes
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. The Withdrawal of Recognition.
It is established law that “an employer may not withdraw
recognition from a union while there are unremedied unfair labor
practices tending to cause employees to become disaffected from
the union.” Broadway Volkswagen, 342 NLRB 1244, 1247
(2004) (citations omitted). In determining whether a causal re-
lationship exists between the unremedied unfair labor practices
and the loss of union support, the Board considers the following
factors: (1) the length of time between the unfair labor practices
and the withdrawal of recognition; (2) the nature of the viola-
tions, including the possibility of a detrimental or lasting effect
on employees; (3) the tendency of the violation to cause employ-
ees disaffection; and (4) the effect of the unlawful conduct on
employees' morale, organizational activities, and membership in
the union. Master Slack Corp., 271 NLRB 78, 84 (1984). See
also, Beverly Health & Rehab Services, 346 NLRB 1319 (2006).
Applying these factors here, I conclude that the Respondent's
violation of the Act by refusing to recall striking employees
would likely cause the Union to lose support among employees.
I find that the legion of unfair labor practices, discussed above,
would, when viewed objectively, tend cause employee disaffec-
tion given that the withdrawal of recognition occurred a mere 10
weeks after the unfair labor practices were committed. I also
find that the unlawful refusal to reinstate union strikers and in-
stead employing others not sympathetic to the strike would,
when viewed objectively, have the tendency to cause disaffec-
tion. Also, the effects of the unfair labor practices were both
detrimental and lasted through the time the withdrawal petition
was circulated. See D&D Enterprises, 336 NLRB 850, 859
(2001). I find strong and compelling objective evidence in the
record to show that a mere 10 weeks prior to the unfair labor
practices there was a lack of disaffection. The Union won a
Board certified election, the union members were actively par-
ticipating in union affairs and the majority chose to strike with
only 4 choosing to cross the picket line. This lack of prior disaf-
fection is strong evidence of the causal connection to the unfair
labor practices. See Bunting Bearings Corp., 349 NLRB 1070
(2007), holding that causal connection established in part by lack
of prior evidence of disaffection. It is apparent that any Union
loss of support among employees was causally related to the un-
fair labor practices discussed above.
In the alternative, I agree with General Counsel’s assertion
that in view of the fact that all of the replacements are regarded
as illegitimate, Respondent cannot demonstrate an actual loss of
majority. Discounting the illegitimate replacements, the Unit
consisted of 25 employees only 7 of which constitute valid sig-
natures. (GC Br. at 92–93, Jt. Exh. 1, ¶¶27, 33.) I therefore find
that the Respondent's withdrawal of recognition of the Union vi-
olated the Act.
CONCLUSIONS OF LAW
The Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
enmeshed within it not only the right to strike but also the right to end
the strike and return to work.
4 General Counsel argued that “search for work” and “work related
expenses” ought to be charged to Respondent regardless of whether the
(1) The Respondent violated Section 8(a)(3) and (1) of the
Act by failing to reinstate the economic strikers upon their un-
conditional offer to return to work.
(2) The Respondent violated Section 8(a)(3) and (1) of the
Act by falsely claiming replacements were permanent when in
fact they were not.
(3) The Respondent violated Section 8(a)(3) and (1) of the
Act by “effectively discharging” 14 employees.
(4) The Respondent violated Section 8(a)(3) and (1) of the
Act by declaring employees ineligible for recall.
(5) The Respondent violated Section 8(a)(3) and (1) of the
Act by replacing strikers with an independent unlawful motive.
6. The Respondent violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition of Local 315 as the bargaining rep-
resentative of the employees at Respondent’s Benicia facility.
REMEDY
Having found Respondent has engaged in certain unfair labor
practices, I find Respondent must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
(a) Respondent shall be required to reinstate all Unit employ-
ees who engaged in the strike and make whole in all respects for
all losses whatsoever resulting from Respondent’s unlawful ac-
tions and its failure to reinstate the strikers beginning October
17, 2014. Back pay shall be computed on a quarterly basis from
the date of the failure to reinstate October 17, 2017, to the date
of proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010). Respondent shall file a report with the
Regional Director for Region 20, within 21 days of the date the
amount of back pay is fixed, either by agreement or Board order,
a report allocating the backpay award to the appropriate calendar
year(s). AdvoServ of New Jersey, 363 NLRB No. 143 (March
11, 2016). The Company shall also Compensate employees for
the adverse tax consequences, if any, of receiving one or more
lump-sum back pay awards covering periods longer than 1 year.
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014).4
(b) Respondent will also be ordered to recognize and bargain
in good faith with the Union as the exclusive bargaining repre-
sentative of the Unit. Further, in the event that Respondent
changed the units terms and conditions of employment following
its withdrawal of recognition from the Union, upon the Union’s
request rescind such changes and restore the status quo ante and
make whole the unit employees for losses in earnings and other
benefits which they may have suffered as a result of such
changes.
(c) Respondent shall upon resumption of bargaining, bargain
in good faith with the Union on request for the period set forth
in Mar-Jac Poultry Co., 136 NLRB 785 (1962).
discriminate received interim earnings during the period. As the Board
has yet to authorize such as part of make whole relief, I decline to award
it as a remedy.
UNITED SITE SERVICES OF CALIFORNIA, INC. 33
(d) Respondent shall schedule a meeting during work hours
with its employees and in the presence of a Board Agent read the
attached notice to employees in English and Spanish. In the al-
ternative, the Respondent shall arrange for a Board agent to read
the notice in English and Spanish to employees during work
hours in the presence of Respondent’s supervisors.
(e) Respondent will be ordered to post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, United Site Services of California, Inc.
(Benicia, CA), its officers, agents, successors, and assigns, shall
1. Cease and desist from engaging in the following conduct
(a) Failing to reinstate the economic strikers upon their un-
conditional offer to return to work.
(b) Discharging strikers upon their unconditional offer to re-
turn to work.
(c) Failing and/or refusing to recall employees to their former
or substantially equivalent positions of employment.
(d) Terminating employees’ reinstatement rights after tender-
ing inadequate or invalid offers of reinstatement.
(e) Withdrawing recognition of Local 315 as the bargaining
representative of the employees at Respondent’s Benicia facility
and thus failing to bargain with the Union.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) All strikers shall be offered reinstatement to their former
positions if reinstatement has not already occurred and shall
make the employees whole in all respects for any loss of earnings
and other benefits suffered as a result of the unlawful conduct in
the manner set forth in the remedy section of the decision. . Com-
pensate the employees for the adverse tax consequences, if any,
of receiving a lump-sum backpay award, and shall file a report
with the Regional Director for Region 20, within 21 days of the
date the amount of back pay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appro-
priate calendar year(s).
(b) Preserve and provide within 14 days at a reasonable place
designated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records and re-
ports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the
amount of back pay due under the terms of this Order.
(c) Recognize and bargain in good faith with the Union as the
exclusive bargaining representative of the Unit. Further, in the
event that Respondent changed the units terms and conditions of
employment following its withdrawal of recognition from the
Union, upon the Union’s request rescind such changes and re-
store the status quo ante and make whole the unit employees for
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
losses in earnings and other benefits which they may have suf-
fered as a result of such changes.
(d) Within 14 days after service by the Region, post at its fa-
cility in Benicia County California copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director after being signed by the Respondent's
authorized representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In addition to physical
posting of paper notices, the notices shall be distributed electron-
ically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since Octo-
ber 17, 2014.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. April 3, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
The Teamsters Local 315, IBT is the employees representative
in dealing with us regarding wages, hours or other working con-
ditions of employees in the following unit:
All full time and regular part-time Service Technicians, Lead
Service Technicians, Pick Up and Delivery Drivers, Mechan-
ics, Laborers, and Fence Installers employed by the Employer
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at its 1 Oak Road, Benicia California facility, but excluding
Dispatchers, supervisors and guards as defined by the Act.
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT fire employees or otherwise discriminate against
employees because of their participation in a lawful strike or be-
cause of their support for Teamsters Local 315, IBT, or any other
labor organization.
WE WILL NOT fail or refuse to reinstate employees engaged in
a lawful economic strike, upon their unconditional offer to return
to work, where it is shown, as in this case that we were motivated
by an independent unlawful purpose in hiring permanent re-
placements for the striking employees.
WE WILL NOT fail or refuse to reinstate employees engaged in
a lawful economic strike to their former or substantially equiva-
lent positions, following their unconditional offer to return to
work where it is shown, as in this case that we were motivated
by an independent unlawful purpose in hiring permanent re-
placements for the striking employees.
WE WILL NOT fail or refuse to recall unreinstated economic
strikers to their former or substantially equivalent positions, fol-
lowing their unconditional offer to return to work, when vacan-
cies exist in those positions.
WE WILL NOT terminate our employees reinstatement rights af-
ter tendering to them inadequate and invalid offers of reinstate-
ment.
WE WILL NOT withdraw recognition from the Union or refuse
to recognize and bargain with the Union as your bargaining rep-
resentative.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the Act.
WE WILL make all strikers whole for any loss of earnings and
other benefits suffered as a result of our unlawful actions.
WE WILL, within 14 days from the date of the this Order, offer
our employees who went on strike on October 6, 2014, and who
have not yet been reinstated, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, dismissing, if necessary any
permanent and nonpermanent replacements hired during the
strike.
WE WILL make whole the employees who went on strike on
October 6, 2014, and who have not yet been reinstated, and the
employees who may have been reinstated but whose reinstate-
ment was delayed because a permanent replacement supposedly
occupied their position on October 17, 2014, for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the this Order, re-
move from our files any reference to our unlawful termination,
termination of reinstatement rights, and/or failure to reinstate the
striking employees, and we will, within 3 days thereafter, notify
each of them in writing that this has been done and that our un-
lawful failures will not be used against them in any way.
WE WILL, on request, bargain with the Union as your repre-
sentative, and for 12 months thereafter as if the certification year
had not expired, about your wages, hours, and other working
conditions. If an agreement is reached with the Union, we will
sign a document containing that agreement.
UNITEDSITE SERVICES
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20-CA-139280 by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1099
14th Street, N.W., Washington, D.C. 20570, or by calling (202)
273-1940.
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