All Service Plumbing & Maintenance, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 1, 2011

15-CA-019433 (N.L.R.B. Dec. 1, 2011)

JD(ATL)–33–11
Baton Rouge, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
ALLSERVICE PLUMBING AND
MAINTENANCE, INC.
and CASES 15-CA-19433
15-CA-19456
UNITED ASSOCIATION OF 15-RC-8819
JOURNEYMEN AND APPRENTICES
OF THE PLUMBING INDUSTRY OF
THE UNITED STATES AND CANADA,
LOCAL 198
Beauford D. Pines and
Zachary E. Herlands, Esqs.,
for the Acting General Counsel.
Corey Orgeron, Esq. (Orgeron Law Firm),
for the Respondent.
Julie Richard-Spencer, Esq.
(Robein, Urann, Spencer, Picard &
Cangemi, APLC),
for the Charging Party.
DECISION
Statement of the Case
ROBERT A. RINGLER, Administrative Law Judge. This case was tried in Baton Rouge,
Louisiana, from June 22 to 24, 2011. The original charge1 in this proceeding was filed by the
United Association of Journeymen and Apprentices of the Plumbing Industry of the United
States and Canada, Local 198 (the Union) on February 9, 2010.2 The consolidated complaint
(the complaint) alleged that Allservice Plumbing and Maintenance, Inc. (the Company or
Respondent) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act)
by, inter alia: engaging in surveillance of, threatening and interrogating its employees; posting a
security guard at a representation election; laying off Brady Barbour, Doug Diamond, and
Michael Grimes because of their Union activities; laying off Barbour because he was

1 I find that the underlying charges were appropriately filed and served. (GC Exh. 1).
2 All dates herein are in 2010, unless otherwise stated.
JD(ATL)–33–11
2
subpoenaed to testify in a representation case hearing conducted by the National Labor Relations
Board (the Board); and laying off Grimes because he was identified in an unfair labor practice
charge. See (GC Exh. 1(f)).
In addition to the above-described charges, the Union filed several objections to a 5
representation election conducted by the Board on February 19. These objections were based
upon the same evidentiary record as the complaint and were, as a result, heard simultaneously.
On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the parties’ briefs,4 I make the following:10
Findings of Fact
I. Jurisdiction
15
At all material times, the Company, a Louisiana corporation, with an office and place of
business in Baton Rouge, Louisiana (the facility), has been a plumbing contractor, which
performs residential and commercial construction. (GC Exh. 2). In 2010, in conducting its
operations, it provided services valued in excess of $50,000 for North Oaks Health System, an
enterprise located within the State of Louisiana that was directly engaged in interstate commerce. 20
(GC Exhs. 1(aa), (qq)). In addition, the Company annually purchases and receives from
Coburn’s Supply, an entity located within Louisiana, supplies valued in excess of $50,000,
which were received from points located directly outside of Louisiana. (GC Exhs. 1(qq), 2, 7)).
Based upon the foregoing, I find, that the Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. I further find that the Union is a labor 25
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background30
The Company provides commercial and residential plumbing services to public school

3 Prior to the issuance of the complaint, the Acting General Counsel commenced an enforcement action in
U.S. District Court for the Eastern District of Louisiana, which sought to compel the Company’s
compliance with an investigatory subpoena. This action resulted in the U.S. District Court issuing a
protective order. (GC Exh. 1(jj)). An analogous protective order was issued by the undersigned at the
hearing, which sealed all documents previously covered by the U.S. District Court’s protective order.
(Judge’s Exh. 1).
4 Counsel for the Acting General Counsel was granted 7 days from the close of the hearing to submit copies
of certain voluminous exhibits, i.e. GC Exhs. 85–88, 90–92, that were produced at the hearing, which he
was logistically unable to photocopy at the hearing site. These exhibits were inspected, offered, and
admitted at the hearing, and timely submitted thereafter. Respondent’s counsel was granted 7 additional
days to inspect GC Exhs. 85–88, 90–92, and then file a motion, if appropriate, to supplement these exhibits
with any inadvertently omitted pages. The Company, subsequently, and without explanation, attached
several, apparently new, unmarked documents to its brief, which did not appear to be pages omitted from
GC Exhs. 85–88, 90–92. The Company’s submission was unaccompanied by a motion to: further
supplement the record; seek judicial notice; or reopen the record. These exhibits are, therefore, rejected.
Thus, although the Company’s brief and accompanying spreadsheet summary were considered, the
attached exhibits were not.
JD(ATL)–33–11
3
systems, health care facilities, and retail and commercial operations. Luke Hall is the vice
president, general manager and master plumber,5 and his spouse, Janice Hall, is the president and
operations officer.6 The Company’s workforce, which consists primarily of plumbers,
apprentices, laborers, and helpers, ebbs and flows with business demands, and ranges from 10 to
15 employees at a given time. The Company hires staff on temporary and permanent bases. The 5
key distinction between temporary and permanent employees, however, is not temporal in
nature;7 the primary distinction is that permanent employees receive health insurance and other
benefits.
B. Prior 8(f) Agreements with the Union10
The Company and Union have been parties to 8(f) agreements.8 (GC Exhs. 3–4). Their
first agreement ran from June 4, 2003 to June 30, 2004 (the 03–04 CBA). Their second
agreement ran through July 31, 2005 (the 04–05 CBA). During the term of the 04–05 CBA, the
Union filed an action against the Company in U.S. District Court concerning its ongoing failure 15
to timely remit dues and benefits payments. A default judgment was consequently entered
against the Company, which required payment of its delinquency. (U. Exhs. 1–2; GC Exhs. 5–
6). The Company, subsequently, terminated its 8(f) relationship.
C. Union’s Organizing Drive20
In late-2009, following the cessation of its 8(f) relationship with the Company, the Union
launched a campaign to organize the Company’s plumbing workforce. Its efforts, which
included jobsite visits, leafleting, and meetings, culminated in a February 19 election.
25
1. Jobsite Visits
Charles LeBlanc, Union organizer, testified that, on December 14, 2009, he visited the
Company’s North Oaks Medical Center (North Oaks) and South Fork Elementary School (South
Fork) jobsites. He recalled advising employees about the Union, and distributing business cards, 30
authorization cards, and informational pamphlets. (GC Exhs. 42–44).
At North Oaks, LeBlanc met with Diamond, Joe Lungrin, Grimes, and others. He
recollected Lungrin asking, “what if we don’t want to be Union?” He recalled answering that
unionizing was an employee prerogative, with Lungrin succinctly responding that the Company 35
was a nonunion enterprise. He stated that he told Lungrin that there were more Union supporters
than he realized, and illustrated his point by having Grimes, a Union member, sign an

5 The Company stipulated that Mr. Hall was a 2(11) supervisor and 2(13) agent.
6 The Company stipulated that Ms. Hall is a 2(13) agent, but, denied that she was a 2(11) supervisor. It is
undisputed that she uses independent judgment to hire, discipline, and discharge employees, and that Mr.
Hall considers himself and Ms. Hall to be the Company’s sole supervisors. Based upon the forgoing, I find
that she is a 2(11) supervisor.
7 Temporary employees are not hired with a set ending date and may remain employed indefinitely. (GC
Exh. 6).
8 Under Section 8(f) of the Act, the Company, a construction industry employer, granted recognition to the
Union, without regard to the establishment of its majority status. See John Deklewa & Sons, 282 NLRB
1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F. 2d 770 (3d Cir. 1988).
JD(ATL)–33–11
4
authorization card in his presence.
Grimes confirmed LeBlanc’s account. He testified that, after LeBlanc departed, Lungrin
telephoned Mr. Hall and alerted him about the Union’s campaign. He recalled overhearing
Lungrin tell him that, “the Union is here trying to get the people to go Union.” After the call 5
ended, he related that Lungrin stated that, “Luke said that he would close his doors before he
went Union.” This exchange was witnessed by employees Shannon Batiste and Lance
McDaniel.
Although Lungrin initially denied telephoning Mr. Hall about the campaign, he 10
ultimately admitted the call. He acknowledged witnessing Grimes sign an authorization card,
and stating that, if the company unionized, it would close. He explained, however, that he solely
meant that the Company would be unable to afford to pay union scale wages,9 and contended
that this forecast was solely his opinion.
15
Mr. Hall testified that he was alerted about the campaign by employees, who were
approached by LeBlanc at North Oaks and South Fork. He denied threatening plant closure.
As a threshold matter, I fully credit LeBlanc’s and Grimes’ testimonies concerning
LeBlanc’s North Oaks visit. I found them both to be reliable witnesses, with credible and 20
truthful demeanors. They were each consistent, and equally helpful on direct and cross-
examination. Their accounts were largely corroborated by Lungrin.
I do not credit Mr. Hall’s denial of the plant closure threat. I found him to be a less than
credible witness, who while extremely helpful on direct, appeared argumentative, difficult, and 25
sporadically sarcastic on cross-examination. As will be discussed under my analysis of the
layoffs at issue herein, much of his testimony was either implausible or inconsistent.10
2. Representative Petition
30
On January 11, the Union filed a certification of representative petition (the petition) with
Region 15 (the Region) of the Board. The petition sought an election amongst the following
bargaining unit of employees (the unit):
All plumbers, plumbers helpers, and apprentice plumbers . . . but, excluding 35
laborers, clerical employees, and professional employees, guards and supervisors
as defined by the Act.

9 He testified, “I said Luke Hall can’t afford to go Union, you all want $30 or $40 an hour for each man, he’d
go under, he’d have to shut the doors.” (Tr. 514).
10 Along these lines, I do not credit Lungrin’s testimony that the plant closure threat was solely his prediction,
and not made by Mr. Hall. First, I found him to be a less than credible witness, who appeared well-
rehearsed, and overly eager to avoid attributing an adverse statement to his former employer. Second, I
find it likely that Lungrin, who openly admitted disdain for the Union, selectively avoided testifying in a
manner that he perceived might be helpful to the Union’s interests. Finally, I find it plausible that the
threat, which was made immediately after Lungrin’s call to Mr. Hall ended, was merely a reiteration of Mr.
Hall’s commentary.
JD(ATL)–33–11
5
(GC Exh. 7). The parties ultimately entered into a Stipulated Election Agreement, which set an
election for February 19.
3. Hooters
5
On February 11, the Union held an organizing meeting at Hooters restaurant in Baton
Rouge, Louisiana. LeBlanc testified that he arrived at 6 pm, and sat at a 10-person table. He
reported that, within minutes of his arrival, Lungrin appeared and sat at another table, within the
purview of both his table and the entrance. He stated that Lungrin languished for 30 minutes,
and observed who attended the Union meeting. He related that, upon exiting, Lungrin stopped to 10
talk to Grimes and Christopher Donaldson.11
Grimes testified that Donaldson, his friend, accompanied him to Hooters. He stated that,
upon arriving, he encountered Lungrin, who asked whether he was attending the Union meeting.
15
Brian Hernandez, a Company plumber, testified that he also came across Lungrin at
Hooters. He related that Lungrin approached him outside of the restaurant and asked whether he
was a Union member, which he promptly denied.
Lungrin acknowledged visiting Hooters. He indicated that he accompanied McDaniel, 20
his nephew, who wanted to observe the meeting. He acknowledged seeing Grimes, but, denied
asking him whether he was going to the meeting. He failed to discuss conversing with
Hernandez.
I fully credit LeBlanc’s, Grimes,’ and Hernandez’ accounts regarding Hooters. Their 25
testimony was credible, plausible, and essentially uncontradicted. For the many reasons
previously discussed, I do not credit Lungrin’s testimony, to the extent that it was inconsistent
with their accounts.
4. Leafleting30
Leblanc credibly testified that, on February 18, he distributed an organizing handout at
the facility. (GC Exh. 45). He stated that, upon receiving the handout, Lungrin responded with a
profanity laced tirade. He indicated that, after he replied with additional profanity, Lungrin, who
was now at the facility’s entrance, shouted that the Company was, “a non-Union shop and . . . 35
would always be . . . .” Lungrin corroborated this encounter.
5. February 19 Election
i. Results40
On February 19, the Board held an election at the facility, which the Union lost by a wide
margin. The tally of ballots provided:

11 Donaldson, a plumber and Union member, was employed by an HVAC contractor at North Oaks.
JD(ATL)–33–11
6
Category Quantity
Approximate number of eligible voters 12
Number of votes cast for the Union 1
Number of votes cast against the Union 6
Number of challenged ballots 7
(GC Exh. 1(rr)). LeBlanc credibly testified that, at the preelection conference, the Company’s
attorney wrote on the Excelsior list and stated that he was memorializing his challenges.
5
ii. Election Security
The Company hired Leonardo Moore, a homicide lieutenant with the East Baton Rouge
Sheriff’s Department, to provide election day security. (GC Exh 46). Ms. Hall testified that he
brought “order to the process.” Mr. Hall testified that he retained Moore because he was 10
concerned that Leblanc’s and Lungrin’s verbal dispute, which occurred during the previous day,
could escalate at the election. He added that both Lungrin and LeBlanc were stalwart
individuals, who could potentially cause substantial property damage during a physical
altercation.12
15
It is undisputed that Moore, who possessed a list of potential voters, granted listed voters
staggered entry, and denied access to anyone not listed. Although he temporarily denied Barbour
and Diamond admission because they were unlisted, they were eventually granted access and
permitted to vote under challenge. There is no evidence that anyone else was denied access.
20
iii. Voting Area
LeBlanc credibly testified that, immediately before the election, he observed the
following slogan posted on the dry erase board directly behind the voting kiosk, “never abandon
the owner or the company.” (U. Exhs. 7–8 (photos of slogan)). He added that, although the 25
Board agent directed the Company at the preelection conference to allow employees to only
enter through a single door for voting purposes, he observed employees entering through
multiple doors.13
Mr. Hall explained that the Board agent asked him to erase certain things from the dry 30
erase board before the election, and he complied. He admitted that the phrase, “never abandon
the owner or a contractor,” was posted. He explained, however, that the phrase, “finish your day
by communicating to the owner or contractor your plan,” was also posted directly underneath
this phrase. He averred that these slogans were posted in order dissuade employees from leaving
their assigned jobsites, without notifying anyone about their whereabouts, and had no 35
relationship to the campaign.

12 The undersigned notes that both Lungrin and LeBlanc are sizeable individuals.
13 He explained that he observed this scenario from the parking lot, while waiting for the election to conclude.
JD(ATL)–33–11
7
iv. Postelection Conduct
Donaldson stated that, after the election, Lungrin rejoiced at North Oaks and proclaimed
that, “we voted that [expletive] down, we told you all we didn’t want it.” Lungrin admitted his
celebration, and reiterated that, “[he] thought it was pretty cool that the guys . . . stood up and 5
made their voice heard that they didn’t want that garbage.” He contended that he would have
immediately resigned, if the Union won.
Hernandez testified that, on the Monday after the election, Lungrin announced that
somebody had taken pictures at the facility and supplied evidence to the Union, and jokingly 10
suggested that Mr. Hall shoot the offender “between the eyes.” He added that Mr. Hall
responded by saying that, if he identified the offender, he would have his “balls.” Lungrin
admitted the joke, but, denied Mr. Hall’s response. Mr. Hall similarly denied this threat.
I fully credit Donaldson’s testimony concerning Lungrin’s postelection celebration.15
I found his demeanor to be highly credible. His testimony was uncontradicted, and generally
corroborated by Lungrin.
Inasmuch as Hernandez testified that Mr. Hall threatened whoever aided the Union, and
both Mr. Hall and Lungrin denied such commentary, I must a credibility determination. For 20
several reasons, I fully credit Hernandez’s testimony. I found his demeanor to be highly
credible. He was cooperative on direct and cross examination, and appeared to be putting forth
his best effort to accurately describe his recollection. On the other hand, as noted, I found
Lungrin and Mr. Hall to be less than credible. I further find the threat at issue was consistent
with the many animus laden comments made by the Company during the campaign.25
D. Layoffs
1. Barbour’s Employment History
30
On November 11, 2009, the Company hired Barbour, a plumber, with 13 years of
experience, who attended the Union’s apprenticeship school. (GC Exhs. 13–14). Although he
was initially hired as a full-time employee with benefits, he was immediately reduced to
temporary status, following the Company’s discovery that his driver’s license was invalid.
(GC Exhs. 15–16).14 During his tenure, he was assigned to North Oaks.35
On January 18, Barbour was counseled for excessive absenteeism. (GC Exh. 17). His
counseling stated that, ‘“[i]f absences continue, termination will occur. . . . absences are the
unannounced or unapproved or surprise type.” (Id.)
40
Barbour testified that, during the campaign, he wore his Union T-shirt to work, signed a
Union authorization card, and parked his truck, which displayed Union stickers, in the
Company’s lot. He stated that, when he told Lungrin that he was a Union member, he was
rebuffed and called “dumb.” He was subpoenaed by the Union to testify at the R-case hearing,

14 He testified that Mr. Hall told him that his eligibility for benefits would be re-evaluated, once his license
was reinstated. See also (GC Exhs. 16, 19).
JD(ATL)–33–11
8
which was initially set to occur on January 21.15 (GC Exhs. 1, 18). He credibly testified that
LeBlanc served the subpoena upon him at North Oaks on January 20, in the presence of several
employees. He added that he notified both Lungrin and Mr. Hall concerning the subpoena on the
same date that it was received. On January 22, within 2 days of being subpoenaed, he was laid
off. His separation notice, which checked “lack of work,” provided:5
[D]ecrease in new jobs . . . . temporary position no longer needed.
(GC Exh. 11(c) (grammar as in original).
10
Donaldson testified that, in late January, he observed Lungrin installing a water fountain
at North Oaks. He stated that he had noticed that Barbour and Diamond were absent, and asked
him about their whereabouts. He recalled this exchange:
He said [they were laid off] because they were Union. . . . I asked him . . . how 15
come . . . Grimes wasn’t laid off. And he said, because . . . Grimes is done with
the Union. And, I just said, okay, then, if that’s what you think.
He stated that, at that time, the Company had completed only a small portion of the North Oaks
job, i.e., Barbour’s and Diamond’s assignment.20
During his testimony, Lungrin acknowledged telling Donaldson that Barbour and
Diamond had been laid off. He conspicuously failed to disavow that their layoffs were
connected to their Union activities.16 He admitted, however, knowing that Barbour was a
“Union hand,” but, denied knowledge of Diamond’s Union relationship.25
Mr. Hall discussed Barbour’s layoff, and testified that, when Barbour was first hired, he
told him that:
As long as he had a valid drivers’ license and he could perform as we had 30
discussed, he had a full time position.
He added that, when he found out that his drivers’ license was invalid, he gave him some time to
remedy this issue. He reported that, once Barbour started missing work, he “started looking for
another journeyman to replace him.” He indicated that the Company’s decreased workload also 35
factored his layoff. He also added that Barbour’s work was substandard. He did, however,
admit that he knew that Barbour was a Union member.
For several reasons, I fully credit Donaldson’s testimony that Lungrin stated that Barbour
and Diamond were laid off “because they were Union.” First, as stated, I found Donaldson to be 40
a highly credible witness, who was equally helpful on direct and cross, consistent, forthright, and
seemed to be committed to aiding the proceeding. Second, this key statement was not denied by
Lungrin. Third, this statement is consistent with the many union animus laden statements made
by Lungrin throughout the campaign. Finally, as will be discussed, this statement is consistent

15 The hearing was subsequently rescheduled, at the Company’s request.
16 Specifically, he solely denied that Grimes was laid off because of his Union activities. (Tr. 565).
JD(ATL)–33–11
9
with the several pretextual explanations that Company proffered in support of the layoffs.
2. Diamond’s Employment History
On July 13, 2009, the Company hired Diamond, another plumber, who attended the 5
Union’s apprenticeship school.17 (GC Exh. 20). On January 22, he was laid off. His separation
notice, which checked off “lack of work,” provided:
[D]ecrease in new jobs . . . . temporary position no longer needed.
10
(GC Exh. 11(d)). At all relevant times, he was assigned to North Oaks.
Mr. Hall testified that, when Diamond was hired, he had just taken the State licensing
examination, and was awaiting his certification. He stated that, once it was determined that he
failed the test, neglected to reschedule another exam, and demonstrated poor performance, the 15
Company released him. He admitted knowing that Diamond was affiliated with the Union.
3. Grimes’ Employment History
On December 7, 2009, the Company hired Grimes, a licensed plumber with 24 years of 20
experience.18 (GC Exh. 33). He was initially hired as a temporary employee, with the
understanding that his eligibility for full-time benefits would be re-evaluated within 90 days.
(GC Exh. 37). His application revealed that he attended the Union’s apprenticeship school, and
has been a Union member since 1997. (GC Exh. 34). On January 7, the Company increased his
wages from $18.50 to $20 per hour, on the basis of “consistent performance.” (GC Exh. 38). On 25
February 11, within a month of his raise, he was laid off. His separation notice provided:
No new work. Workload decreasing . . . . temporary position is no longer needed.
(GC Exh. 11(f)).30
Grimes testified that he was astounded by his layoff, inasmuch as North Oaks, his
assigned jobsite, was active and months from completion. He added that, while layoffs are
common in the construction field, such actions normally occur when a job nears completion.
35
Donaldson added that, following Grimes’ layoff, he asked Lungrin about the Company’s
rationale. He related that Lungrin responded, “you know why, because he’s Union.” He then
recalled this exchange:
I said . . . , I thought that you had lots of work. He said, we do; we have tons of it.40
Lungrin testified that he knew that Grimes was a “Union hand.” He acknowledged
commenting to Donaldson that the Company had a lot of work, although he asserted that this
comment was solely a joke. He denied stating that Grimes’ layoff was connected to his Union

17 He did not testify at the hearing.
18 He is licensed by the State Plumbing Board of Louisiana. (GC Exh. 32).
JD(ATL)–33–11
10
activities. He stated, however, that immediately following Grimes’ layoff, Mr. Hall told him that
Grimes was only temporarily laid off, and would be recalled within weeks.
Mr. Hall explained that, when Shannon Batiste, a plumber who had been with the
Company for several years, received his plumbing permit, it made Grimes, a licensed plumber, 5
expendable. He stated that, as a result, he was laid off. He acknowledged, however, that Batiste
never actually took the April plumbing examination, and ultimately resigned due to poor health a
couple of months later. He admitted that Grimes was a good worker, whom he would consider
rehiring. He conspicuously failed to explain, however, why he discharged Grimes a licensed
plumber and productive employee, on the basis of the mere possibility that Batiste would pass 10
the licensing examination. He agreed that he knew that Grimes was a Union member.
Inasmuch as Donaldson testified that Lungrin stated that Grimes was laid off because “he
was Union,” and Lungrin denied such commentary, I must make a credibility determination, in
order to resolve this key factual dispute. For multiple reasons, I credit Donaldson over Lungrin. 15
First, as noted, regarding demeanor, I found Donaldson to be very reliable. Lungrin, on the other
hand, was a difficult, argumentative and cagey witness, who changed several key portions of his
testimony, after being reminded about prior inconsistent statements in his sworn affidavit.
Second, Lungrin’s statement that Grimes was laid off because of his Union affiliation is
consistent with the many union animus laden statements made by him at the hearing and during 20
the campaign.
4. North Oaks
Barbour credibly testified that a new construction plumbing project involves three 25
distinct phases. He called the first phase, “rough in,” and explained that this phase involves the
installation of underground sewer and water lines. He labeled the second phase, “top out,” and
added that this phase involves placing water lines in the structure’s ceilings and walls. He
reported that this phase represents the lion’s share of a new construction plumbing project. He
identified the third phase as “trim out,” and noted that this phase involves the installation of 30
sinks, urinals, toilets, and other fixtures. He explained that, when he was laid off, North Oaks
job was in the preliminary portion of the “top out,” phase. He recollected that, at that time, the
majority of the “top out” work on the first and second floors remained unfinished. He indicated
that his layoff was, in his experience, unusual because it occurred, while most of the North Oaks
job remained uncompleted.35
Donaldson credibly testified that the North Oaks job ended in June, roughly 5 months
after the layoffs at issue herein. He indicated that the Company’s plumbing workforce at North
Oaks consistently remained at 6 to 7 employees, both before and after the layoffs.
40
Lungrin testified that, due to poor weather, the Company was able to get ahead on its
work at North Oaks, inasmuch as rainy conditions at other outdoor jobsites caused it to transfer
those workers to North Oaks. He reported that, when he resigned from the Company in June, it
had just completed the top out phase at North Oaks, and was set to begin the trim out phase.
45
JD(ATL)–33–11
11
5. Layoff Practices
Mr. Hall stated that, generally, the Company lays off its workers, in accordance with a
“last hired, first released” system. He added that this system does not always work, and that he
also considers the ratio of helpers, laborers, apprentices, and plumbers needed for upcoming 5
projects. He indicated that, in January, he determined that he was employing too many workers,
which prompted the instant layoffs. He stated that the Company was not being awarded bids at
that time.
6. Plumbing Personnel10
The following chart describes, in order of seniority, the Company’s plumbing workforce
from January 11, the petition filing date, through July 31:
Employee Title Hire Date Tenure Ending Date
Shannon Batiste Apprentice Pre-2007 April 25
Howard Hall Laborer March 5, 2007 N/A19
Al Harris Laborer March 26, 2007 N/A
Joe Lungrin Plumber January 14, 2008 N/A
Jervier Maxwell Plumber January 21, 2008 N/A
Lance McDaniel Helper May 4, 2009 N/A
Robbie Neal Plumber June 22, 2009 N/A
Gustavo Garcia Laborer June 29, 2009 March 14
Ricardo Martinez Laborer June 29, 2009 March 7
Doug Diamond Plumber July 13, 2009 January 22
Justin Magee Laborer July 27, 2009 January 24
Joshua Jackson Laborer August 3, 2009 August 29
Brady Barbour Plumber November 12, 2009 January 22
Ricky Pourceau Plumber November 16, 2009 October 7
Brian Hernandez Plumber December 2, 2009 June 6
Lawrence Vince Plumber November 16, 2009 May 23
Michael Grimes Plumber December 7, 2009 February 4
Miguel Sanford Laborer March 15 N/A
Jimmie Washington Laborer April 21 June 24
Steven Graves Apprentice April 26 July 8
Detric Jackson Plumber June 28 N/A
Roy Tillman Plumber July 19 July 29
Kermit Hickman Laborer July 22 N/A
Jevaughn Oubre Laborer July 19 N/A
15
(GC Exhs. 6, 85–88; R. Exh. 8).
In spite of Mr. Hall’s contention that the Company had more employees than work at the
time of the layoffs, the latter chart demonstrates that it nevertheless added several employees

19 “N/A” indicates that the employee remained on the payroll after July 31.
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12
shortly after conducting the instant layoffs.20
E. Lungrin’s Supervisory and Agency Status21
Lungrin’s supervisory status is a central issue, inasmuch as many of his statements have 5
been alleged to violate 8(a)(1) and demonstrate union animus. Lungrin, a licensed plumber with
21 years of experience, was employed by the Company from January 2008 through June 2010.
(GC Exhs. 54, 58, 59). During the campaign, he was assigned to North Oaks.
Ms. Hall called him the “eyes and ears of the employer at the job site.” She stated that he 10
monitored whether work was completed, in accordance with Mr. Hall’s directives. She provided
that, when Mr. Hall gave him a task, he exercised his discretion to assign workers discrete
components of this task. She related that he updated the Company on the job’s status, and
reported directly to Mr. Hall. She indicated that he was required to obtain Mr. Hall’s consent,
before sending a worker home for disciplinary or performance issues.15
Mr. Hall opined that, beyond he and Ms. Hall, the Company employed no other
supervisors.22 He stated that only he and Ms. Hall were empowered to hire, discipline,
discharge, reward, lay off, or promote. He indicated that Lungrin relayed material orders,
updated him on the job’s status, and completed daily log sheets. He reported that he periodically 20
visited jobsites to supervise employees, and estimated that he visited North Oaks twice per week.
He stated that Lungrin played no role in disciplinary actions, beyond reporting misconduct or
poor performance, which was everyone’s shared obligation. He insisted that he assigned work at
daily morning meetings. Although he conceded that he does not possess blueprints at the
facility, and generally does not observe where the prior day’s work ended, he denied that 25
Lungrin assigned work at North Oaks. On cross-examination, however, he acknowledged that
his affidavit contradictorily stated that Lungrin assigned work.23
Lungrin testified that Mr. Hall determined how many workers were assigned to North
Oaks. He stated that, while some plumbers worked independently, others were unable to read 30
blueprints and required his guidance. He admitted that he distributed assignments to employees,
who were unfamiliar with the jobsite. He stated that, if he had a problem with an employee, he
would advise the Halls.24 He added that, when other jobs were cancelled due to poor weather
conditions, Mr. Hall would contact him and ask whether North Oaks needed additional workers.
He reported that he would complete a daily log sheet. He claimed that he engaged in a “give and 35
take” with his colleagues, whereby they reviewed his work, and vice versa. He averred that Mr.
Hall visited North Oaks once or twice per week, and directed their work.

20 There is no evidence that the Company made recall offers to Barbour, Diamond, or Grimes, prior to hiring
additional workers.
21 In its answer, the Company denied Lungrin’s supervisory and agency status.
22 It is noteworthy, however, that, the Company contrarily asserted at the election that it employed several
other supervisors, when it contended that Neal, Hernandez, and Vince were all supervisors, and challenged
their ballots on this basis. (GC Exhs. 1(rr)-(ss)).
23 See (Tr. 709 (“I have told employees in the morning meetings that if they had problems at the project to get
with Lungrin.”)).
24 But, c.f., (GC Exhs. 49–50) (describing Lungrin disciplining Bethea for insubordination).
JD(ATL)–33–11
13
Barbour credibly testified that, when he was hired, Mr. Hall told him to report to North
Oaks, and Lungrin would tell him what to do. He added that Lungrin paired employees, and
issued their daily assignments. He stated that Lungrin prompted employees to take breaks,
monitored the length of their breaks, and reminded them when their workday ended. He stated
that, when he encountered a problem with another contractor, he consulted Lungrin, who 5
addressed the matter. He succinctly characterized Lungrin as his “boss.”
Grimes credibly testified that he was supervised by Lungrin at North Oaks. He added
that Mr. Hall identified Lungrin as his supervisor, when he started. He stated that North Oaks
employees received their daily assignments from Lungrin. He indicated that Mr. Hall seldom 10
visited the jobsite.
Donaldson credibly testified that Lungrin appeared to supervise the Company’s North
Oaks employees. He related that, if he had issues with plumbing work interfering with his
HVAC work, he consulted Lungrin. He added that Lungrin referred to North Oaks as, “his job,”15
and was the sole Company employee, who interacted with other contractors.
Hernandez credibly testified that Mr. Hall described Lungrin as his “superintendent.” He
stated that, at North Oaks, Lungrin assigned the plumbers their work.
20
For several reasons, I do not credit Mr. Hall’s claim that Lungrin did not assign work at
North Oaks, and that solely he and Ms. Hall are supervisory. First, as noted, I found his
demeanor to be less than credible. Second, it is implausible that Mr. Hall was able to supervise
the jobsite from afar, given that he only visited North Oaks biweekly, did not store blueprints at
the facility, and did not routinely physically review where the prior day’s work ended. It is 25
vastly more plausible that Lungrin, an on-site presence, primarily assigned work at North Oaks.
Lastly, Mr. Hall’s testimony on these issues was inconsistent with his sworn affidavit, and
election challenges of plumbers Neal, Hernandez, and Vince as supervisors.25
III. Analysis30
A. Lungrin’s Supervisory and Agency Status
1. Supervisory status
35
I find that Lungrin is a statutory supervisor. Section 2(11) defines a supervisor as:
Any individual having the authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust their grievances, or 40
effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.

25 The Company cannot reasonably contend that several plumbers were supervisory in an election, while
contrarily averring that the very same plumbers were not supervisory in the instant litigation.
JD(ATL)–33–11
14
The party alleging supervisory status must establish that: the disputed individual possesses at
least one of the supervisory authorities delineated above; and that independent judgment is used
in exercising such authority.26 Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006).
“Independent judgment” is defined as judgment that is, “free of the control of others . . . [and]
not . . . dictated or controlled by detailed instructions . . . [including] the verbal instructions of a 5
higher authority.” Id. at 693.
i. Assignments
Lungrin exercised independent judgment, when he assigned duties to North Oaks10
employees. The Board defines “assign” as:
[T]he act of designating an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or overtime period), or
giving significant overall duties, i.e., tasks, to an employee.15
Oakwood Healthcare, supra at 689.
As a threshold matter, Lungrin assigned work at North Oaks. Ms. Hall stated that, when
Mr. Hall gave him a task, he exercised his discretion to assign workers discrete components of 20
the task. Lungrin admitted that he distributed assignments to North Oaks workers, who were
unfamiliar with the job, or unable to read blueprints. Barbour, Grimes, Hernandez, and
Donaldson testified that he paired up employees, assigned their work, and directed them
throughout the workday. They referred to him as the “boss” and “superintendent,” and indicated
that he called North Oaks, “his job.” Given that it is undisputed that Mr. Hall visited the jobsite 25
on a biweekly basis, did not possess blueprints at the office, and generally did not observe where
the prior day’s work ended, I find that North Oaks could not have effectively functioned, without
Lungrin, an on-site presence, distributing assignments.27
Lungrin also exercised independent judgment, when assigning work. He exercised such 30
judgment by, inter alia: (1) reading blueprints, gauging the job’s status, and determining the next
phases of the North Oaks job to be completed (i.e. identifying the day’s agenda); (2) identifying
which tasks were suitable for the 4 different classifications assigned to North Oaks (i.e. dividing
work amongst plumbers, apprentices, laborers and helpers); (3) allocating tasks within constant
classifications (i.e. dividing plumbing work amongst multiple plumbers, dividing laborer work 35
amongst multiple laborers, etc.); and (4) when additional personnel became available, assessing
the job’s status, and apprising Mr. Hall whether such personnel could be temporarily utilized at
North Oaks.

26 Section 2(11) solely requires possession of a listed supervisory function, not its actual exercise. See
Barstow Community Hospital, 352 NLRB 1052, 1052–1053 (2008). The fact that most of an alleged
supervisor’s duties involve routine tasks “does not preclude the possibility that such regular assignments
require the exercise of independent judgment.” Loyalhanna Care Center, 352 NLRB 863, 864 fn. 4 (2008).
27 As noted, I did not credit Mr. Hall’s somewhat self serving testimony that Lungrin did not assign work, and
that all assignments were made remotely.
JD(ATL)–33–11
15
ii. Responsible Direction
Lungrin did not responsibly direct employees. This authority exists when:
[An employee decides] what job shall be undertaken next or who shall do it, . . . 5
provided the direction is both “responsible” . . . and carried out with independent
judgment.
Oakwood Healthcare, Inc., supra at 691. “[F]or direction to be ‘responsible,’ the person
performing the oversight must be accountable for the performance of the task . . . such that some 10
adverse consequence may befall the one providing the oversight if the tasks performed are not
performed properly.” Id. at 692.
Although Lungrin exercised independent judgment in assigning work, the record failed to
reveal evidence of “actual accountability.” Specifically, the record failed to show that he was 15
potentially subject to adverse consequences, if the job was delayed, or otherwise unsatisfactory.
I find, as a result, that it has not been shown that he responsibly directed employees. See Golden
Crest Healthcare Center, 348 NLRB 727, 731 (2006).
iii. Authority to Discipline20
Lungrin did not exercise disciplinary authority; he was only involved in a single
disciplinary incident, i.e. when Bethea was sent home for insubordination. (GC Exhs. 49–50).
In that case, however, he reported the incident to Mr. Hall, who independently determined the
appropriate punishment. I find, as a result, that Lungrin did not effectively recommend 25
discipline. See, e.g., Los Angeles Water & Power Employees’ Assn., 340 NLRB 1232, 1234
(2003) (individual’s report of misconduct does not constitute effective recommendation of
discipline, where management undertakes its own investigation and decides what, if any,
discipline to impose).
30
iv. Conclusion
I find that Lungrin was a 2(11) supervisor, solely on the basis of his ability to assign work
to employees, while exercising independent judgment. I do not find that he exercised any other
supervisory responsibilities. 35
2. Agency Status
I also find that Lungrin was an agent. Section 2(13) provides as follows:
40
In determining whether any person is acting as an “agent” of another person so as
to make such other person responsible for his acts, the question of whether the
specific acts performed were actually authorized or subsequently ratified shall not
be controlling.
45
The Acting General Counsel bears the burden of proving agency herein. The Board has held
that:
JD(ATL)–33–11
16
The . . . test for determining whether an employee is an agent of the employer is
whether, under all of the circumstances, employees would reasonably believe that
the employee in question was reflecting company policy and speaking and acting
for management.5
Albertson’s Inc., 344 NLRB 1172 (2005), citing Pan-Osten Co., 336 NLRB 305, 305–306
(2001). Employees, for example, who regularly communicate management’s directives to
coworkers, are considered agents regarding the distribution of such information. Id.
10
Lungrin was clearly an agent. He, amongst other things, supervised employees and
communicated directives regarding work assignments.
B. Independent 8(a)(1) Allegations
15
1. Plant Closure Threat28
On December 14, 2009, Lungrin unlawfully threatened Grimes that the Company would
close, if it unionized.29 An employer violates Section 8(a)(1), when it engages in conduct that
might reasonably tend to interfere with employees’ Section 7 rights. American Freightways Co., 20
124 NLRB 146 (1959). Such unlawful conduct includes plant closure threats, in retaliation for
engaging in union activity. Mid-South Drywall Co., Inc., 339 NLRB 480 (2003). I find,
therefore, that Lungrin’s threat was unlawful.
2. Interrogations3025
On February 11, Lungrin unlawfully interrogated employees at Hooters concerning their
Union activities. In Westwood Healthcare Center, 330 NLRB 935 (2000), the Board held that
the following factors determine whether an interrogation is unlawful:
30
(1) The background, i.e. is there a history of employer hostility and
discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be
seeking information on which to base taking action against individual
employees?35
(3) The identity of the questioner, i.e. how high was he in the company
hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to
the boss’s office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.40
Id. at 939. In applying these factors, however, the Board concluded that:

28 This allegation is listed under paras. 7(a) and 12 of the complaint.
29 Although Lungrin contended that this statement was solely opinion, there is no evidence that he voiced this
distinction, or that his opinion was rationally based upon concrete financial data.
30 This allegation is listed under paras. 7(b) and 12 of the complaint.
JD(ATL)–33–11
17
In the final analysis, our task is to determine whether under all the circumstances
the questioning at issue would reasonably tend to coerce the employee at whom it
is directed so that he or she would feel restrained from exercising rights protected
by Section 7 of the Act.5
Id. at page 940.
Lungrin, a supervisor, questioned Grimes and Hernandez about their Union activities at
Hooters. He asked Grimes whether he was going to the Union meeting, and Hernandez whether 10
he was affiliated with the Union. As will be discussed, these interrogations followed his
unlawful surveillance of the Union meeting, and occurred within weeks of Barbour’s,
Diamond’s, and Grimes’ unlawful layoffs. I also note that the questioning occurred at a Union
meeting, and conveyed to employees that the Company was closely monitoring their Union
activities. I find that, under these circumstances, such questioning was unlawful, and tended to 15
coerce the targeted employees in the exercise of their Section 7 rights.
3. Surveillance31
On February 11, Lungrin engaged in unlawful surveillance at Hooters. An employer 20
violates Section 8(a)(1), when it “surveils employees engaged in Section 7 activity by observing
them in a way that is ‘out of the ordinary’ and thereby coercive.” Aladdin Gaming LLC, 345
NLRB 585, 586 (2005). Indicia of coerciveness, include the “duration of the observation, the
employer’s distance from its employees while observing them, and whether the employer
engaged in other coercive behavior during its observation.” Id. The instant surveillance 25
occurred at a Union meeting, lasted for 30 minutes, took place within the close confines of a
restaurant, and was coupled with unlawful interrogations. Lungrin’s visit was out of the
ordinary, inasmuch as it appeared to have no purpose beyond observation of the Union meeting.
I also note that the Company failed to present any evidence that he regularly frequents Hooters,
after his workday ends.30
4. Moore’s Election Presence32
The Company’s retention of Moore during the election was lawful. The Board has held
that an employer violates the Act, when, during an election and without justification, it posts 35
armed guards at the plant gate, who restrict voter access and prevent unlawfully discharged
voters from voting subject to challenge. See General Trailer, 330 NLRB 1088 (2000).33
The Company’s decision to post Moore at the facility during the election was legitimate.
First, it possessed reasonable safety and property concerns. Immediately prior to the election, 40
Lungrin and LeBlanc engaged in a heated verbal exchange at the facility, which could have

31 This allegation is listed under paras. 7(c) and 12 of the complaint.
32 These allegations are listed under paras. 8 and 12 of the complaint.
33 See also Scotch & Sirloin Restaurant, 269 NLRB 436, 448 (1984) (unlawful to prevent discriminatees, who
intended to vote under challenge, from voting by telling them that, if they did not leave, employer would
call the police on them); Beverly California Corp., 326 NLRB 232, 261 (1998) (posting of guards outside
of union meeting, without legitimate justification, the day before the election was unlawful).
JD(ATL)–33–11
18
escalated into a physical confrontation. Given that this confrontation might have resumed at the
election, the Company proactively hired Moore, in order to promote its legitimate interests in
preventing workplace violence and protecting its property. Second, the Company previously
hired Moore, in order to deal with other potentially violent workplace situations, including its
discharges of disgruntled workers. Its hiring of Moore to police the election was solely a 5
continuation of this established practice. Lastly, there is no evidence that Moore actually
prevented anyone from voting subject to challenge. Although he delayed Barbour and Diamond
from voting, they were eventually granted entry and voted. Accordingly, I find that his presence
was lawful.
10
C. 8(a)(3) Allegations
The Company violated Section 8(a)(3), by laying off Barbour, Diamond and Grimes.
The framework for analyzing alleged 8(a)(3) violations is Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the 15
General Counsel must make a prima facie showing that the employee’s protected conduct
motivated the adverse action. The General Counsel must show, either by direct or circumstantial
evidence, that: the employee engaged in protected conduct; the employer knew or suspected that
he engaged in such conduct: the employer harbored animus against such conduct; and the
employer took the personnel action at issue because of such animus.20
Under the Wright Line framework, if the General Counsel makes a prima facie showing,
it meets its initial burden to persuade, by a preponderance of the evidence, that protected activity
was a motivating factor in the employer’s action. Once this is established, the burden of
persuasion shifts to the employer to show that it would have taken the same adverse action, even 25
absent the protected activity. NLRB v. Transportation Corp., 462 U.S. 393, 399, 403 (1983);
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per
curiam). To meet this burden, “an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.” Serrano Painting, 332 NLRB 1363, 30
1366 (2000). If the employer’s proffered defenses are found to be a pretext, i.e., the reasons
given for its actions are either false or not, in fact, relied on, the employer fails by definition to
show that it would have taken the same action for those reasons, and there is no need to perform
the second part of the Wright Line analysis. On the other hand, further analysis is required if the
defense is one of “dual motivation,” that is, the employer defends that, even if an invalid reason 35
might have played some part in the employer’s motivation, it would have taken the same action
against the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 212, 223 (D.C. Cir. 2005).
1. Grimes’ Layoff3440
i. Union Activity
Grimes engaged in Union activity. He was affiliated with the Union, participated in its
apprenticeship program, attended the February 11 Union meeting at Hooters, and signed a Union45

34 This allegation is listed under paras. 9, 10, and 13 of the complaint.
JD(ATL)–33–11
19
authorization card in Lungrin’s presence.
ii. Knowledge
The Company knew of Grimes’ activity. Lungrin observed him sign an authorization 5
card and attend the Hooters meeting. Lungrin interrogated him about his Union activity, and
testified that he knew that he was a “Union hand.” See State Plaza, Inc., 347 NLRB 755, 756–
757 (2006) (supervisor’s knowledge of union activities is imputed to the employer unless
credited testimony establishes the contrary); Dobbs International Services, 335 NLRB 972, 973
(2001); Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82, 82 (1983). Moreover, Mr. Hall 10
conceded that he knew that Grimes was a Union member.
iii. Animus and Causation
The Company harbored significant union animus, which prompted Grimes’ layoff. This 15
matter was proven via direct evidence, by Donaldson’s credible testimony that Lungrin said that
Grimes was laid off “because he was Union.” This direct evidence was corroborated by
substantial additional evidence of union animus, which included Lungrin’s: plant closure threat;
interrogations; surveillance; statements that he would quit, if the Company unionized; repeated
comments that the Company would always be nonunion; comparison of the Union to “garbage;”20
verbal assault of LeBlanc, while leafleting outside the facility; celebration following the Union’s
election loss; and remarkably open hostility concerning the Union at the hearing. Animus and
causation are further demonstrated by the close timing between Grimes’ layoff and his Union
activities; he was laid off within days of Lungrin interrogating him and observing him attend the
Hooters meeting. See State Plaza, Inc., supra at 756 (adverse action occurring shortly after an 25
employee has engaged in protected activity raises an inference of unlawful motive); La Gloria
Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71 Fed. Appx. 441 (5th Cir. 2003). Animus was
also demonstrated by Mr. Hall’s comment after the election that he would castrate, whoever
aided the Union. I also find that it is likely that the Company’s antinion animus was motivated
by its damaged past 8(f) relationship with the Union, which was highlighted by the Union filing 30
a lawsuit against the Company due to its ongoing failure to remit dues and benefits payments.
iv. Prima facie case under Wright Line
I find, therefore, that counsel for the Acting General Counsel has proven that: Grimes
engaged in Union activity; the Company was aware of such activity; and union animus triggered 35
his layoff. Accordingly, I find that he has met his initial burden of persuasion under Wright Line.
I will now consider the Company’s s asserted layoff reasons.
v. Pretextual discharge reasons
40
The Company’s explanation concerning Grimes’ layoff was pretextual. Mr. Hall
explained that two circumstances prompted Grimes’s layoff: (1) an overall slowing of the
Company’s workload; and (2) Batiste’s attainment of a journeyman plumbing permit rendering
Grimes, a licensed plumber, redundant.
45
JD(ATL)–33–11
20
Regarding the Company’s workload, I find that the slowing of its workload had no
connection to Grimes’ layoff. First, immediately following his layoff, Lungrin stated to
Donaldson that Grimes’ layoff was connected to his Union activity, and the Company still had a
substantial workload. Second, Grimes was laid off in February, even though North Oaks, his
assigned jobsite, was not completed until July. This scenario is inconsistent with a lack of work5
at North Oaks. Third, I find it implausible that Mr. Hall, who appears to be extremely thorough
in his business planning, would have granted Grimes a substantial pay raise and then laid him off
within a month, unless the layoff was taken to eliminate a Union supporter. Fourth, given that
reliable and competent licensed plumbers such as Grimes are likely difficult to retain, I find it
probable that the Company would have retained Grimes, absent some invidious motivation. 10
Lastly, I find that Mr. Hall’s claim that Grimes’ layoff was motivated by lack of work was
inconsistent with the Company’s hiring of 3 additional workers, within 2 months of his layoff.
Specifically, following his layoff, the Company hired Sanford in March, and Washington and
Graves in April. (GC Exhs. 6, 85–88; R. Exh. 8). I find, therefore, that Mr. Hall’s claim that
Grimes’ layoff was necessitated by a slowdown in the Company’s workload was pretextual.3515
Regarding Batiste’s pursuit of his plumbing license, Mr. Hall’s claim that this pursuit
resulted in Grimes’ layoff was also pretextual. It is implausible that Mr. Hall, a rational
businessman who likely strives to maximize certainty in his business affairs, would, absent an
invidious motivation, prematurely release Grimes, a licensed plumber and strong performer, on 20
the basis of Batiste solely signing up to take a test he might never pass.36
Based on my above analysis of the Company’s layoff rationale, as well as my
consideration of the many factors that led me to find express and inferred animus, and
knowledge, I conclude that its proffered reasons were mere pretexts and that antiunion animus 25
motivated its actions. Accordingly, no further analysis of its defenses is necessary for, as the
Board stated in Rood Trucking Co., 342 NLRB 895, 898 (2004):
A finding of pretext defeats any attempt by the Respondent to show that it would
have discharged the discriminatees absent their union activities. This is because 30
where “the evidence establishes that the reasons given for the Respondent’s
actions are pretextual—that is, either false or not in fact relied upon—the
Respondent fails by definition to show that it would have taken the same action
for those reasons, absent the protected conduct, and thus there is no need to
perform the second part of the Wright Line analysis.” Golden State Foods Corp., 35
340 NLRB 382, 385 (2003). . . .
2. Barbour’s Layoff37
i. Union activity40
Barbour engaged in Union activity. He was affiliated with the Union, participated in its

35 Or put another way, even assuming arguendo that the Company faced a short-term decrease in its workload
that warranted a layoff, I find that absent antiunion animus, it would have laid off a different worker.
36 Batiste’s passage was far from a certainty, given that both Lungrin and Diamond failed the same exam on
their first attempts. Ironically, following Grimes’ layoff, Batiste missed the exam and later resigned.
37 This allegation is listed under paragraphs 9, 10, and 13 of the complaint.
JD(ATL)–33–11
21
apprenticeship program, attended the Hooters meeting, signed an authorization card, wore his
Union T-shirt to work during the campaign, and his parked vehicle, which displayed Union
stickers, in the Company’s lot.
ii. Knowledge5
The Company was aware of his activity. Lungrin observed him attend the Hooters
meeting, and admitted that he knew that Barbour was a “Union hand.” See State Plaza, Inc.,
supra at 756–757 (supervisor’s knowledge of union activities is imputed to the employer unless
credited testimony establishes the contrary). Moreover, Mr. Hall admitted knowing that Barbour 10
was affiliated with the Union.
iii. Animus and Causation
The Company harbored Union animus, and laid off Barbour due to such animus. This 15
matter was proven directly, by Donaldson’s testimony that Lungrin said that Barbour was laid
off “because he was Union.” Animus and causation are also demonstrated by the close timing
between the January 11 filing of the petition and Barbour’s January 22 layoff. See State Plaza,
Inc., supra at 756. Animus is further demonstrated by the shifting reasons offered for Barbour’s
layoff. Specifically, even though his separation notice solely cited lack of work (GC Exh. 11(c)), 20
Mr. Hall stated at the hearing that he was also released for attendance issues,38 poor
workmanship,39 and drivers’ license issues. See Approved Electric Corp., 356 NLRB No. 45
(2010) (nondiscriminatory reasons for discharge offered at the hearing were found to be
pretextual, where different from those set forth in the discharge letters). Additional evidence of
animus was also discussed under my earlier analysis of Grimes’ layoff.25
iv. Prima facie case under Wright Line
I find that counsel for the Acting General Counsel has proven that: Barbour engaged in
Union activity; the Company was aware of such activity; and union animus triggered his layoff.
Accordingly, I find that he has met his initial burden of persuasion under Wright Line. I will 30
now consider the Company’s asserted layoff reasons.
v. Pretextual layoff rationale
The Company’s rationale regarding Barbour’s layoff was pretextual. Mr. Hall stated that 35
he was laid off due to: insufficient work; poor workmanship; poor attendance; and his suspended
drivers’ license. Concerning lack of work, the majority of the same reasons that rendered
Grimes’ layoff for lack of work pretextual also apply herein. Barbour’s lay off for lack of work
was also inconsistent with Mr. Hall’s claim that he normally follows a last hired, first released

38 Although, prior to his layoff, Barbour had some attendance issues, these issues solely resulted in the
issuance of a written counseling on January 18. (GC Exh. 17). I find that, if his attendance issues were as
serious as asserted, the Company would have issued him something more onerous than a written
counseling, and would have also cited this issue in the separation notice.
39 Although Mr. Hall generally complained that Barbour’s workmanship was inferior, he failed to cited any
concrete examples, or otherwise explain this contention. The Company similarly failed to offer
documentation of past performance issues, or corroborative testimony.
JD(ATL)–33–11
22
policy for layoffs. If that policy had been applied herein, the Company would have first laid off
plumbers Pourceau, Hernandez, and Vince, each of whom were less senior than Barbour.
Concerning poor performance, this allegation was pretextual, given that it was not cited on his
separation notice or otherwise documented, and was conspicuously raised for the first time at the
hearing. Concerning absenteeism, this allegation was similarly pretextual, inasmuch as: this 5
reason was not cited on his separation notice; and he solely received a written warning for
absenteeism, and was not subsequently absent. Lastly, concerning his suspended drivers’
license, this explanation is pretextual, given that the Company has retained other employees, who
were encumbered by suspended licenses. See, e.g., (GC Exhs. 10 (Debruyn, Machuca), 26
(Magee), 28 (Jackson)). I find, as a result, that its proffered reasons concerning Barbour’s layoff 10
were mere pretexts and that antiunion animus motivated its actions. Accordingly, no further
analysis of its defenses is necessary. Rood Trucking Co., supra at 898.
3. Diamond’s Layoff40
15
i. Union activity and Knowledge
Diamond was affiliated with the Union. He participated in its apprenticeship program,
and Mr. Hall acknowledged that he was aware of his affiliation.
20
ii. Animus and Causation
The Company harbored significant union animus, which prompted Diamond’s layoff.
This matter was proven via direct evidence, by Donaldson’s testimony that Lungrin said that
Diamond was laid off “because he was Union.” Animus and causation are also demonstrated by 25
the close timing between the filing of the January 11 petition and Diamond’s January 22 layoff.
Animus is further demonstrated by the shifting reasons provided for Diamond’s layoff.
Moreover, even though his separation notice solely cited lack of work (GC Exh. 11(d)), Mr. Hall
stated at the hearing that he was also released because he failed to pass the licensing exam and
schedule a follow-up exam, and for poor workmanship.41 See Approved Electric Corp., supra. 30
Additional evidence of animus was also discussed under my earlier analyses of Grimes’ and
Barbour’s layoffs.
iii. Prima facie case under Wright Line
I find that the Acting General Counsel has proven that: Diamond engaged in Union35
activity; the Company was aware of such activity; and union animus triggered his layoff.
Accordingly, I find that he has met his initial burden of persuasion under Wright Line. I will
now consider the Company’s asserted layoff reasons.
iv. Pretextual layoff rationale40
The Company’s explanation concerning Diamond’s layoff was pretextual. Mr. Hall

40 This allegation is listed under paras. 9, 10, and 13 of the complaint.
41 Although Mr. Hall generally complained that Diamond’s workmanship was inferior, he failed to cited any
concrete examples of performance issues, or otherwise explain his position. The Company similarly failed
to offer documentation of past performance issues, or corroborative testimony.
JD(ATL)–33–11
23
stated that Diamond was laid off due to: insufficient work; poor workmanship; and his failure to
pass the plumbing licensure exam. Concerning lack of work, the majority of the same reasons
that rendered Grimes’ layoff for lack of work pretextual also apply herein. Diamond’s lay off for
lack of work was also inconsistent with Mr. Hall’s contention that he normally follows a last
hired, first released policy for layoffs. If that policy had been applied, the Company would have 5
first laid off plumbers Pourceau, Hernandez, and Vince.42 Concerning poor workmanship,
Diamond’s layoff on this basis was pretextual, inasmuch as poor workmanship was never cited
on his separation notice, never previously documented, and solely raised for the first time at the
hearing. Concerning the plumbing licensure exam, Diamond’s layoff on this basis was
pretextual, given that the Company has retained others, who have failed this exam.43 I, 10
therefore, conclude that its proffered reasons were mere pretexts and that antiunion animus
motivated the Company’s actions. See Rood Trucking Co., supra at 898.
D. 8(a)(4) Allegations 44
15
An employer violates Section 8(a)(4), when it fires an employee for filing charges, or for
testifying, or for being subpoenaed to testify, at a Board proceeding. See 29 U.S.C. 158; Grand
Rapids Die Casting Corp., 279 NLRB 662, 664 (1986); First National Bank & Trust Co., 209
NLRB 95, 95 (1974); Southern Foods, 289 NLRB 152 (1998); Walt Disney World Co., 216
NLRB 836, 837–838 (1975). Such violations are analyzed under the Wright Line framework, 20
which requires the General Counsel to first make a prima facie showing that the employee
engaged in protected activity, the employer was aware of such activity, and the activity was a
motivating factor in the employer’s decision. See Syracuse Scenery & Stage Lighting Co., 342
NLRB 672, 673 (2004). Upon making such a showing, the burden then shifts to the employer to
demonstrate that it would have taken the same action, even in the absence of the protected 25
conduct. Wright Line, supra at 1089. If the evidence establishes that the reasons given by the
employer are pretextual, in that they are either false or were not relied upon by the employer in
making the termination decision, then it has failed to show that it would have taken the same
action, absent the protected conduct. Golden State Foods Corp., 340 NLRB 382, 385 (2003).
30
1. Barbour’s layoff
Barbour’s layoff violated Section 8(a)(4). The Acting General Counsel established a
prima facie case. On January 20, at North Oaks, LeBlanc subpoenaed Barbour to testify at the
r-case hearing. The subpoena was tendered in the presence of several employees, and Barbour 35
informed both Lungrin and Mr. Hall about it on the same date that it was received. I glean
animus and causation from the very close timing between Barbour’s subpoena and his release,
i.e., he was released within 2 days of being served. I also find it likely that the Company
construed Barbour’s receipt of a Union subpoena to mean that he was a Union supporter, whom
it needed to remove in order to suppress the campaign. Lastly, as noted, the Company’s 40
rationale for laying off Barbour was pretextual.

42 The Company could have also arguably laid off laborers Magee and Jackson, who were also less senior,
before it laid off Diamond.
43 Lungrin failed the licensing exam, and Batiste failed to take a scheduled plumbing examination, each
without suffering adverse consequences. It is also undisputed that the Company routinely hires unlicensed
plumbers.
44 These allegations are listed under paras. 9, 11, and 14 of the complaint.
JD(ATL)–33–11
24
2. Grimes’ layoff
Grimes’ layoff did not violate Section 8(a)(4). In furtherance of their position on this
issue, the Acting General Counsel and Union contended that the Company only initially intended 5
to lay off Grimes for a 2-week period, and then converted his temporary layoff into a permanent
layoff, once he was listed within an unfair labor practice charge. (GC Exhs. 1(g)-(h), 11(f)). In
support of their argument, they cite: Lungrin’s testimony that Mr. Hall initially stated that
Grimes’ layoff was temporary; and Grimes’ testimony that, on February 7, Mr. Hall solely told
him that he was not “penciled in” for the next workweek.10
For several reasons, I find that the Company’s actions regarding Grimes did not violate
Section 8(a)(4). Grimes’ layoff, in spite of Lungrin’s comment that it was initially temporary
was, at all times, a permanent action designed to eliminate a Union adherent. The Company
permanently laid off Grimes on February 7, when he was told that “he was not penciled in to 15
work that following week.” Although Mr. Hall inelegantly communicated the permanent nature
of his layoff on February 7 when he told him he was not “penciled in,” the February 12
separation notice solely memorialized his earlier, permanent, layoff. The Company had, as a
result, permanently laid off Grimes, when the February 10 charge was filed, and this filing, thus,
did not cause the layoff.4520
IV. The Representation Case
A. Objections
25
On February 25, the Union filed 17 objections to the Company’s conduct during the
critical period preceding the election, i.e., from January 11 to February 19.46 (GC Exh. 1(bb)).
Many of these objections duplicate the complaint allegations, which I have already analyzed and
found unlawful. At the hearing, the Union also withdrew several objections.47 The parties
presented argument concerning the objections in their posthearing briefs.30
1. Objection 2
Objection 2 alleged that, during the critical period, the Company, through Lungrin,
threatened employees that it would close, if they unionized. Given that I previously found this 35
threat to be unlawful, this objection is valid.
2. Objections 3, 4, and 7
Objections 3, 4, and 7 alleged that, during the critical period, the Company unlawfully 40
laid off Barbour, Diamond and Grimes. Given that I found that these layoffs were unlawful,

45 I also note that one would be hard pressed to explain why the Company would have operated in a tentative,
2-step manner regarding Grimes (i.e. by first temporarily laying him off, and then permanently laying him
off days later, once he was cited by the charge), when it acted so decisively regarding the removal of the
other Union adherents, as well as its handling of the campaign.
46 See Ideal Electric Mfg. Co., 134 NLRB 1275 (1961).
47 Specifically, the Union withdrew objections 5, 8, 9, and 17.
JD(ATL)–33–11
25
these objections are sustained.
3. Objection 6
Objection 6 alleged that, during the critical period, the Company, by Lungrin, engaged in 5
surveillance of a Union meeting, and interrogated employees concerning their Union activities.
The Union asserted that this objection was based upon Lungrin’s conduct at Hooters on
February 11, which I have found to be unlawful. Accordingly, this objection is legitimate.
4. Objection 1010
Objection 10 alleged that, at the pre-election conference, the Company, through counsel,
“destroyed the laboratory conditions of the election,” when he, “wrote on the . . . official
Excelsior List which was left in the presence and view of voters during the election . . . over the
objection of both the Union and the Board Agent.” LeBlanc testified that counsel wrote on the 15
Excelsior List at the preelection conference. LeBlanc, who did not observe the writing, added
that counsel stated that he was memorializing his challenges on the list. The list itself was not
submitted into evidence, there was no additional testimony regarding what was written, and there
is no evidence that any voters observed the writing. Under these circumstances, I find that this
was a de minimis action, which did not affect the election’s outcome. See Bon Appétit20
Management Co., 334 NLRB 1042 (2001). I find, therefore, that this objection lacks merit.
5. Objections 11, 12, and 13
Objection 11 alleged that the Company, through Moore, “destroyed the laboratory 25
conditions of the election,” when he temporarily prevented Barbour and Diamond from voting.
Objections 12 and 13 provided that the Company, “destroyed the laboratory conditions of the
election,” when Moore restricted access to the facility. The Company had a lawful,
nondiscriminatory rationale for hiring Moore, and Barbour and Diamond ultimately voted
subject to challenge. There is no evidence that Moore impeded any other voters, or that Moore 30
maintained a list of who voted, or that voters perceived such action. See Days Inn Management
Co., 299 NLRB 735 (1992). I find, as a result, that these objections are invalid.
6. Objection 14
35
Objection 14 alleged that the Company, “destroyed the laboratory conditions of the
election,” by:
[L]eaving the front door of the building unlocked during the election . . . and
facilitated, Howard Hall, Luke Hall’s brother, . . . [entering] the front door 40
repeatedly during the election.
Although there was limited testimony that the front door was unlocked, it was unclear whether
any voters observed anyone enter the facility through this door. I find, as a result, that this
matter was de minimis, and did not affect the election’s outcome. See Bon Appétit Management 45
Co., supra. Accordingly, this objection lacks merit.
JD(ATL)–33–11
26
7. Objection 15
Objection 15 alleged that the Company, “destroyed the laboratory conditions of the
election,” by, “challenging all individuals who the Company believed were supporters of the
Union.” The Union failed to present any evidence, beyond its own conjecture, that the 5
Company’s challenges were exclusively aimed at Union supporters. I find, as a result, that this
objection is unfounded.
8. Objection 16
10
Objection 16 alleged that the Company “destroyed the laboratory conditions of the
election,” by, posting a sign that read, “never abandon the owner or Company,” in the election
area. I find that Mr. Hall satisfactorily explained the context behind this posting, and that this
matter was insufficient to affect the election’s outcome. Thus, I find that this objection is
invalid.15
9. Objection 1
Objection 1, a catchall objection, alleges that the Company “interfered with, restrained,
and coerced its employees” in their ability to exercise free choice in the election. Given that I 20
have already sustained several objections, this objection, although duplicative, is legitimate.
B. Challenged Ballots
The Tally of Ballots revealed: 1 vote for the Union; 6 votes against; and 7 determinative 25
challenges. (GC Exh. 1(rr)). The determinative challenges are described below:
Employee Challenging Party Reason
Barbour Board Not on Excelsior List
Diamond Board Not on Excelsior List
Grimes Company No longer employed
Lungrin Union Alleged supervisor
Neal Company Alleged supervisor
Hernandez Company Alleged supervisor
Vince Company Alleged supervisor
(GC Exh. 1(ss)).
30
Barbour’s, Diamond’s, and Grimes’ challenges were invalid, inasmuch as their layoffs
were unlawful. Thus, their ballots must be counted. Lungrin’s challenge was, however, valid,
given his supervisory status. The Company’s challenges of Neal, Hernandez, and Vince as
supervisors were invalid, inasmuch as it wholly failed to present any evidence of their
supervisory status. Mr. Hall even contradictorily stated that only he and Ms. Hall are the 35
Company’s sole supervisors. Their ballots, therefore, must be counted.
JD(ATL)–33–11
27
C. Conclusion
Concerning the challenges, the ballots cast by Barbour, Diamond, Grimes, Neal,
Hernandez and Vince should be counted, while the ballot cast by Lungrin should not be counted.
The 6 uncounted ballots are sufficient in number to affect the outcome of the election, which was 5
decided by a 5-vote margin.
Concerning the objections, I find that objections 1, 2, 3, 4, 6, and 7 are valid, and that the
conduct underlying these objections, which also violated Sections 8(a)(1), (3), and (4), prevented
employees from exercising free choice during the February 19 election. Accordingly, in the 10
event that the Union does not win the election after the 6 challenged ballots are counted,
I recommend that the election be invalidated, and that employees be permitted to vote in a
second untainted election. See General Shoe Corp., 77 NLRB 124 (1948); IRIS U.S.A., Inc., 336
NLRB 1013 (2001); Diamond Walnut Growers, Inc., 326 NLRB 28 (1988).
15
Conclusions of Law
1. The Company is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
20
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Company violated Section 8(a)(1) of the Act by
a. Threatening employees that the Company would close, if they engaged in 25
Union or other protected concerted activities;
b. Interrogating employees concerning their Union or other protected
concerted activities; and
30
c. Engaging in surveillance of employees’ Union or other protected
concerted activities.
4. The Company violated Section 8(a)(1) and (3) of the Act by laying off and/or
discharging Barbour, Diamond, and Grimes because they engaged in Union or other protected 35
concerted activities.
5. The Company violated Section 8(a)(1) and (4) of the Act by laying off and/or
discharging Barbour because he was subpoenaed to testify in a representation case hearing
conducted by the Board. 40
6. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The Company has not otherwise violated the Act.45
8. By the foregoing violations of the Act, which occurred during the critical period
JD(ATL)–33–11
28
before the election, and by the conduct cited by the Union in objections 1, 2, 3, 4, 6, and 7, the
Company has prevented the holding of a fair election, and such conduct warrants setting aside
the election conducted on February 19, 2010, in Case 15–RC–8819.48
Remedy5
Having found that the Company has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action designed to effectuate
the policies of the Act.
10
The Company, having unlawfully laid off and/or discharged its employees, Barbour,
Diamond, and Grimes, must offer them reinstatement and make them whole for any loss of
earnings and other benefits. Backpay shall be computed on a quarterly basis from the date of
their layoffs and/or discharges to the date of their proper offers of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as 15
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Company shall
expunge from its records any references to their unlawful layoffs and/or discharges, give them
written notice of such expunction, and inform them that its unlawful conduct will not be used
against them as a basis for any future personnel related actions.20
The Company shall distribute appropriate remedial notices electronically via email,
intranet, internet, or other appropriate electronic means to unit employees at the facility, in
addition to the traditional physical posting of paper notices. See J Picini Flooring, 356 NLRB
No. 9 (2010).25
In addition to the traditional remedies for the 8(a)(1), (3), and (4) violations found herein,
the Company shall permit a Board agent to read the notice marked “Appendix” to unit
employees at its facility, during work time, in the presence of Mr. and Ms. Hall, its president and
vice president. A notice reading will foster the environment required for a fair and final second 30
election result, assuming such an election is warranted. A notice reading will also counteract the
coercive impact of the instant unfair labor practices, which were substantial and pervasive. See
McAllister Towing & Transportation Co., 341 NLRB 394, 400 (2004) (“[T]he public reading of
the notice is an ‘effective but moderate way to let in a warming wind of information and . . .
reassurance. [citations omitted].”‘).35
The Union’s request for a Gissel bargaining order is, however, denied. First and
foremost, this special remedy was not pled in the complaint, litigated at the hearing, or requested
by the Acting General Counsel. Under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Board will issue a remedial bargaining order, absent an election, under two circumstances. 40
Category I cases are “exceptional” cases, marked by “outrageous and “pervasive” unfair labor
practices, which cannot be corrected by traditional remedies and prevent the holding of a fair
election. Id. at 613–614. In such cases, a bargaining order is appropriate, “without need of
inquiry into [the union’s] majority status on the basis of cards or otherwise.” Id. Category II

48 As noted, a rerun election is only warranted, if the counting of the challenges does not alter the election
results.
JD(ATL)–33–11
29
cases are less severe cases, which still have the tendency to undermine majority support, and
impede the election process. Id. at 614. In these cases, a bargaining order is appropriate, once
there is a showing that: the union previously had majority support; and in light of the unfair labor
practices, the possibility of erasing the effects of the unfair labor practices and ensuring a fair
election through traditional remedies, though present, is slight. Id. at 614–615. In such cases, 5
employee sentiment, once expressed through cards, is, on balance, better protected by a
bargaining order. Id.
The instant case is not a category I case. First, in spite of the Company’s commission of
several unfair labor practices, the Union might nevertheless win the election, once challenged 10
ballots are counted. Second, the Board’s traditional remedies, which include a notice reading,
should suffice to assure a fair second election, if needed. This case is also not a category II case.
The record failed to reveal any evidence (e.g. authorization cards or other documentary
evidence), which demonstrated that the Union enjoyed majority support, before the commission
of the instant unfair labor practices.15
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended49
ORDER20
The Respondent, Allservice Plumbing and Maintenance, Inc., Baton Rouge, Louisiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from25
a. Threatening employees that the Company will close, if they engage in
Union or other protected concerted activities;
b. Interrogating employees concerning their Union activities or other 30
protected activities;
c. Engaging in surveillance of employees’ Union or other protected
activities;
35
d. Laying off and/or discharging employees because they engaged in Union
or other protected concerted activities;
e. Laying off and/or discharging employees because they have been
subpoenaed to testify in representation case hearings conducted by the Board. 40
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.

49 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order 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.
JD(ATL)–33–11
30
2. Take the following affirmative action necessary to effectuate the policies of the
Act
a. Within 14 days from the date of the Board’s Order, offer Barbour, 5
Diamond and Grimes their former jobs or, if such jobs no longer exist, offer them substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
b. Make Barbour, Diamond and Grimes whole for any loss of earnings and 10
benefits suffered as a result of the discrimination against them, in the manner set forth in the
remedy section of this Decision.
c. Within 14 days from the date of the Board’s Order, remove from its files
any reference to their unlawful layoffs and/or discharges, and within 3 days thereafter notify 15
them in writing that this has been done and that their layoffs and/or discharges will not be used
against them in any way.
d. 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 designated by 20
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, necessary to analyze the backpay amounts due under the terms of this Order.
e. Within 14 days after service by the Region, physically post at its Baton 25
Rouge, Louisiana facility, and electronically send and post via email, intranet, internet, or other
electronic means its unit employees who were employed by the Company at its Baton Rouge,
Louisiana facility at any time since December 14, 2009, copies of the attached Notice marked
“Appendix.”50 Copies of the Notice, on forms provided by the Regional Director for Region 15,
after being signed by the Company’s authorized representative, shall be physically posted by the 30
Company and maintained for 60 consecutive days in conspicuous places including all places
where Notices to employees are customarily posted. Reasonable steps shall be taken by the
Company to ensure that the Notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Company has gone out of
business or closed the facility involved in these proceedings, the Company shall duplicate and 35
mail, at its own expense, a copy of the Notice to all current employees and former employees
employed by the Company at any time since December 14, 2009.
f. Within 14 days after service by the Region, hold a meeting or meetings at
the facility, during working hours, which will be scheduled to ensure the widest possible 40
attendance of unit employees, at which time the attached notice marked “Appendix” is to be read
to its unit employees by a Board agent, in the presence of its current president and vice president.

50 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.”
JD(ATL)–33–11
31
g. 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.
IT IS FURTHER ORDERED that the Regional Director for Region 15 shall, in the 5
event that the inclusion and counting of the 6 challenged ballots does not result in the Union
winning the representation election conducted in Case 15–RC–8819, set aside that election
result, and hold a new election at a date and time to be determined by the Regional Director.
Dated Washington, D.C., December 1, 2011.10
_________________________________15
Robert A. Ringler
Administrative Law Judge
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT threaten you that the Company will close because you support the United
Association of Journeymen and Apprentices of the Plumbing Industry of the United States and
Canada, Local 198 (the Union) or any other union.
WE WILL NOT interrogate you about your Union activities.
WE WILL NOT engage in surveillance of your Union activities.
WE WILL NOT layoff, discharge, or otherwise discriminate against you for supporting the
Union or any other union.
WE WILL NOT layoff, discharge, or otherwise discriminate against you because you have been
subpoenaed to testify in a National Labor Relations Board proceeding.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Brady Barbour, Doug Diamond,
and Michael Grimes full reinstatement to their former jobs or, if their jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Brady Barbour, Doug Diamond, and Michael Grimes whole for any loss of
earnings and other benefits resulting from their layoffs and/or discharges, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful layoffs and/or discharges of Brady Barbour, Doug Diamond, and Michael Grimes,
and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that
their layoffs and/or discharges will not be used against them in any way.
WE WILL hold a meeting or meetings during working hours and have this notice read to you by
an agent of the National Labor Relations Board, in the presence of the Company’s current
president and vice-president.
ALLSERVICE PLUMBING
AND MAINTENANCE, INC.
(Employer)
Dated: ________________ By: ________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3413
(504) 589-6361, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (504) 589-6389.