Bates Paving & Sealing, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 20, 2015

28-CA-142681 (N.L.R.B. Jul. 20, 2015)

JD(SF)–28–15
Tucson, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BATES PAVING & SEALING, INC.
and Case 28–CA–142681
JUAN GAXIOLA, an Individual
Sara Demirok, Esq., Cristobal Muñoz, Esq.,
Leticia Peña, Esq., for the General Counsel.
Eric Hawkins, Esq., for the Respondent.
Shayna Kessler, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case was tried in Tucson,
Arizona, on April 21–22, 2015. Juan Gaxiola (Charging Party or Gaxiola) filed the above-
captioned charge on December 22, 2014.1 The General Counsel issued the complaint on
January 30, 2015. At the hearing, I granted the General Counsel’s request to amend the
complaint. Bates Paving & Sealing, Inc. (Respondent) filed a timely answer denying all material
allegations and setting forth affirmative defenses.
The complaint and amended complaint alleges that Respondent violated Section 8(a)(1)
of the Act when (1) about September 22, it threatened employees with discharge because they
complained about Respondent’s criticism of their work performance; (2) about September 22, it
discharged Gaxiola; (3) about October 10, it discharged employee Rafael Gastelum (Gastelum);
and (4) about September 22, it discharged employee Juan Marana (Marana).2

1 All dates are 2014 unless otherwise indicated.
2 At the hearing, the parties agreed to settle alleged overly-broad and discriminatory rules in its
employee policy manual. I approved the settlement agreement, and the General Counsel withdrew
complaint pars. 4(a) through 4(h). I then remanded the settlement agreement to the Regional Director to
oversee compliance (Tr. 102).
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On the entire record,3 including my observation of the demeanor of the witnesses,4 and
after considering the briefs filed by the General Counsel and Respondent,5 I make the following
FINDINGS OF FACT5
I. JURISDICTION
Respondent, a corporation, provides asphalt paving and maintenance services at its office
and place of business in Tucson, Arizona, where it annually purchased and received at its facility 10
goods valued in excess of $50,000 directly from points outside the State of Arizona.6
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.

3 The transcripts in this case are generally accurate, but the General Counsel in its brief moves to
correct the transcript (Tr.) 14, lines (LL.) 2, 4, and 6: the speaker is Hawkins, not Pena; Tr. 35, LL. 14–
15: the question, “Well, why don’t we start from the very beginning of this meeting through the end of the
meeting?”, is followed by the answer beginning with “Well, I don’t know”; Tr. 170, L. 18: “screen clips”
should be “sprinklers”; Tr. 174, LL. 11–22: “binchays” should be “pinche”; Tr. 181, LL. 20, 23: “jug”
should be “job.” Respondent did not file an opposition, and I grant the General Counsel’s request to
correct the transcript. In addition, I make the following corrections to the transcript: Tr. 76, L. 18: “Andi”
should be “And I”; Tr. 173, LL. 14, 19, 21, 25: the speaker is Mr. Muñoz, not Mr. Hawkins; Tr. 197, L. 5:
“took” should be “look”; Tr. 197, L. 21: “too” should be “took”; Tr. 202, L. 21: the speaker is Hawkins,
not Judge Tracy; Tr. 311, L. 1; Tr. 313, L. 19; and Tr. 334, L. 25: spelling should be “Rafael.”
4 In making my findings regarding the credible evidence, including the credibility of witnesses, I
considered the testimonial demeanor of such witnesses, the content of the testimony and the inherent
probabilities based on the record as a whole. In certain instances, I may have credited some but not all, of
what the witnesses said. “Nothing is more common in all kinds of judicial decisions than to believe some
and not all” of the testimony of a witness. Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474
(951). See also J. Shaw Associates, LLC, 349 NLRB 939, 939–940 (2007). This is particularly the case
where the credited portions of the witness’ testimony are “consistent with the testimony of credited
witnesses or with documentary evidence,” constitute an admission against interest, or are relied upon by
the party against which a particular issue is being resolved. Upper Great Lakes Pilots, 311 NLRB 131,
fn. 2 (1993). In addition, I have carefully considered the testimony in contradiction to my factual
findings, but I have discredited such testimony, either as having been in conflict with credited
documentary or testimonial evidence, or because it was in and of itself incredible and untrustworthy.
5 Other abbreviations used in this decision are as follows: “GC Exh.” for General Counsel’s exhibit;
“R. Exh.” for Respondent’s exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br.” for the
Respondent’s brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited, but rather are based on my review and consideration of the entire record.
6 Although initially denying jurisdiction, Respondent at the hearing stipulated to jurisdiction (Tr.
386).
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II. STATEMENT OF FACTS
A. Background and Respondent’s Operations
Respondent operates an asphalt paving and maintenance business. Specifically, 5
Respondent paves roads, parking lots, and new construction; maintains parking lots; seal coats
asphalt; fills cracks; and places stripes and traffic markings on asphalt. Respondent admits, and
I find, that the following individuals are supervisors within the meaning of Section 2(11) of the
Act and agents within the meaning of Section 2(13) of the Act: Robert Bates (Bates),
Respondent’s president and owner, and Robert Padilla (Padilla), Respondent’s paving 10
supervisor/manager (GC Exh. 1(c), 1(e)). Padilla became a supervisor for Respondent in
approximately April 2014.
Respondent employs 24 to 25 employees. Each paving crew consists of truck drivers,
paver operators, a scrieve man, two to three roller men including a finish roller man,7 and at least 15
two laborers who are also known as rakers and shovelers. Among these paving crew employees
included Gaxiola, Marana, and Gastelum. Gaxiola worked for Respondent as a raker (also
known as a laborer) and roller operator during various times in the past 10 years including his
latest stint from approximately July 2010 until his termination on Monday, September 22.
Marana began working for Respondent as a driver, raker and roller operator approximately 3 to 4 20
years prior to the hearing. Gastelum worked for Respondent various times in his career as a
raker and truck driver, and most recently from approximately April 2014 until his termination on
Friday, October 10.
When Respondent paves a road or a parking lot, the employees first gather in the yard at 25
Respondent’s facility. Padilla, as supervisor, assigns the employees their tasks for the jobs.
Respondent also assigns employees vehicles and trailers. Then the necessary equipment is
moved to the jobsite. Thereafter, Respondent (for jobs less than a day) or a subcontractor sets up
traffic barricades to secure the jobsite. After the equipment has been unloaded and warmed, the
employees begin paving the jobsite. After the surface has been graded, compacted, graded, and 30
compacted again, stakes are placed in the ground for fine tuning, upgrading and compaction.
Usually the following day, paving occurs. To pave a road or parking lot, a paver followed by a
roller goes over the asphalt, which achieves compaction. The paving crew waits for the asphalt
to cool before conducting a finish roll with the roller which can remove roller marks (Tr. 129).
35
With regard to disciplinary actions, Padilla testified that as a common practice he gives two to
three verbal warnings, followed by a written warning (Tr. 139). After two to three written
warnings, Padilla has authority to fire employees (Tr. 105). Padilla also has authority to fire
employees at any time depending on the severity of the infraction. Padilla admitted that he does
not always give written warnings or terminations to employees when they damage property but 40

7 A finish roller man irons out the asphalt to provide a smooth finish to the surface and to remove any
roller marks. This task must wait until after the asphalt temperature cools down to the appropriate
temperature (Tr. 53–54).
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has instead given only verbal warnings (Tr. 106–107).8 Bates testified that it is cause for
termination when an employee leaves a jobsite without permission (Tr. 64).
B. The University of Arizona Tech Park Project
5
Respondent began paving the University of Arizona Tech Park project (also referred to as
“IBM,” “U of A Tech Park,” and “Rita Ranch”) (Tech Park) on Friday, September 19. Per the
contract it was awarded, Respondent had been tasked to pulverize and repave the parking lot.
For the Tech Park project, the paving crew consisted of seven to eight employees and Padilla, as
supervisor.10
Prior to arriving at Tech Park, Padilla assigned the employees their duties for the project
and set the rolling pattern (Tr. 55). When the paving crew arrived at Tech Park in the early hours
of September 19, several employees noticed wetness on the ground in the circular drive or cul-
de-sac which they needed to pave (Tr. 24, 157–158, 218, 244, 269–272). To correct this 15
wetness, the wet surface needed to be dug out by as much as 18 inches, the soil replaced, and
then the area paved (Tr. 128). Padilla told the employees to pave the ground rather than dig out
all of the wet areas (Tr. 171, 221, 246, 273). The paving crew began working at the circular
drive (GC Exh. 2; Tr. 111). Throughout the day, the paving crew complained to Padilla about
the paving job and how it looked flawed but the paving crew was told by Padilla to keep paving 20
(Tr. 176). Padilla remained at the jobsite from approximately 5:30 to 9:30 a.m., and then
returned at approximately 1 p.m. (Tr. 128). While supervising, Padilla noticed roller marks and
told the employees to fix the roller marks (Tr. 129). At some point during the day, Padilla
assigned Gaxiola the duties as the finish roller. Before Padilla left again in the afternoon, he told
Gaxiola he would return to help him finish rolling (Tr. 112, 130). Marana actually helped 25
Gaxiola finish the work that day (Tr. 177, 185). Gaxiola also told Padilla that he could not work
the following day due to a death in the family (Tr. 132). Padilla then returned to Respondent’s
facility. At some point, Gaxiola finished his roller work, and the traffic cones were set up before
he left the jobsite at around 4:30 p.m. (Tr. 177, 186, 224).9
30
At the end of the workday, Padilla saw Gaxiola from a distance before he expected him
to leave the jobsite. Padilla called Gaxiola and asked him if he finished work at the jobsite.
Gaxiola responded that he had, and the cones were in place to protect the jobsite (Tr. 113, 130,
177, 204).10 At some point, Padilla called Bates, who had not been at the Tech Park project that
day, to inform him that Gaxiola left the jobsite early even though he was supposed to remain 35
there to complete finish rolling (Tr. 29).

8 Examples provided included giving a verbal warning to an employee in the summer of 2014 when
he broke concrete on a customer’s property. This same employee in September 2014 failed to wear a
hardhat at a construction site, and was given a warning (Tr. 110–111). Another employee backed the
water truck into one of the rollers causing damage to the side wall of the truck’s tire; this employee tested
positive for illegal drugs and was placed on a 90-day probationary period during which one drug test
resulted in an inconclusive finding and another was positive for drug use. Thereafter this employee was
fired (Tr. 106–109; GC Exh. 5).
9 Gaxiola clocked out at 5 p.m. (R. Exh. 10).
10 Padilla’s version of events is directly contrary to Gaxiola’s version. As explained further in this
decision, I did not find Padilla to be a credible witness and do not credit his version of events when it
conflicts with the testimony of Gaxiola.
JD(SF)–28–15
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Padilla then confronted Gaxiola about leaving the jobsite early. Based on his experience,
Padilla felt that Gaxiola could not have completed the task of finish rolling (Tr. 131). At that
moment, the paving crew began arriving back at Respondent’s facility. Gaxiola then told Padilla
that he wanted to meet with Bates (Tr. 116). Padilla asked Gaxiola what the problem was, and
Gaxiola responded that Padilla was the problem. Gaxiola wanted to talk with Bates about how 5
Padilla mistreated them, and consistently screamed at them (Tr. 179). Padilla called Bates and
said that Gaxiola and the paving crew wanted to talk with him at Respondent’s facility yard (Tr.
32, 62).
1. The paving crew’s September 19 meeting with Bates10
Bates returned immediately to the yard to meet with the paving crew. Bates and Padilla
attended the meeting along with Gaxiola, Marana, Mariano Ramirez and possibly other
employees.11 During this meeting, which lasted approximately 10 minutes, employees discussed
the Tech Park project and the wet conditions they found (Tr. 37–38). They explained why they 15
could not perform the work properly. Ramirez showed Bates pictures of the wet conditions and
the resulting finished product (Tr. 38, 180).
During this meeting, Gaxiola spoke up, complaining about Padilla’s conduct towards
them. Specifically, Gaxiola complained about Padilla’s yelling and cursing at the employees 20
which affected their ability to perform satisfactorily (Tr. 32–33, 35).12 Gaxiola told Bates that
Padilla expected too much from them. He pleaded with Bates to stop Padilla’s derogatory and
abusive behavior towards them (Tr. 180–181). Marana also spoke supporting the other
employees complaining about Padilla’s treatment of them (Tr. 36, 95, 118).
25
Bates asked Padilla during this meeting if Gaxiola had been telling the truth, to which
Padilla responded that he needed to yell at the employees due to the loud machinery. At some
point during this meeting, Padilla admitted he sometimes cursed at the employees (Tr. 33). Bates
emphasized that Padilla was the supervisor and that the paving crew needed to listen to him.
Bates also said that Padilla was responsible for any mistakes, and that he would speak with 30
Padilla (Tr. 117–118).
The following day, Saturday, September 20, Bates went to the Tech Park jobsite to see
what had happened (Tr. 37). Upon arriving, Bates accompanied by Padilla reviewed the work
35

11 Gastelum did not attend this meeting as he had left earlier when Padilla told the employees they
could go home (Tr. 277). Gaxiola called Gastelum and told him that the employees planned to meet with
Bates on Monday morning which is why he did not return to the yard after leaving for home (Tr. 279,
282). Gastelum agreed with his coworkers that a meeting with Bates was necessary due to Padilla’s
behavior towards them (Tr. 280).
12 Gaxiola, Gastelum, and Marana and their coworkers would discuss amongst themselves Padilla’s
poor treatment (Tr. 169, 217). Gaxiola testified that Padilla consistently yelled and cursed at them since
Padilla began employment with Respondent in the late spring. Gaxiola described Padilla’s supervision as
a “monster” (Tr. 168). Gastelum testified that Padilla would curse at the employees, tell the employees
that they were too old and that he needed a younger crew (Tr. 262–266). The employees agreed to meet
with Bates.
JD(SF)–28–15
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completed the previous day, and immediately knew that portions of the job would need to be
redone.13 Bates did not investigate why the paving crew’s work performed the day prior failed.
Instead, he relied upon his work experience to lead him to the conclusion that the breakdown
roller man and the finish roller man did not perform adequately (Tr. 42). The breakdown roller
man was Marana and the finish roller man was Gaxiola (Tr. 129). Furthermore, Bates testified 5
that the problems with the workmanship at the Tech Park project were not related to the wet area
due to independent testing by a laboratory (Tr. 77–78). However, this testing was performed on
September 18, 1 day before the paving crew began their work at Tech Park (R. Exh. 8).
Bates spoke with Padilla, and they discussed the “poor teamwork” of the paving crew 10
(Tr. 38). Bates elaborated, “I mean, it’s not just one man. It takes a whole team because, you
know, normally, a good team will work together and help each other out” (Tr. 40).
Furthermore, Bates, in his Board affidavit, admitted that on September 20 Padilla and he
also discussed terminating Gaxiola based on his performance (Tr. 39–40). Bates stated in his 15
Board affidavit, “We also noticed a change in his attitude for the worse” (Tr. 41).14 At the
hearing, Bates testified that Gaxiola acted in a “defiant and insubordinate” manner when he
failed to put up the traffic barricades and left the jobsite earlier than he should have (Tr. 41–42).
Bates testified that Gaxiola’s “bad attitude” was exhibited by his failure to place the safety
barricades and leaving the jobsite early (Tr. 77). 20
2. Gaxiola’s termination
On Monday, September 22, approximately 15 to 20 minutes after Gaxiola clocked in to
work, Padilla called him into Respondent’s office (Tr. 119, 182). Padilla also asked the shop 25
mechanic foreman, Mario Marstellar, to join them. Padilla told Gaxiola that he would have to let
him go (Tr. 340–341). Thereafter, Gaxiola became angry and cursed (Tr. 341). Gaxiola denied
causing the problems at the Tech Park project; Padilla then tried to show Gaxiola some pictures
from the job. These pictures showed the roller marks at Tech Park. Padilla told Gaxiola that he
was fired for leaving the job early that prior Friday, and leaving roller marks in the asphalt 30
(Tr. 184). Gaxiola denied arguing with Padilla before he was fired but admitted that after he had
been fired, Marstellar told him to calm down (Tr. 183).

In contrast, Padilla testified that he fired Gaxiola for arguing with him and telling him he
did not have to listen to him (Tr. 120–121). Padilla elaborated that he fired Gaxiola for cursing 35
at him and for being insubordinate which was the only reason why Gaxiola was fired, not for his
work performance (Tr. 121, 365–366).
However, Gaxiola’s termination notice dated September 22 and completed by Padilla,
states: 40

13 One week later, Respondent repaved portions of the Tech Park project jobsite per the client’s
request. The area repaved included the circular drive area which had gotten wet as well as the roller
marks on the roadway (Tr. 70, 76; GC Exh. 2).
14 Bates’ affidavit, given during the Board’s investigation of this charge, is more reliable than his
testimony during the hearing since his recollection of the events would have been fresher.
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Juan left the jobsite U.A. Tech Park without finishing task that was given as finish roller
man. Juan got to yard befor[e] entire crew, I asked Juan to go back to U.A. Tech Park he
said NO he had finished. So I Robert went to Job site found Job not comtleted [sic] toll
marks all over roadway & parking lot also did not put back traffic control back up was
big safety hazard.5
(R. Exh. 1). Padilla testified that the description in Gaxiola’s termination notice was the reason
why the argument between Gaxiola and himself occurred, but that he actually fired Gaxiola for
his conduct during this meeting (insubordination) (Tr. 122). Padilla testified that he did not put
this reason for Gaxiola’s termination on the form because “It slipped my mind” (Tr. 123).1510
After Gaxiola’s termination, many employees including Gastelum discussed Gaxiola’s
termination, expressing concern about who may be next (Tr. 293). Gastelum never discussed
Gaxiola’s firing with anyone from Respondent.
15
3. Bates’ September 23 meeting with the paving crew
On approximately Tuesday, September 23, Bates called a meeting with the paving crew.
The employees attending the meeting included Marana and Gastelum, along with Bates, Padilla,
and Marstellar. Bates scheduled the meeting to discuss Gaxiola’s early absence on Friday, 20
September 19, and the paving crew’s “workmanship” at the Tech Park project (Tr. 46).
Bates understood from Padilla that Gaxiola had told his coworkers he needed to leave
early that Friday because his uncle had passed away (Tr. 47).16 Bates told the employees that he
was concerned that no one had offered to help Gaxiola complete the work so he could leave early 25
on September 19 (Tr. 48–49, 76).
Bates also informed the paving crew that the client for the Tech Park project rejected the
work and it needed to be redone. Bates angrily spoke with the employees about their lack of
teamwork, what happened at the jobsite, their responsibilities, and what they would do in the30
future for teamwork (Tr. 76, 290). Bates told the employees how much redoing the Tech Park
project would cost him. Bates testified that the problems at the jobsite were due not only to
Gaxiola but also to Marana who was the other roller man on September 19 (Tr. 84). Bates

15 Prior to his termination on September 22, Gaxiola voluntarily resigned in February 2013 after he
was verbally warned for being late (R. Exh. 2). In June 2013, Gaxiola also quit because it was “too hot”
and “too hard,” and he did not want to work (R. Exh. 3). In May 2008, Respondent suspended Gaxiola
for 2 days after he left a jobsite without notifying anyone (R. Exh. 4). Thereafter, Gaxiola did not return
to work. Bates testified that only upon reviewing Gaxiola’s personnel records after Gaxiola had been
fired did he realize that Gaxiola had worked for Respondent several times in the past, and had quit or
resigned several times (Tr. 60). However, subsequent to this testimony, Bates stated that he was aware of
Gaxiola’s personnel history with Respondent when Padilla called him the afternoon of September 19 to
discuss Gaxiola’s actions that day (Tr. 61–62). As discussed further, generally I found Bates to be a less
than credible witness. This inconsistent testimony is one example of Bates’ less than credible testimony.
16 During his testimony, Bates stated that he “misunderstood” what Padilla had told him and thus, his
Board affidavit was incorrect. Bates learned that Gaxiola requested to take Saturday off because his uncle
had passed away (Tr. 48). It is irrelevant what Bates later understood Padilla to say regarding Gaxiola’s
absence. What is significant is what Bates understood at the time of the September 23 meeting.
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elaborated at the hearing, “not to point fingers just at Juan Gaxiola, but also at the other roller
man and the raking was terrible on that job” (Tr. 84–85).
At this point during the meeting, Marana said to Bates that the problems at the jobsite
arose because of Padilla’s yelling, Padilla was to blame for the poor quality, and that Bates 5
should not yell at him (Tr. 85, 96, 256–257). Bates testified that he told Marana, “Listen, I’m
telling you to improve your work and, if you don’t like it, you get out of here right now. You
can leave” (Tr. 85, 97, 230, 232–233, 256, 381). Marana testified that Bates said, “[H]e told me
he could yell to me or to anybody that was there. That’s when he told me that I was fucking
fired” (Tr. 381).17 Gastelum testified that Marana attempted to speak but then Bates said, “You 10
mother fucker, get the fuck out of here, out of my company right now. You’re fired. Get out of
here. Go. Go. Get the fuck out of here. I don’t want you here. Go” (Tr. 290). However, Marana
remained at the meeting (Tr. 234, 291, 324).
Gastelum spoke after Bates calmed down. Gastelum told Bates that with Bates and 15
Padilla’s combined experience they should know that the work would not be perfect due to the
water (Tr. 291). Bates responded with sarcasm (Tr. 292).
After the meeting ended, Bates informed Marana that he was not fired (Tr. 85, 97, 153,
247, 382). Marana came to work the next day, and has continued employment with Respondent 20
(Tr. 236).18
C. Gastelum’s Termination
On Wednesday, October 1, Padilla issued Gastelum a warning for unsatisfactory 25
performance for his alleged unsafe unloading of equipment, and damage to the dump truck (R.
Exh. 11; Tr. 300). That day, Padilla asked Gastelum to get a paver from Respondent’s facility
(Tr. 87). When Gastelum began to unload the paver from the trailer, the back of the dump truck
and the trailer began to jack-knife. Another employee saw what was happening and pushed the
safety release button (Tr. 87–88, 298). This incident caused damage to the dump truck (R. 30
Exh. 9; Tr. 299). Gastelum admitted partial responsibility for the incident (Tr. 300). The
warning issued to Gastelum for this incident indicated that another safety violation by Gastelum
would result in termination. The employee who pressed the safety release button was not
disciplined.
35

17 Bates and Marana disagree on whether Bates told Marana he was fired. Gastelum credibly testified
that Bates told Marana to leave and that he was fired (Tr. 290). Whether Bates used the term “fired” is
insignificant. Bates admitted that he did tell Marana that he could leave if he could not perform the job.
Thus, what is clear is that Marana understood, at least for a brief time period, that he was fired and told to
leave the workplace.
18 I do not credit Marana’s version of events for the September 23 meeting. Marana’s testimony
conflicted with his affidavit provided during the Board investigation. During the Board investigation,
Marana stated that after the meeting ended, Bates approached him and told him he was not fired (Tr. 247).
During his hearing testimony, Marana on direct examination testified that no one from Respondent told
him he was not fired, and he came to work the following day because he needed to work. On redirect,
Marana then testified that after the meeting Bates came to him and told him he was still fired while using
profanity (Tr. 257). Because Marana’s testimony differed every time he was asked the same or similar
question, I cannot credit his testimony.
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Thereafter, Padilla fired Gastelum on Friday, October 10. Padilla assigned Gastelum
responsibility for raking a handicap spot (Tr. 302). Padilla told Gastelum his raking was poor
that day but Gastelum told Padilla that a new employee caused the problems, not Gastelum
(Tr. 302). Padilla testified that he fired Gastelum for his “poor workmanship” in his raking
(R. Exh. 12; Tr. 125, 363). Padilla testified that he spoke to Gastelum weekly, beginning before 5
the September 22 meeting, about the poor quality of his raking (Tr. 141–142). Even on the Tech
Park project, Padilla spoke with Gastelum about his poor raking (Tr. 364). According to Bates,
Padilla began speaking to him about Gastelum’s workmanship 3 to 4 weeks before he was fired
(Tr. 51). Gastelum admitted that Padilla had told him to work faster (Tr. 305). Padilla testified
that he fired Gastelum for his poor raking on several projects, and that he does not “fire 10
somebody because of one project” (Tr. 363).
Prior to his termination, Respondent disciplined Gastelum several times for damaging
Respondent’s equipment. In September 2007, Gastelum damaged Respondent’s property;
Respondent issued Gastelum a warning and placed him on probation (GC Exh. 7). In August 15
2008, Gastelum completed a property damage report when he damaged Respondent’s truck (GC
Exh. 8). In January 2009, Respondent warned Gastelum that his paving/patches were poorly
constructed (GC Exh. 8). Respondent also issued Gastelum a warning in November 2009 for
unsatisfactory performance when he brought broken items in his truck load with a subsequent
violation leading to a suspension (GC Exh. 6). In December 2009, Respondent suspended 20
Gastelum for damaging equipment when he was in an accident, and then subsequently
terminated his employment (GC Exh. 6). The narrative in this suspension explained that
Gastelum had been involved in other accidents which damaged Respondent’s equipment. These
actions were seen as serious safety issues.
25
I. DISCUSSION AND ANALYSIS
A. Witness Credibility
The witness’ testimony varied considerably on the key events. Thus, I must make a 30
decision as to which parts of the sharply differing accounts are credible. A credibility
determination may rely on a variety of factors, including the context of the witness’ testimony,
the witness’ demeanor, the weight of the respective evidence, established or admitted facts,
inherent probabilities and reasonable inferences that may be drawn from the records as a whole.
Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 35
(2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom.,
56 Fed. Appx. 516 (D.C. Cir. 2003); see also Roosevelt Memorial Medical Center, 348 NLRB
1016, 1022 (2006) (noting that an ALJ may draw an adverse inference from a party’s failure to
call a witness who may reasonably be assumed to be favorably disposed to a party, and who
could reasonably be expected to corroborate its version of event, particularly when the witness is 40
the party’s agent). Credibility findings need not be all of all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, supra.
Along with my credibility findings set forth above in the findings of fact for this decision, 45
I found the testimony of Gaxiola and Gastelum to be mostly credible. Both Gaxiola and
Gastelum testified in an accurate and forthright manner, and provided generally consistent,
specific and detailed testimony. In making the above findings of fact, I relied extensively on the
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testimony given by Gaxiola and Gastelum. I relied partially on Marstellar’s testimony but only
when it was not contradicted by the credible testimony of Gaxiola and Gastelum.
In contrast, I do not find credible the testimonies of Bates, Padilla, and Marana. Padilla’s
testimony generally was inconsistent and contrary to the documentary evidence including his 5
own affidavit given during the Board investigation which is more proximate in time to the events
in this case than the hearing. Most damaging to Padilla’s testimony was his explanation for why
he did not provide the “true” reason for Gaxiola’s termination in the paperwork; Padilla testified
flippantly, “It slipped my mind.” I find his lack of candor to be significant, and did not credit
any of his testimony.10
Second, Marana’s testimony at the hearing was contradicted by his Board affidavit.
Specifically, Marana denied knowing that he was not actually fired at the end of the September
23 meeting. However, in his Board affidavit Marana stated that Bates told him he was not fired.
Even on redirect Marana’s version of this event changed. Because his responses changed 15
throughout his testimony, I cannot credit his testimony generally. However, I credit those
portions of his testimony corroborated by the credible testimony of Gastelum.
Third, Bates’ testimony lacked candor generally in the critical portions of his testimony.
Significantly, Bates testified that he called the September 23 meeting, in part, to discuss why the 20
other crew members did not help Gaxiola finish his work late on Friday, September 19. If this
was true and if he had such a concern, then it makes little sense for Bates to have approved
Padilla’s firing of Gaxiola for leaving early on Friday, September 19. I also could not credit his
testimony that he did not tell Marana he was fired at the September 23 meeting since it was
contradicted by the credible testimony of Gastelum. However, I do credit his version of the 25
context in which he made this statement. Bates testimony also lacked significant details but
these details came to light on cross-examination due to his testimony in his Board affidavit.
B. Respondent Threatened Employees with Discharge Violating the Act
30
The complaint and amended complaint alleges at paragraphs 5(a) and (b)(1) that
Respondent violated Section 8(a)(1) of the Act on about September 22, when through Bates it
threatened employees with discharge because they complained about Respondent’s criticism of
their work performance.19
35
Under Section 7 of the Act, employees have the right to engage in concerted activities for
their mutual aid or protection. Section 8(a)(1) makes it unlawful for an employer (via
statements, conduct, or adverse employment action such as discipline or discharge) to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Relco
Locomotives, 358 NLRB No. 37, slip op. at 12 (2012), enfd. 734 F.3d 764 (8th Cir. 2013).40
In general, the test for evaluating whether an employer’s conduct or statements violate
Section 8(a)(1) of the Act is whether the statements or conduct have a reasonable tendency to
interfere with, restrain, or coerce protected activities. Id.; Station Casinos, LLC, 358 NLRB No.
153, slip op. at 18–19 (2012); Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB 1339, 45

19 Respondent failed to address this allegation in its post hearing brief, relying only upon its position
that Marana had never actually been fired (R. Br. at 14–15).
JD(SF)–28–15
11
1339 fn. 3 (2000); Farm Fresh, supra, slip op. at 14. Apart from a few narrow exceptions, an
employer’s subjective motivation for its conduct or statements is irrelevant to the question of
whether those actions violate Section 8(a)(1) of the Act. See Station Casinos, LLC, supra. The
Board considers the totality of the circumstances in assessing the reasonable tendency of an
ambiguous statement or a veiled threat to coerce. KSM Industries, 336 NLRB 133, 133 (2001). 5
The burden of proof lays with the General Counsel to prove 8(a)(1) allegations by a
preponderance of the evidence.
Here, the only incident where an employee was threatened with discharge occurred 10
during the Tuesday, September 23 meeting called by Bates to discuss the workmanship of the
paving crew on the Tech Park project. Bates yelled at Marana during this meeting, and told him
that he was partially to blame for the failure on that job. In response, Marana told Bates that it
was not his fault, not to yell at him, and that it was the fault of Padilla. Bates then said to
Marana, “Listen, I’m telling you to improve your work and, if you don’t like it, you get out of 15
here right now. You can leave” (Tr. 85). Marana testified that Bates actually said, “[H]e told me
he could yell to me or to anybody that was there. That’s when he told me that I was fucking
fired” (Tr. 381). Gastelum, who provided credible testimony, could not recall what Marana said
to Bates but recalled that Bates clearly told Marana to leave and that he was fired. As discussed
later, although Bates retracted his discharge statement to Marana, his statement to Marana 20
constituted a threat.
Marana was engaged in protected concerted activity during this meeting since he
protested Bates’ treatment of his coworkers and himself during this meeting while also casting
blame on Padilla for the failed project. I find that Bates’ statement about firing of Marana would 25
tend to restrain or interfere with employees in the exercise of their Section 7 rights. The context
in which this statement was made to Marana is significant. Marana, who spoke critically of
Padilla during the September 19 meeting, continued his criticism of Padilla’s treatment of
employees during the September 23 meeting. During the September 19 meeting, Gaxiola and
Marana complained that the problems at Tech Park project resulted in defects in the paving; 30
Padilla was to blame due to his abusive behavior towards them. Marana during the September
23 meeting again blamed Padilla for the workmanship at the jobsite. Bates responded to Marana
with a threat by telling him he was fired. Even Bates admitted that he told Marana that if he did
not perform how Bates expected, then he could leave.
35
It is well settled that an employer’s invitation to an employee to quit in response to
protected concerted activity is coercive, because it conveys to employees that engaging in
concerted activities and their continued employment are not compatible, and implicitly threaten
discharge of the employees involved. McDaniel Ford, 322 NLRB 956, 956 fn. 1 and 962 (1997)
(citing Stoody Co., 312 NLRB 1175, 1181 (1993), Kenrich Petrochemicals, 294 NLRB 519, 531 40
(1989), and L.A. Baker Electric, 265 NLRB 1579, 1580 (1983)); see also Jupiter Medical Center
Pavilion, 346 NLRB 650, 651 (2006) (employer’s statement that, if employee was unhappy,
“[m]aybe this isn’t the place for you . . . there are a lot of job’s out there” was an implied threat
of discharge); Paper Mart, 319 NLRB 9 (1995) (president’s statement that if employee “was not
happy he could seek employment elsewhere” was implicit threat of discharge); Intertherm, Inc., 45
235 NLRB 693, 693 fn. 6 (1978) (implied threat to tell employees that if “he was not happy with
the company he should look elsewhere for a job”) enfd. in relevant part 596 F.2d 267 (8th Cir.
JD(SF)–28–15
12
1979); Chinese Daily News, 346 NLRB 906, 906 (2006) (implied threat telling employee to
resign if she was not happy with her job), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).
Considering Bates’ comments to Marana came after he mentioned Padilla, along with the
context of this meeting and the September 19 meeting, I find that Bates’ comments reasonably 5
tended to interfere with, restrain, or coerce employees in their protected, concerted activities and
thus constituted a threat, and thus a violation of Section 8(a)(1) of the Act.
C. Respondent’s Discharge of Gaxiola Violated the Act
10
The complaint and amended complaint, at paragraphs 5(a) and (c), alleges that Gaxiola
was terminated because of his protected concerted activities, in violation of Section 8(a)(1) of the
Act. Respondent argues that Gaxiola was terminated for a variety of reasons, including failing to
finish his work assignment, leaving the work site prematurely, and insubordination. I disagree
with Respondent, and find that the General Counsel has sustained its burden of proof.15
An employee’s discharge independently violates Section 8(a)(1) of the Act when it is
motivated by employee activity protected by Section 7. Lou’s Transport, 361 NLRB No. 158,
slip op. at 2 (2014). To prove an adverse action violates Section 8(a)(1), the General Counsel
must establish, by preponderant evidence , that: (1) the employee engaged in concerted activity, 20
(2) the employer knew about the concerted activity, and (3) the employer had animus toward the
activity. Meyers Industries, 268 NLRB 493, 497 (1984); Grand Canyon University, 359 NLRB
No. 164 (2013). If the General Counsel is able to make such a showing, the burden of
persuasion shifts to the employer “to demonstrate that the same action would have taken place
even in the absence of the protected conduct.” Wright Line, 251 NLRB 1083, 1089 (1980). See 25
also Signature Flight Support, 333 NRLB 1250, (2001) (applying Wright Line in context of
discharge for protected concerted activity).
The employer cannot meet its burden by merely showing that it had a legitimate reason
for its action; rather, it must demonstrate that it would have taken the same action in the absence 30
of protected conduct. Bruce Packing Co., 357 NLRB No. 93, slip op. at 3–4 (2011); Roure
Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). If the employer’s proffered reasons are
pretextual—i.e., either false or not actually relied on—the employer fails by definition to show it
would have taken the same action for those reasons regardless of the protected conduct.
Metropolitan Transportation Services, 351 NLRB 657, 659 (2007); Golden State Foods Corp., 35
340 NLRB 382, 385 (2003); Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982). Absent a showing of antiunion, or anti-Section 7 activity, an employer
may discharge an employee for a good reason, a bad reason or no reason at all without running
afoul of the labor laws. See Clothing Workers v. NLRB (AMF, Inc.), 564 F.2d 434, 440 (D.C.
Cir. 1977).40
As to the first factor, Gaxiola clearly engaged in concerted activity. Gaxiola spearheaded
the meeting with Bates after he and his coworkers could no longer tolerate Padilla’s abusive
behavior towards them. Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12, slip op. at
4–5 (2014). Concerted activity directed toward supervisory conduct, such as “rude, belligerent, 45
and overbearing behavior” which directly affects the employees’ work, constitutes protected
activity under the Act. Arrow Electric Co., 323 NLRB 968, 970 (1997), enfd, 155 F.3d 762
(6th Cir. 1998). As for the second factor, it is undisputed that Respondent had notice that Gaxiola
JD(SF)–28–15
13
acted in concert with other employees. Gaxiola spoke with Padilla to call Bates to hold a
meeting to discuss Padilla’s supervision. Furthermore, along with Bates, Padilla attended the
September 19 meeting and witnessed who spoke during this meeting and what they said.
There is ample evidence to show that Gaxiola’s termination was motivated by his 5
protected, concerted activity. The General Counsel sustained its burden to prove animus toward
the protected activity. Improper motivation may be established by circumstantial evidence,
inferred from several factors, including pretextual and shifting reasons given for the employee’s
discharge, the timing between an employee’s protected activities and the discharge, inconsistent
treatment of employees, and the failure to adequately investigate alleged misconduct. Temp 10
Masters, Inc., 344 NLRB 1188, 1193 (2005); Promedica Health Systems, Inc., 343 NLRB 1351,
1361 (2004); Flour Daniel, Inc. 311 NLRB 498 (1993). Discriminatory motive may also be
established by showing departure from past practice or disparate treatment. See JAMCO, 294
NLRB 896, 905 (1989), affd. mem., 927 F.2d 614 (11th Cir. 1991), cert. denied 502 U.S. 814
(1991); Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999). 15
The timing of Gaxiola’s termination, only 3 days after the September 19 meeting, and his
first day back to work, is strong evidence of unlawful motivation. See Best Plumbing Supply,
310 NLRB 143, 144 (1993). In fact, the day after the employee’s meeting with Bates, Bates and
Padilla discussed Gaxiola’s changing attitude for the “worse.” This comment is a veiled 20
reference to Gaxiola’s conduct the day before. Similarly, the Board has found evidence of
animus where an employer cited that an employee was a “disruptive force in the workplace.”
Skyline Lodge, 305 NLRB 1097 fn. 1 (1992), enfd. 983 F.2d 1068 (6th Cir. 1992).
Significantly, Padilla provided shifting reasons for terminating Gaxiola. When an 25
employer is unable to maintain a consistent explanation for its conduct, but rather resorts to
shifting defenses, “it raises the inference that the employer is ‘grasping for reasons to justify its
unlawful conduct.’” Meaden Screw Products Co., 336 NLRB 298, 302 (2001), citing Royal
Development Co. v. NLRB, 703 F.2d 363, 372 (9th Cir. 1983). See also Master Security Services,
270 NLRB 543, 552 (1984) (animus demonstrated where an employer used a multiplicity of 30
reasons to justify disciplinary action). Padilla noted on Gaxiola’s termination paperwork that he
was terminated for leaving the jobsite early and for failing to place the safety cones. However,
Padilla testified that he actually terminated Gaxiola for insubordination when Gaxiola yelled at
him when Padilla sought to talk with Gaxiola about leaving the jobsite early that prior Friday
resulting in poor quality at the Tech Park project. Marstellar, currently employed by 35
Respondent, credibly testified that Gaxiola raised his voice at Padilla after he had already been
fired. Current employees are particularly credible since they are testifying adversely to their
pecuniary interests. Advocate South Suburban Hospital, 345 NLRB 209 fn. 1 (2006), citing
Flexsteel Industries, 316 NLRB 745 (1995), affd. mem. 83 F.3d 419 (5th Cir. 1996). When asked
why he did not include the “real” reason for terminating Gaxiola in the paperwork, Padilla 40
testified, “It slipped my mind.” Providing additional reasons for discharge at a hearing provides
evidence of pretext. Lucky Cab Co., 360 NLRB No. 43, slip op. at 6 (2014).
Based on the foregoing, I find that the General Counsel has met its burden to prove that
animus toward Gaxiola’s protected concerted activities motivated Respondent’s decision to 45
discharge him.
JD(SF)–28–15
14
Having concluded that the General Counsel satisfied his initial burden under Wright
Line, the burden shifts to Respondent to prove, as an affirmative defense, that it would have
disciplined Gaxiola in the absence of his protected, concerted activity. Respondent claims that
Gaxiola failed to complete his work on September 19, and the resulting termination was justified
(R. Br. at 7–11). Respondent has not proven its claim. 5
First, I have credited Gaxiola’s testimony that he completed his assigned tasks before
leaving work on September 19. In addition to the reasons set forth above, such as the timing and
the shifting reasons for discharge, it is also significant that Respondent chose to terminate
Gaxiola rather than give him a warning or other disciplinary measure for allegedly leaving the 10
worksite early and not completing his assignment. Respondent did not follow its progressive
disciplinary practice. Furthermore, Padilla testified that he would not terminate an employee for
performance on one job alone. In other instances of disciplinary actions, Respondent chose to
give several warnings to employees before finally terminating them. For example, one
employee failed at least 3 drug tests before he was terminated. Evidence of disparate treatment 15
supports a finding of animus. Camaco Loran Mfg. Plant, 356 NLRB No. 143, slip op. at 5
(2011).
Respondent also argues that Gaxiola’s work history showed a pattern of not completing
tasks. However, Respondent continued to hire Gaxiola, and during his latest employment with 20
Respondent, Gaxiola worked for the past 6 years without any disciplinary actions.
Finally, Respondent’s subsequent actions belie the true reasons for Gaxiola’s
termination. Bates testified he held the September 23 meeting with the paving crew, after
Gaxiola’s termination, to discuss, in part, why the employees did not attempt to help Gaxiola 25
since he needed to leave early that day. Bates also admitted that the poor workmanship on the
Tech Park project was due to the entire team failing to work together. It makes little sense for
Bates to have approved Gaxiola’s termination for leaving the jobsite early and causing its poor
quality when it was a poor job performed by the entire team and because Gaxiola needed to
leave early that day as he understood at the time of the September 23 meeting. It is reaily 30
apparent that Gaxiola’s protected concerted activity was a motivating factor in Respondent’s
decision to terminate. Respondent failed to sustain its burden of proof.
Accordingly, I find that the General Counsel proved that Respondent violated Section
8(a)(1) of the Act when it terminated Gaxiola.35
D. Respondent did not Discharge Marana
The complaint and amended complaint, at paragraphs 5(a) and (e), alleges that Marana
was terminated because of his protected concerted activity, in violation of Section 8(a)(1) of the 40
Act. Respondent argues that Marana was never actually fired. I agree with Respondent.
Generally, employees cannot claim discriminatory discharge unless they have been
actually discharged. In analyzing this allegation, I must rely solely on credibility. As set forth
above, I find that Bates told Marana he was fired, but shortly after the meeting Marana learned 45
that Bates did not actually intend to fire Marana. Marana also never left the meeting. Marana
had been engaged in concerted activity when he attended and actively participated in the
JD(SF)–28–15
15
September 19 meeting discussing Padilla’s supervision of the paving staff. Marana also spoke
with his coworkers prior to this meeting about Padilla’s poor supervision. Furthermore, Marana
engaged in concerted activity during Bates’ September 23 meeting when he blamed Padilla for
the poor workmanship on the Tech Park project. However, in reviewing the totality of the
circumstances, as discussed above, Bates threated Marana with job loss violating Section 8(a)(1) 5
of the Act but never actually fired Marana.
The General Counsel essentially argues that because Marana had been engaged in
concerted activity prior to the September 23 meeting as well as during the September 23 meeting
when he lay the blame of the poor workmanship on Padilla that Bates response to “fire” Marana 10
is both a threat and an actual discharge, resulting in 2 violations of the Act. The General Counsel
cited no Board cases where an 8(a)(1) violation had been found for discharge without an actual
discharge or constructive discharge.
The only case cited by the General Counsel, Georgia Hosiery Mills, 207 NLRB 781 15
(1973), does not support a finding of a violation of the Act. In Georgia Hosiery Mills, the
employer terminated an employee the day after she led a group of employees in a work stoppage
to protest their working conditions and wages. The employer refused to allow the discharged
employee into the workplace. One hour after her discharge, the employer reinstated the
discharged employees. The Board determined that although the termination had been 20
substantially remedied before the complaint had been issued, the termination occurred during the
course of events involving other violations of the Act, and thus the termination violated the Act.
The situation presented here is distinguishable. Marana suffered no actual harm, and his “firing”
was cleared up soon after the September 23 meeting ended.
25
Hence, I find that the General Counsel failed to show that Respondent violated Section
8(a)(1) by discharging Marana, and recommend that this allegation be dismissed.
E. Respondent’s Discharge of Gastelum did not Violate the Act.
30
In the complaint and amended complaint paragraphs 5(a) and (d), the General Counsel
alleges that Gastelum was terminated because of his protected concerted activities, in violation of
Section 8(a)(1) of the Act. Respondent argues that Gastelum was terminated for cause.
Although I find Gastelum to be a highly credible witness, the General Counsel failed to sustain
its burden of proof that Respondent terminated Gastelum for protected, concerted activity. 35
The same Wright Line analysis as discussed above applies to Gastelum’s discharge. As
for the first factor, Gastelum arguably engaged in concerted activity when he spoke during
Bates’ September 23 meeting. Once Bates calmed down, Gastelum told Bates that with the
combined experience of Bates and Padilla they should know the work would not turn out well 40
due to the water in the ground. Bates responded with sarcasm. Gastelum’s comments were a
continuation of the employees’ problems with Padilla’s supervision and failure of the Tech Park
project. Alton H. Piester, LLC, 353 NLRB 369 (2008). As for the second factor, obviously
Respondent was aware of Gastelum’s concerted activity since he attended and spoke at the
September 23 meeting but the record is devoid of any evidence that Respondent knew that 45
Gastelum agreed with his coworkers regarding Padilla’s poor supervision nor that he would have
attended the September 19 meeting if he had been aware of it.
JD(SF)–28–15
16
Regarding the third prong, the General Counsel failed to prove animus by Respondent
when it terminated Gastelum. Notably and significantly, Gastelum did not attend the September
19 meeting where the employees proactively met with Bates to complain about Padilla.
Furthermore, even though Gastelum spoke during the September 23 meeting, his comments did
not mention Padilla’s poor supervision, which was the subject of the September 19 meeting. 5
Thus, there is a failure to prove animus toward Gastelum’s activities, and I find that the General
Counsel has failed to prove by a preponderance of the evidence that a motivating factor for
Gastelum’s discharge was his protected, concerted activity.
Moreover, even had the General Counsel shown that Gastelum’s protected, concerted 10
activity was a motivating factor, I find that Respondent has shown that it would have discharged
Gastelum in any event. Respondent also did not terminate Gastelum until 3 weeks after Gaxiola
had been terminated. In the interim Gastelum had not engaged in any other concerted activity.
The factual scenario presented here is not analogous the various decisions cited by the General
Counsel in which a 3 week gap was factor supporting pretext or animus on the part of the 15
employer.
Even before terminating Gastelum, Respondent issued Gastelum a warning for the safety
incident of October 1. Gastelum’s disciplinary records show that he had been warned several
times regarding various safety violations, including damage to company equipment. When 20
Respondent eventually terminated Gastelum on October 10, Padilla mentioned that Gastelum had
performed poorly raking on several projects. Gastelum disagreed with Padilla’s assessment but
admitted that he had been asked to work faster. In all, the General Counsel has shown no animus
on the part of Respondent when terminating Gastelum.
25
Hence, I find that the General Counsel failed to show that Respondent violated Section
8(a)(1) by discharging Gastelum, and recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
30
1. Respondent has been an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act when it threatened Marana on
September 23.35
3. Respondent violated Section 8(a)(1) of the Act when it terminated Gaxiola on
September 22.
4. By engaging in the unlawful conduct set forth above, Respondent has engaged in unfair 40
labor practices affecting commerce within the meaning of Sections 8(a)(1) and Section
2(2), (6), and (7) of the Act.
5. All other allegations are dismissed.
45
JD(SF)–28–15
17
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist there from and to take certain affirmative action designed to
effectuate the policies of the Act.5
Having threatened employees with loss of employment for engaging in protected
concerted activities, Respondent is ordered to cease and desist from this action.
Respondent, having discriminatorily discharged employee Juan Gaxiola, must offer him 10
full reinstatement to his former position or, if his position no longer exists, to substantially
equivalent position, without prejudice to his seniority or any other right or privileges previously
enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result
of the discrimination against him.
15
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
In addition, Respondent shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. Respondent shall also compensate the 20
discriminatee for the adverse tax consequences, if any, of receiving one or more lump-sum
backpay awards. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
I will order that the employer post a notice in the usual manner, including
electronically to the extent mandated in J. Picini Flooring, 356 NLRB No. 9, slip op. at 5–6 25
(2010). In accordance with J. Picini Flooring, the question as to whether an electronic notice
is appropriate should be resolved at the compliance phase. Id., slip op. at 3.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2030
ORDER
The Respondent, Bates Paving & Sealing, Inc., Tucson, Arizona, its officers, agents,
successors, and assigns, shall35
1. Cease and desist from
(a) Cease and desist from threatening employees with loss of employment for
engaged in protected concerted activities.40
(b) Discharging or otherwise discriminating against any employee for engaging in
protected, concerted activity and/or for violating an unlawful rule.

20 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(SF)–28–15
18
(c) 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 effectuate the policies of the Act.5
(a) Within 14 days of the date of the Board’s Order, offer Juan Gaxiola full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
10
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to Juan Gaxiola’s unlawful discharge and within 3 days thereafter notify him in writing
that this has been done and that the discharge will not be used against him in any way.
(c) Make Juan Gaxiola whole for any loss of earnings and other benefits suffered as a 15
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(d) Compensate Juan Gaxiola for the adverse tax consequences, if any, of receiving a
lump sum backpay award, and file a report with the Social Security Administration allocating the 20
backpay award to the appropriate calendar quarters.
(e) 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 the Board
or its agents, all payroll records, social security payment records, timecards, personnel records 25
and reports, 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.
(f) Within 14 days after service by the Region, post at its facility in Tucson, Arizona,
the attached notice marked “Appendix”21 on forms provided by the Regional Director for Region 30
28, after being signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respondent customarily communicates with 35
its employees by such means. Reasonable steps shall be taken by the Respondent 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 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 40
at any time since September 19, 2014.

21 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(SF)–28–15
19
(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 complaint is dismissed insofar as it alleges violations of 5
the Act not specifically found.
Dated, Washington, D.C. July 20, 2015
10
____________________
Amita Baman Tracy
Administrative Law Judge
15
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 make threats to you that engaging in protected concerted activity could result
in job loss.
WE WILL NOT terminate you because of your protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of this Order, offer Juan Gaxiola full reinstatement to
his former job or, if that job no longer exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Juan Gaxiola whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Juan Gaxiola for the adverse tax consequences, if any, of receiving one
or more lump-sum backpay awards.
WE WILL, within 14 days from the date of this Order, remove from our files any references to
the unlawful discharge of Juan Gaxiola, and notify him in writing that this has been done and
that the discipline and discharge will not be used against him in any way.
BATES PAVING & SEALING, 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.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-142681 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.
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, (602) 640-2146.