DAVIES, INC., D/B/A DALLAS GLASS

National Labor Relations Board - Administrative Judge Opinions

Feb 25, 2013

19-CA-078239 (N.L.R.B. Feb. 25, 2013)

JD(SF)–12–13
Salem, Oregon
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
DAVIES, INC. d/b/a DALLAS GLASS
and
INTERNATIONAL UNION OF PAINTERS Case: 19–CA–078239
AND ALLLIED TRADES, DISTRICT COUNCIL #5
Helena A. Fiorianti, Esq.,
for the Acting General Counsel.
Richard VanCleave, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
Eleanor Laws, Administrative Law Judge. This case was tried in Portland, Oregon on
December 18, 2012. The International Union of Painters and Allied Trades, District Council #5
(the Charging Party or Union) filed the charge on April 6, 2012,1 and the General Counsel issued
the complaint on August 30, 2012. Davies Inc., d/b/a Dallas Glass (the Respondent or Dallas
Glass) filed a timely answer denying that it committed any unfair labor practices and contending
that the complaint allegations are time-barred.
The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act) by failing to reinstate Mike James and Roman Ramos to
their former positions or substantially equivalent positions since on or about November 14, 2011.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a residential and commercial glazing company in the construction
industry in Salem, Oregon. During the past twelve months and at all material times it derived
gross revenues in excess of $500,000 and purchased and received goods valued in excess of

1 All dates are in 2012 unless otherwise indicated.
JD(SF)–11–13
$50,000 directly from points outside the state of Oregon. The 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 and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES5
A. Factual Background
The parties entered into stipulations regarding many of the relevant facts, which are
incorporated throughout this decision. (Jt. Exh. 1).2 10
1. The Respondent’s Operations
The Respondent is a residential and commercial glazing company in Salem, Oregon.
Brian Johnston (Johnston) has been part owner of Respondent since 2003, and is currently its 15
Chief Executive Officer (CEO). Darrand Davies (Davies) has been part owner of Respondent
since around 1991, and is currently its President. The Respondent’s employees are not
represented by a Union.
A number of the jobs the Respondent bids are classified by the Oregon Bureau of Labor 20
and Industry (BOLI) as public works projects. These projects are often referred to as “prevailing
wage rate” jobs because the workers’ pay rate is mandated by BOLI. All employees performing
glazing work receive the same wage rate for working on a public works project, regardless of the
employees’ experience or the specific tasks they perform. As of October 1, 2011, the basic
hourly rate for such projects was $31.83, plus $15.36 in fringe benefits.25
The State of Oregon has an apprenticeship program that lasts 4 years and requires a
minimum of 144 related classroom hours per year and 8,000 on-the-job training hours. (R. Exh.
1). The Union also has an apprenticeship program that requires a general glazier apprentice to
serve at least 4 years before becoming a journeyman. Union Apprentices must serve eight 6-30
month terms to earn prevailing journeyman glazier wages. (R. Exh. 2).
Dallas Glass uses a mix of journeyman glaziers, assistants, and laborers who are overseen
by general foremen. Jobs are staffed with a combination of Dallas Glass’ own employees as well
as temporary employees from a temporary company. General foremen earned at least $22 per 35
hour, journeyman glaziers earned $18–$25 per hour, and assistant glaziers earned $12–$18 per
hour. (R. Exhs. 5, 12). Starting pay rates for laborers for non-prevailing wage rate jobs the
Respondent hired through Express Employment Professionals, a temporary agency, were $10–
$14 per hour as of December 2011. (R. Exh. 10). Some employees are classified as journeyman
glaziers even though they have not completed the state’s apprenticeship requirements. Johnston 40
makes decisions on how to classify employees based on his assessment of their skill.

2 I granted the joint motion to enter into the stipulations.
Abbreviations used in this decision are as follows: “Tr.” for transcript; “Jt. Exh.” for joint exhibit; “R.
Exh.” for Respondent’s exhibit; and “GC Exh.” for Acting General Counsel’s exhibit. 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.
JD(SF)–12–13
3
2. Respondent and the Alleged Discriminatees
On or about May 30, 2007, the Respondent hired Mike James (James) as a commercial
journeyman glazier with a starting pay rate of $17 per hour. James has done glazing work since 5
1987 and has completed the state’s apprenticeship program. On or about June 27, 2007, the
Respondent hired Roman Ramos (Ramos) as a commercial journeyman glazier with a starting
pay rate of $15 per hour. Ramos has done glazing work since 1994 and has completed the state’s
apprenticeship program.
10
James’ work at Dallas Glass consisted of installing window frames, glass, and various
other components at the Jefferson and Tualatin condominium projects and the WYMCA project.
He also installed handrails at the River North condominium project. Ramos’ work at Dallas
Glass consisted of installing window frames, glass, and various other components at the River
North project and at a foster home called Terwilliger. James and Ramos received their work 15
instructions from the project foremen. They each frequently worked in pairs with other workers,
with each partner performing essentially the same tasks regardless of experience or skill level.
At all times relevant to this decision James and Ramos also worked for the Union as field
organizers. They continued to receive wages from the Union at rate 10 percent higher than the 20
contract journeyman wage, along with benefits. James worked for the Union from April 2007
through June 2012. At the time of the hearing, Ramos, still employed by the Union, had served
almost six years.
On or about July 23, 2007, Ramos went on strike. His pay rate at the time was $19 per 25
hour. On or about July 24, 2007, James went on strike. His pay rate at the time was $24 per
hour.
On July 25, 2007, the Union filed unfair labor practice charges against the Respondents
in Cases 36–CA–10145 and 36–CA–10146.30
On September 7, 2007, James and Ramos submitted unconditional offers to return to
work, which the Respondent accepted. James and Ramos returned to work on or about
September 12, 2007. They both went on strike again on September 21, 2007, to protest wages
the Respondent was paying its employees. On or about September 26, 2007, the Union filed 35
additional unfair labor practice charges against Respondent in Case Nos. 36–CA–10178, 36–
CA–10179, 36–CA–10180, 36–CA–10181 and 36–CA–10182, some of which the Union
withdrew on November 5, 2007. A settlement agreement approved on November 6, 2007,
resolved all remaining July charges and the September charges in Case 36–CA–10182.
40
The Respondent replaced James with William Austin (Austin) on October 18, 2007,
during James’ and Ramos’ second strike. (R. Exhs. 3, 4). Aaron Davis (Davis) replaced Ramos
that same day. (R. Exh. 4). James and Ramos had been engaged in economic strikes, and
therefore replacing them was lawful. Austin was subsequently laid off from Dallas Glass and
has not been recalled. Davies still works for Dallas Glass. 45
On November 13, 2007, James and Ramos submitted unconditional offers to return to
work. The Respondent told them their positions were no longer available and they would be
JD(SF)–12–13
4
placed on a preferential hiring list based on seniority for the next available jobs for which they
respectively qualified.
On January 11, 2008, James and Ramos picketed at a number of the Respondent’s
jobsites. On April 23, 2008, they sent letters to the Respondent requesting current guidelines and 5
rules regarding the preferential hiring list on which they had been placed in November 2007. On
May 12, 2008, the Respondent sent a letter to James and Ramos informing them they had been
placed on a preferential hiring list for reinstatement based upon length of service for the next
available job vacancy in their former positions or one that is substantially equivalent. Under the
terms set forth in this letter, James and Ramos did not need to reapply for openings; instead, the 10
Respondent would notify them if their former position or a substantially equivalent position
became available.
In July 2008, James saw Johnston in the parking lot outside his office and asked if the
Respondent was bidding for work. Johnston replied that it was slow, but they were always 15
bidding work.
Ramos and James approached Johnston on October 3, 2008, and James stated he and
Ramos wanted to go back to work. Johnston asked if they still had the same contact information
and stated the Respondent would contact them if there was work available. 20
In early 2009, James saw Johnston outside his office. Johnston told James that from now
on, if he wanted to talk, he would need to schedule a meeting with him.
In May 2009, the Respondent laid off journeyman glazier James Terault, and he has not 25
been replaced. (R. Exh. 5).
In August 2009, Ramos and James saw Davies at Salem Hospital, and they inquired
about work. Davies responded that things were slow, but they had a project coming up. Ramos
stated he wanted to go back to work, and Davies said he would contact him. (Tr. 28–31). Also 30
in August 2009, James and Davies had a discussion in Davies’ office about apprenticeships and
manpower for the Salem mental facility. Davies informed James that Johnston makes all the
business decisions. In mid-September 2009, James met with Johnston and another person at a
Starbucks, and they discussed the Union and prevailing wage rate work.
35
On June 30, 2010, the Region dismissed charges in case 36–CA–10658 alleging that the
Respondent discriminated against James and Ramos by failing to hire them. The Region found
that the Respondent had not hired any employees into positions substantially equivalent to the
positions Ramos and James held, and noted that it had laid off two additional journeyman
glaziers. (R. Exh. 7). The Union appealed, and on August 20, 2010 the Office of the General 40
Counsel upheld the Region’s dismissal of case 36–CA–10658 and partial dismissal of case 36–
CA–10639.3 (R. Exh. 8).

3 Case 36–CA–10639 also involved challenges to the Respondent’s handbook which were found to
have merit. The Region issued a complaint and the parties settled.
JD(SF)–12–13
5
James sent Johnston a letter on October 28, 2010, stating that he would accept any
appropriate return to work offer, and providing supplemental contact information. (GC Exh. 3).
He followed up with a similar letter on November 20, 2010. (GC Ehx. 4).
James spoke with Johnston and Davies on several occasions between July and October 5
2009, and from October 2011 through March 2012, about recognizing the Union and signing an
agreement pursuant to Section 8(f) of the Act. Johnston told James more than once that the
Union did not appeal to him, it had done a lot of bad things to his company, and it was not in his
business plan.
10
On May 14 and 28, June 3, 10, and 17, July 21, 22, 29, and 30, and other dates between
August and September 2010, James and Ramos resumed picketing Respondent’s shop and
construction site locations. They wore signs and neck placards stating “on strike.” On April 20,
2011, the Region dismissed charges that the Respondent failed to hire Ramos and James as of
June or July 2010, finding that they had gone back on strike on the various dates between May 15
and September 2010, and had not thereafter submitted unconditional offers to return to work.4
(GC Exh. 7).
On December 3, 2010, Ramos sent Johnston a letter stating that he was not on strike
despite having picketed the Respondent while wearing an “on-strike” logo. He reiterated his 20
unconditional offer to return to work. (GC Exh. 2). James sent a similar letter the same day.
(GC Exh. 5).
3. The Sandy High School Project and Hiring of Additional Workers
25
In the fall of 2011, the Respondent had a project performing glazing work at Sandy High
School, which was a brand new building with more than 300 storefront windows. Sandy High
School was a prevailing wage rate project. Prior to the time the Respondent started work on the
project, James called Johnston to tell him that Dallas Glass had bid way too low and another
Union contractor had bid significantly higher. Johnston recalled the difference as $400,000; 30
James thought it was closer to $1,000,000. Johnston replied that it was an aggressive bid and the
Respondent needed the work.
Another subcontractor at Sandy High School pulled its workers from the job to finish up
one of its other projects. The contractor asked the Respondent to cover the work, which resulted 35
in Johnston hiring additional labor. He began hiring in September and hired workers with some
experience, but no crew leaders or journeyman glaziers. Two existing commercial journeyman
glaziers, Brian Freeson and Adam Lewis, were assigned to the project. Residential journeyman
glazier Adam Person was moved to the project, as well as some assistant glaziers and laborers.
(R. Exh. 9). 40
Jeffrey Mashos (Mashos) worked as a glazier for Dallas Glass for about a month starting
in November 2011, and again from March to August 2012.5 He applied for the job through

4 The Region did not explicitly find that the 2010 strikes were economic, but the dismissal
characterizes them as a resumption of the prior economic strikes. In any event, resolution of the nature of
the strikes is not material to my findings herein.
5 Mashos left after about a month because of a pre-planned vacation.
JD(SF)–12–13
6
Express Employment Professionals after Johnston, who has been Mashos’ friends for 10 years,
called him and told him he needed some temporary assistance. 6 Mashos worked at Sandy High
School doing various jobs related to glazing, clean-up, and “punch list” items., i.e. things the
customer wanted repaired or replaced. Mashos had no prior experience installing commercial
window systems, but had experience with residential building because he had owned a home-5
building business. He perceived that he had less experience glazing than others with whom he
worked. On April 4, 2012, he became a temporary full-time employee of Dallas Glass and
worked at various jobsites. Mashos held the position of assistant glazier through August. He left
Dallas Glass voluntarily for personal reasons. At the Sandy High School project, Mashos was
paid the prevailing wage rate which, as of April 1, 2012, was $31.83 per hour, plus $15.36 per 10
hour in fringe benefits. For non-prevailing wage rate jobs he started at $14 and was
subsequently raised to $18 per hour. (R. Exhs. 10, 11; GC Exh. 6). His work on other projects
involved tasks similar to the work at Sandy High School. Mashos understood he was hired as a
temporary employee, though the Respondent did not provide a set time for his employment to
end. 15
Samuel Holt (Holt), a friend of Johnston and Mashos, began working for Dallas Glass in
November 2011. He applied through Express Employment Professionals at Johnston’s direction.
He worked at Sandy High School doing essentially the same work as Mashos and had no prior
commercial glazing experience. Holt is a journeyman carpenter and is a member of the 20
Carpenters’ Union. Like Mashos, Holt became a temporary full-time Dallas Glass employee on
April 4, 2012, and worked at various jobsites. He was listed as a project foreman as of April
2012, and was still working for Dallas Glass at the time of the hearing. He testified that he is a
glazier in the Respondent’s commercial division and has never directed any work. At the Sandy
High School project, Holt was paid the prevailing wage rate, which, as of April 1, 2012, was 25
$31.83 per hour, plus $15.36 per hour in fringe benefits. For non-prevailing wage rate jobs, Holt
started at $14 per hour, and at the time of the hearing earned $21 per hour. (R. Exhs. 10, 11; GC
Exh. 6; Tr. 118). His work on other projects was similar to what he did at Sandy High School.
James understood he was hired as a temporary employee, though there is not a set time for his
employment to end. 30
B. Decision and Analysis
1. The Respondent’s Section 10(b) Timeliness Argument
35
I will first address the Respondent’s argument that the charges were not timely filed.
Section 10(b) of the Act requires charges to be filed within six months of the alleged unfair labor
practice(s). The complaint alleges that, since around November 2011, the Respondent has
unlawfully refused to reinstate James and Ramos to their former or substantially equivalent
positions. The Union filed the charge on April 5, 2012. The Respondent asserted its section 40
10(b) affirmative defense in the answer to the Complaint, and I therefore find it was timely
raised. Pub. Serv. Co., 312 NLRB 459, 461 (1993).
The burden to prove an affirmative defense rests with the party asserting it. Chinese Am.
Planning Council, Inc., 307 NLRB 410 (1992). The Respondent argues that the Union knew 45

6 Express Employment Professionals did not have a presence at any of the Respondent’s jobsites and
did not direct any work.
JD(SF)–12–13
7
other employees had been hired for the Sandy High School project and other prevailing wage
rate projects as early as June 2010. This was the subject of a previous claim that the region
dismissed based on and James’ and Ramos’ concurrent strike activity, as detailed above. The
time period relevant to the instant case, however, concerns hiring after James and Ramos
submitted their respective December 3, 2010, unconditional offers to return to work. 5
James testified he had new hire information about the Sandy High School project as of
June 20, 2011, and he provided information about new hires to the Board agent for the week of
September 28, 2011.7 This does not render the charge untimely, however, because the
Respondent did not meet its burden to demonstrate that the Union had “clear and unequivocal 10
notice” that any of these new hires were journeymen glaziers or held a substantially equivalent
position. No light was shed on what specific information James had regarding the Sandy High
School project in June 2011. Likewise, no light was shed on the specifics of the new hire
information James obtained for the week of September 18, 2011, or when James received this
information. In any event, September 18, 2011 is less than 6 months prior to the April 5, 2012 15
charge. Finally, the information regarding the Respondent’s hiring of James and Mashos,
obtained in November 11, 2011, is the basis for a timely charge regardless of what occurred
before.
Accordingly, I find the Respondent failed to prove the charge was untimely, and the 20
complaint is not time-barred under Section 10(b).
2. Employee Status of Alleged Discriminatees
The Respondent, citing Toering Elec. Co., 351 NLRB 225, 229 (2007), further asserts 25
that James and Mashos, “salts” who were employed and paid by the Union at all relevant times,
were not “genuinely interested in seeking to establish an employment relationship with the
employer” and therefore are not protected by the Act.8 Salts generally are considered to be
employees within the meaning of Section 2(3) of the Act. NLRB v. Town & Country Elec., Inc.,
516 U.S. 85 (1995). 9 The Board in Toering Electric held, however, that “submitting applications 30
with no intention of seeking work but rather to generate meritless unfair labor practice charges is
not protected activity.”10 Id. at 231.
Toering Electric arose in the context of an alleged discriminatory failure to hire analyzed
under the framework set forth in FES, 331 NLRB 9 (2000), supplemented by 333 NLRB 66 35
(2001), enfd. 301 F.3d 83 (3d Cir. 2002). Though logically the analysis in Toering seems well

7 In its brief, the Respondent asserts these dates were in 2010, but this is inconsistent with record
testimony and neither party has submitted a motion to correct the transcript.
8 The Respondent did not plead either lack of employee status or unlawfulness of the strikes in its
answer. During opening statements at the hearing, however, counsel for the Respondent clearly raised
and argued these defenses, and I therefore find they have not been waived. See Strand Theatre of
Shreveport Corp., 346 NLRB 523, 539 (2006), enfd. 493 F.3d 515 (5th Cir. 2007).
9 The Respondent also cites to WBAI Pacifica Found., 328 NLRB 1273, 1275 (1999), where the
Board held that unpaid volunteers are not employees. In light of Town and Country, however, reliance on
WBAI is misplaced.
10 In In re W.D.D.W., 335 NLRB 260 (2001), the Board, reversing the administrative law judge, found
that the Union’s salting activities, partially aimed at tying the Respondents up in costly litigation, did not
deprive the salts of employee status under a “disabling conflict” defense.
JD(SF)–12–13
8
suited to cases involving alleged discriminatory failure to recall and reinstate from a preferential
hiring list, I could find no Board caselaw extending it beyond a FES failure to hire scenario. The
focus in Toering is on the definition of “applicant” which does not precisely characterize James
and Ramos. For this reason, and because, in my view, the genuineness of the alleged
discriminatees’ interest in working for the Respondent ties into the legitimacy of the strikes they 5
engaged in, I will address it in my analysis of the strikes directly below.
3. Protection of the Strike Activity
In turn, the Respondent argues that James’ and Mashos’ strike activity was not protected 10
by the Act, and they therefore had no preferential hiring rights upon submitting unconditional
offers to return to work. I find merit to this argument.
It is well established that employees may not be discharged or otherwise discriminated
against for engaging in protected concerted work stoppages to protest working conditions. See 15
NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). The scope of protected activity,
however, is not unlimited. The Board has held that employees who participate in certain
intermittent work stoppages are not protected. Pac. Tel. & Tel. Co., 107 NLRB 1547, 1548
(1954)(multiple “hit and run” stoppages intended to “harass the company into a state of
confusion” not protected). The Respondent has the burden of showing a strike is unprotected. 20
See, e.g., Silver State Disposal Serv. 326 NLRB 84, 85 (1998).
In Farley Candy Co., 300 NLRB 849, 849 (1990), the Board characterized an intermittent
strike as “a plan to strike, return to work, and strike again.” A single sequence of events where
employees strike, return to work, then change their minds and resume striking would not 25
generally violate the Act. Instead, the Board and Courts of Appeals have referred to “repeated”
or “recurrent or intermittent” refusals to work when describing statutorily-unprotected
intermittent strikes. See, e.g., Graphic Arts Local 13-B (Western Pub. Co.), 252 NLRB 936, 938
(1980); NLRB v. Robertson Industries, 560 F.2d 396, 398 (9th Cir. 1976); Roseville Dodge, Inc.
v. NLRB, 882 F.2d 1355 (8th Cir. 1989). A work stoppage becomes an intermittent strike when 30
“the stoppage is part of a plan or pattern of intermittent action which is inconsistent with a
genuine strike or genuine performance by employees of the work normally expected of them by
the employer.” Polytech, Inc., 195 N.L.R.B. 695, 696 (1972).
The Board has not articulated a rigid framework for analyzing whether a series of strikes 35
constitute unlawful intermittent strikes. Instead, it has looked at a number of factors including:
frequency and timing, whether the strikes were part of a common plan, whether there was Union
involvement, whether the strikes were intended to harass the employer into a state of chaos,
whether the strikes were for distinct acts of the employer, and whether the alleged discriminatees
intended to “reap the benefits of strike action without assuming the vulnerabilities of a forthright 40
and continuous strike. . . .” See Westpak Elec., Inc. 321 NLRB 1322, 1360 (1996) and cases cited
therein; Swope Ridge Geriatric Ctr., 350 NLRB 64 (2007); Blades Mfg. Corp., 144 NLRB 561,
566 (1963), enforcement denied, 344 F.2d 998 (8th Cir. 1965); See also Haas & Lockwood, The
Elusive Law of Intermittent Strikes, 14 Lab. Law. 9, at 102. A common element of these factors
is the strikers’ intent. 45
To begin with, I note there is not even a suggestion that James and Ramos attempted to
organize the Respondent’s employees prior to their first strike, which occurred less than two
JD(SF)–12–13
9
months after James began work and less than a month after Ramos began work. Nor is there
evidence of organizing attempts between Ramos’ and James’ return to work and their second
strike 9 days later. After they were permanently replaced, Ramos and James engaged in a series
of recurring strikes from May to September 2010. Throughout this time, there was no attempt at
“traditional, lawful organizing activity.” M.J. Mech. Serv., 324 NLRB 812 (1997); 11 Toering, 5
supra at 230 (“Although some salts, paid or unpaid, may genuinely desire to work for a
nonunion employer and to proselytize coworkers on behalf of a union, other salts clearly have no
such interest.”). In M.J. Mechanical, the Board noted that even if salting is intended to in part to
provoke unfair labor practices, this would not deprive the employees of the Act’s protection. It
found, however, that the evidence failed to show the Union’s salting activities, which included 10
organizing employees, were “a subterfuge used to further any purpose unrelated to organizing.”12
324 NLRB at 814. By contrast, there is no evidence of an organizing campaign in the instant
case. Likewise, there is no evidence that James and Ramos were seeking to redress employee
complaints (other than their own) about wages or working conditions, as the record is devoid of
evidence that other employees took issue with the wages or other working conditions at any 15
point. U.S. Serv. Indus., 315 NLRB 285 (1994)(strikes protected where no evidence they were
for “any purpose other than to protest and seek redress for what employees considered to be
unjust working conditions”).
The only explicitly stated reason for taking action, asserted in connection with the 20
second strike, was to protest employee wages. Nothing changed with regard to employee wages
from 2007 to the time of the hearing. (R. Exhs. 5, 8). The recurrent strikes in the interim,
therefore, were not even ostensibly in response to discrete employer actions. I find this case
similar to Swope Ridge, supra, where there Union announced and implemented two work
stoppages in a short period in furtherance of contract demands during an ongoing bargaining 25
dispute. The Board found that “because the bargaining dispute continued with no evident
changed purpose, there was a reasonable basis for finding that the pattern would continue.” Id.
at fn. 3. The same rationale applies here; the Respondent’s wages did not change, and there is no
reason to believe the alleged discriminatees’ pattern of conduct of intermittent work stoppages
until they achieved their goal of union recognition and/or area standards pay and benefits. The 30
absence of discrete employment factors and, relatedly, evidence that the strikes were part of a
plan by the Union, weigh against protection.
Finally, there is evidence the strikes were calculated actions aimed at harassing the
Respondent. It is clear James’ and Ramos’ tactics were not geared to “harass the company into a 35
state of confusion” as in Pacific Telephone & Telegraph or the ilk of cases involving mass “slow
downs” “sit-ins” or partial strikes. See, e.g., Elec. Data Sys. Corp., 331 NLRB 343 (2000);
Phelps Dodge Copper Prods. Corp., 101 NLRB 360 (1952). They acted together yet alone,

11 The administrative law judge in M.J. Mechanical had relied on Godsell Contracting, Inc., 320
NLRB 871 (1996), which the Board summarily affirmed. The administrative law judge’s analysis on this
point stated, “To the extent that it might be inferred that one of the purposes of the ‘salting’ program was
to provoke nonunion employers to commit unfair labor practices, I conclude that even if true, it would not
be a defense to Respondent's conduct.” Id. at 874.
12 Member Higgins, concurring with the Board’s conclusions on the lawfulness of the alleged
discriminatees’ activities, found there was no evidence of a design to provoke unfair labor practice
charges. He declined to pass on whether activities designed in part to provoke an unfair labor practice are
protected by Section 7 of the Act.
JD(SF)–12–13
10
apparently without the support other employees.13 This begs the question of their true intent.
Their actions of picketing with “on strike” signs and placards on numerous occasions between
March and August 2010, while claiming they were available for work and the Respondent’s
refusal to hire them was unlawful, provides useful insight in this regard. Such antagonistic
simultaneous actions, by seasoned Union employees, lead me to conclude that the charges filed 5
during this time were disingenuous, and were aimed solely at harassing the Respondent. This
distinguishes the instant case from M.J. Mechanical, where the Board found “nothing in the
record to support a finding that the ‘salting’ . . . was a subterfuge used to further any purpose
unrelated to organizing.”14 Though the method employed here was different and was geared
toward a different direct impact on the Respondent than in Pacific Telephone, the common and 10
compelling factor is that the alleged discriminatees intended neither to work for the Respondent
nor to persist with a legitimate strike. Pacific Tel. & Tel.. 107 NLRB at 1549 (Union’s intent
was “to bring about a condition that was neither strike nor work”).
Based on the foregoing, I find the alleged discriminatees engaged in unprotected 15
intermittent strikes. As such, they were not entitled to reinstatement to their prior positions or
substantially equivalent positions.15
CONCLUSIONS OF LAW
20
The Respondent’s actions of failing to reinstate the alleged discriminatees into their
former positions or substantially equivalent positions did not violate Section 8(a)(1) and (3) of
the Act.
Accordingly, based on the foregoing findings of fact and conclusions of law and the 25
entire stipulated record, I issue the following recommended 16

13 According to a March 31, 2011 Advice Memorandum in reference to cases 36-CA-10639 and 36-
CA-10704, they were joined by non-employee, Union-paid organizers. Though the advice memo is not
part of the record, the Board may take administrative notice of it. Farmer Bros. Co., 303 NLRB 638 fn. 1
(1991).
14 Another difference is the conduct at issue in M.J. Mechanical was the strikers’ attempt to provoke
unfair labor practices, whereas here it is filing unfair labor practice charges disingenuously.
15 Though there was testimony that James and Ramos inquired about work, there is no allegation that
any application for employment, outside of the context of reinstatement to their former positions or a
substantially equivalent position following the strikes, was rejected.
To the extent a reviewing authority disagrees with my evaluation of the strikes and/or finds the
defense was not adequately pled, I find Holt’s position, upon being hired directly by Dallas Glass in April
2012, was substantially equivalent to the alleged discriminatees’ based on his rate of pay, his testimony
that he worked as a glazier, and the Respondents’ classification of him as a foreman despite the fact he
did not direct work. I do not find Mashos’ position was substantially equivalent, as he was classified as
an assistant glazier, his pay consistent with that classification, and his work was intermittent. Witness
credibility does not factor into these findings.
16 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)–12–13
11
ORDER
The complaint is dismissed.
5
Dated, Washington, D.C., February 26, 2013.
__________________________10
Eleanor Laws
Administrative Law Judge