FieldWorks, LLC

National Labor Relations Board - Administrative Judge Opinions

Jun 9, 2015

19-CA-135042 (N.L.R.B. Jun. 9, 2015)

JD(NY)–26-15
Portland, OR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FIELDWORKS, LLC
and Case No. 19-CA-135042
MATTHEW MARINO, An Individual
Lisa Dunn, Esq., Counsel for the General Counsel.
Joseph Sandler, Esq. and Jessica Krupke, Esq., Sandler, Reiff, Lamb, Rosenstein &
Birkenstock, PC, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on April 21
and April 22, 2015 in Portland, Oregon. The Complaint herein, which issued on November 18,
20141 and was amended on April 6, 2015, was based upon an unfair labor practice charge and
a first and second amended charge filed on August 19, September 5 and November 7 by
Matthew Marino. The Complaint alleges that on about August 16 the Respondent threatened
employees that they would be blacklisted because of their union and protected activities and, on
various dates between August 10 and 18, it assigned Marino to work locations other than the
locations he had customarily been assigned to, and on August 18, discharged him due to his
union and protected concerted activities, in violation of Section 8(a)(1)&(3) of the Act.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that it has been an employer within the meaning of
Section 2(2), (6) and (7) of the Act, and that United Campaign Workers, affiliated with Industrial
Workers of the World, herein called the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
II. The Facts
Respondent’s employees are engaged in gathering signatures on petitions, registering
voters, canvassing door to door, and requesting that individuals support a particular candidate,
ballot initiative or cause. They are assigned to work at specific locations of the city in which they
are employed to approach members of the public, or to knock on doors for this purpose. The
employees are classified as canvassers and team leaders; both classifications perform,
basically, the same work except that canvassers who are promoted to team leaders train and
otherwise assist the canvassers. The employees carry a cell phone type of device which logs
their activity, as well as their location. When they register a voter, they click the button on the
device which reports the transactions to a computer at the Respondent’s headquarters.
Likewise, when a canvasser knocks on a door to speak to the resident, he/she hits the same
button, which also records the transactions on the Respondent’s computer. This device enables

1 Unless indicated otherwise, all dates referred to herein relate to the year 2014.
JD(NY)–26-15
the Respondent to track the canvasser’s location, as well as the number of interactions that the
canvasser had with the public, and the time of these interactions. On the basis of the
information received from this device, the computer prints up a report for each canvasser for
each day, including the first and last interaction, the number of gaps of ten minutes or more
(between clicks), fifteen minutes or more, forty five minutes or more, and the longest period
between gaps, presumably, when employees were not properly involved in their work.
Marino began his employment with the Respondent in May as a canvasser in Portland
and was promoted to a team leader two weeks later. He was employed there in that position
until he was fired on August 18. He testified that in early June he was given a campaign flyer for
the Union and beginning at that time, he spoke to fellow workers about the Union. Sometime in
July, a fellow employee, Eric Fletcher, came into Respondent’s office wearing an IWW pin and
and told him about the Union and about a meeting that the Union was holding on July 23. About
ten to twelve individuals attended the meeting, but Marino and Fletcher were the only
employees of the Respondent present; the others were employed by similar companies in the
area. At this meeting, Marino spoke to a lead organizer who recommended some strategy to
employ in an organizing campaign. After the meeting Marino approached fellow employees who
he felt might be interested in the Union; because of the high turnover of employees, he spoke
mainly to team leaders and employees who had been employed by the Respondent for a long
time. The next Union meeting took place on August 4 and about seven of Respondent’s
employees attended. All of the Respondent’s employees who attended this meeting signed
authorization cards for the Union at the meeting. They discussed strategy and tactics that they
would employ, contract demands, as well as a list of Respondent’s employees and which ones
to speak to, and which ones should not be spoken to. He, together with fellow employees Chris
Humbird and Daniel Keesler became the leaders in the organizing drive and they were assigned
employees whom they should speak to. In addition, he testified that at the Union meetings,
some of the employees referred to the organization drive as “Matt’s thing;” none of the other
witnesses at the hearing remembered this title. He testified that in early August he spoke to
Anthony Dimezza, at the time a team leader, about the Union and “he was very interested and
enthusiastic about getting involved,” because he felt that the industry standards were very low.
Barrett Ross, who began his employment with the Respondent in August as a canvasser
became an officer of the Union in June while employed by CRRH, which is engaged in a similar
business as the Respondent. When he worked for the Respondent in August, he wore T-shirts
and buttons with the Union’s name to work and spoke to other employees about how the Union
could improve their working conditions. In addition, he attended the Union meetings on August
4, 21 and 25 where they discussed ways to organize more of the employees and how they
could improve their working conditions. Jordan McClure was employed by the Respondent from
May to November and was also involved in the Union’s attempt to organize the Respondent’s
employees. He attended the Union meetings in August where they discussed their conditions of
employment and the best way to organize the Respondent’s employees.
Christopher Gallaway, a co-owner of the Respondent, testified that sometime in the
Summer of 2014 he heard that a competitor was being organized by a union, but before that
could be accomplished, that company went out of business. The first time that he knew that the
Union was attempting to organize his employees was on September 17, when “an organizing
committee stormed into our office” with a list of demands as well as thirteen to fifteen Union
authorization cards. The three listed demands were to comply with all applicable laws, including
Portland’s paid sick leave ordinance, stop retaliating against its employees, and to set up a
meeting with the Union within seventy two hours to discuss terms and conditions of
employment. Subsequently the parties had one in-person meeting, as well as a conference call
discussion, but no agreement was reached by the time the Respondent’s work in Portland
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
3
concluded, and all employees were let go.
Thomas Browne was employed by the Respondent as an office director in the Portland
office and in about May he became state-wide director for the State of Oregon. He testified that
in about June he was shown a Union flyer stating that the Union “wanted to organize campaign
workers;” even though it did not mention the Respondent, he forwarded the flyer to the
Respondent’s principals. In addition, in early August Lisa Kent, a team leader, told him that
there was a Union meeting about organizing the Respondent’s employees in Portland. Kent did
not mention any employees by name, and he was not aware of which employees participated in
the Union’s organizing drive.
In about early to mid- August, Marino, McClure and Ross met with Dimezza in a bar in
Portland. Because Dimezza was an experienced team leader, they wanted to get him involved
in the Union campaign. When Marino tried to explain the advantages of the Union, Dimezza
made it clear to them that he was not interested in supporting the Union. Dimezza testified that
in response to Marino’s request that he join in the effort to organize the Respondent’s
employees, he told them that because of the nature of the industry, it would be more
appropriate to have all the employers in the industry covered, so that no matter which company
he was employed by, he would be covered. Marino was dismissive about his argument, and the
discussion ended. Dimezza became the deputy director of the Portland office, and a supervisor
within the meaning of the Act, on August 15.
It is initially alleged that on about August 16 Dimezza threatened employees that they
would be blacklisted because of their Union and concerted activities. Marino testified that on
that day, Dimezza, who had been promoted on the prior day, came to see him at his work site
(“turf”). Marino told him that he was surprised at the assignment he was given that day and
Dimezza told him to just stay at the site that was assigned to him and Marino said that he often
floats around to different locations to check on some of the canvassers. He was then asked:
Q And did Mr. Dimezza have any other comments during this exchange?
A Yes.
Q What did he say?
A He remarked about the Union.
Q and what did he say about the Union?
A He said that it’s a small community here in Portland, and if you fuck over one
company, you’ll be blacklisted.
He testified that when he returned to the office that afternoon he reported that he had a
“pretty good day,” having obtained twenty signatures and Bruce said, “Well, your numbers are
sagging.” He asked if it was because he did not make the quota of twenty one and she said that
it wasn’t about the quota, and he told her that it was against the law in Oregon to enforce a
quota: “she started freaking out and completely, like, ended the subject.” On the following day,
when he returned, Bruce asked him, “What’s happening with your numbers? Your numbers are
sagging. If this continues we’re going to have to let you go.” He explained that his numbers were
lower than usual because of a derailment on the train that day. She also said that there were
gaps in his button pushing, including a forty five minute gap.
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
4
Dimezza testified that August 15 was his first day as deputy director and he went to do
site checks to see what the canvassers were doing. Before leaving, Jessica Crompton, the other
deputy director, told him that Marino had an attitude problem. He went to Marino’s work site and
found him wandering around without talking to anybody:
I basically told him to just play the game. Stay in your spot, talk to everyone, just do your
job…Everyone kind of knows each other in the canvassing world here. And it was kind of
a reminder that you can get a reputation by your actions. By not working, by kind of
screwing around, by having a bad attitude. If you look for another job in this city as a
canvasser that could potentially be harmful to you in getting employment with someone
else.
Marino did not respond and Dimezza did not discuss the Union or organizing of the canvassers.
He never used the word “blacklist” in this discussion.
Marino had difficulty answering questions directly, especially during cross examination.
For example, while being questioned by counsel for the Respondent about sick leave:
Q Did you at any time during your work for Fieldworks in Portland in 2014, qualify for
sick leave under the Portland sick leave law?
A Yes.
Q You did? And when was that?
A The whole time I was working there I should have been. After a certain date when-
that you begin accruing sick time. That’s my understanding of the law.
Q But…you’re only entitled to take the sick time if you or a particular class of relatives
are sick, right?
A Oh yeah. Yes, absolutely.
Q And did that happen to you while you were employed by Fieldworks in Portland?
A They are supposed to put it on your check. You earn the time. And there was nothing
indicated on the check.
Q Okay, but…was there any point in time where you entitled [sic] to sick leave---paid
sick leave days that weren’t given to you?
A According to the law, yes.
Q But…you weren’t entitled to take the sick leave because you were never sick nor was
any relative covered by the law, right?
A Oh yeah. Yeah, I never actually requested the time.
It is next alleged that between August 10 and August 18, Marino was assigned to
work at locations other than the locations where he had customarily been assigned to work and
that this change in assignments was due to his Union and protected concerted activities. Marino
testified that at an after work team leader meeting on August 9, he told Browne that it wasn’t fair
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
5
that team leaders were subject to the same “quota” as canvassers because team leaders had
other duties as well, such as training new employees. At the time they were performing voter
registrations and the quota, or standard, was twenty one registrations per day. Marino cannot
recall Browne’s response, but testified that Browne changed the subject immediately. Marino
raised his hand with another question, but Browne did not recognize him and closed the
meeting. He approached Browne at his desk and asked why employees were not receiving sick
time pursuant to the law in Portland, and Browne responded that its employees were not eligible
because they were temporary employees. Marino asked, “How am I temporary? I’ve been
working full-time for almost four months.” He then asked Browne why the team leaders were not
paid overtime when they worked over eight hours a day including attending team leader
meetings, and Browne said that in Oregon you have to work in excess of fourteen hours to
receive overtime pay. Marino testified that at the conclusion of that conversation, Browne told
him that from now on he would be working on the MAX Light Rail Train. Browne testified that
Marino asked him about sick leave on about August 9, but that he does not remember telling
Marino that from then on he would be working on the MAX light rail line.
Respondent’s Portland office covers the City of Portland as well as some suburban
areas. The canvassers and team leaders receive their work assignments on a daily basis after
indicating the days that they are available to work. Respondent’s business records state that on
August 12 and August 16 Marino worked at Pioneer Square, on August 14 he worked at the Bus
Mall Downtown, August 15, the Blue Line Max and August 18 at the Gresham Transit Center.
Marino did not work on August 10 or 13, at his request, and the record contains no work record
for him for August 17, although he testified that he did work that day at the Blue MAX line. The
Respondent’s records state that from May 15 through August 9, Marino was assigned to
Pioneer Square on three days, the Bus Mall Downtown on four days, and had not previously
been assigned to the Blue Line Max or the Gresham Transit Center, and that during this period,
he was assigned to almost twenty five different locations, the most being at Hawthorne where
he was stationed eleven times. Marino testified that on August 112, he was assigned to
Gresham Transit Center, which he considered a bad location, and he went to speak to Browne
about it, and Browne told him that from then on everybody will get the work location that they
want.
Marino testified about what he considered the best and worst locations for assignment.
The best were the downtown locations, such as Hawthorne, because there were a lot of people
there. The worst locations were the suburban areas such as Gresham, because there are fewer
people and they tended to be more conservative. He did not like the MAX train lines because
they were confining and he liked to walk around and he has informed Browne that is the reason
he does not like the MAX train line. Other canvassers, such as Jeff Henderson and Drew Rosa
like the MAX line and are successful at soliciting signatures at those locations.
Gallaway testified that the company generally assigns the best canvasser to the best site
and tries to match the right person to the right area. However, they avoid assigning one person
to the same site repeatedly for a number of reasons, primarily because they would see some of
the same people every day, which encourages fraud because, absent seeing new people, the
canvasser might request that a person who previously signed, do so again. Bruce testified that
the Respondent was obligated under their contract with Our Oregon to collect a certain number
of voter registration cards from the suburban areas and Gresham was one of those areas and
the Gresham Transit Center “…out of the suburban sites was one of the best sites we had.”

2 Respondent’s business records indicate that Marino worked on August 11, but do not
specify a location.
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
6
Marino was assigned to that location because, “the thought is you put somebody who’s good at
collecting voter registration cards at a slightly slower spot, and they’re still going to do better
than somebody who’s poor at collecting voter registration cards.” Dimezza testified that although
he did not assign the canvassers to work sites, he has worked on the Blue Line and considers it
one of the best work sites, and he has worked at the Gresham Transit Center and would not
consider it a bad work location. As far as whether a location is a good or bad location, “it
depends on the canvasser.” If he/she approaches it properly, it will be a good work site: “As far
as good sites, we have a goal to meet for our clients. We wouldn’t send anyone anywhere that’s
not a good site.” Browne testified that in making assignments to the canvassers, “…the driving
thing is the best people at the best sites.” He does not recall telling Marino, or any other
employee, that they would get the sites that they wanted. At the time Jessica Crompton was
making the assignments and although Marino worked the downtown area a lot, they wanted
fewer people downtown so they assigned him to the Blue Line and the Gresham Transit Center,
both of which are good work sites. One reason that they assigned Marino to the Blue Line was
that although he was a good canvasser, “he had a tendency to wander a bit,” and being on the
Blue Line would curtail his wandering. Neither assignment was meant as punishment for his
Union activity.
Marino was terminated on August 18. While at the Gresham Transit Center that day he
only secured fifteen signatures, below his usual production and the Respondent’s “quota” of
twenty one. When he returned, he met with Bruce and Dimezza for the end of the day review.
Bruce “expressed concern” about his numbers and he responded that he did really well for the
site. He testified: “I was beginning to get very upset.” After this discussion, Bruce asked him to
build a crew box, which contains all the items that a canvasser needs to perform the job.
Although he had previously built crew boxes, it was not a regular part of his job as a team
leader. Bruce testified that it was not unusual to ask team leaders to make up crew boxes,
especially if they return to the office prior to 7:00, the end of the shift: “If team leaders don’t
make crew boxes, the directors make the crew boxes.” While he was doing that, Bruce
approached him and said that he looked upset, and he said that he was upset because his job
had been threatened by Dimezza, who threatened him that he would be on a blacklist because
of his Union organizing and Dimezza denied making that statement. Bruce said that he had a
hostile attitude and she “started freaking out,” and she asked him and Dimezza to come into the
office to talk. Bruce resumed the discussion by saying that he was an excellent canvasser who
always met and exceeded their goals, and that he trained people and was respected in the
office, but he had a hostile attitude. He responded that his attitude was caused by the fact that
Bruce had alienated the staff and that the high turnover rate of employees was caused by the
way management treated the employees: “…and that I felt like we didn’t need the Fieldworks
management to do this job, that we could do a better job ourselves.” He then said that he was
being fired because he was organizing a union, and Bruce said, “Oh no, go ahead, start a
union.” Marino then said, “No, you can’t say that after you’ve intimidated me and threatened me
with a blacklist.” He then told Bruce that she was alienating the staff and she responded, “I’m
doing the best that I can.” He ended the conversation by saying, “I think you’re doing a terrible
job” and she replied that he “was gone.” He walked out of the office and when Dimezza walked
out of the office, Marino called him a rat and a low piece of shit. Marino was questioned on
cross examination about three employees who became leaders of the Union campaign after he
was fired and he testified that none of them were either fired or were given undesirable work
assignments.
Respondent’s business records state that Marino was terminated on August 18 for a
“poor attitude.” Respondent’s business record entitled Canvasser Time Stamp Review, which
records the information from the cell phones that each canvasser uses to record all activity,
states that on August 15 Marino had four forty five minute periods (“Gaps”) during which he did
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
7
not press the red button and, presumably, had no transactions. After receiving that report, Bruce
discussed Marino, as well as other employees with Dimezza, Crompton and Browne. The
discussion about Marino was about his poor attitude, for example his lack of participation in the
office training sessions, as well as his “body language” when asked to do such things as making
crew boxes, although there was no talk of terminating him. They agreed that because of his
poor attitude, they would try to avoid having him train new employees (“Day Ones”). She spoke
to Marino when he returned to the office on August 18. She told him about the forty five minute
gaps in the August 15 report and gaps on other days as well, and that they were trying to
reduce these gaps among all of the employees. She testified that the conversation “quickly
escalated to where I felt like he was very angry, talking very loudly…” As best as she could
recollect, he responded that he couldn’t believe that she would question his numbers. Because
she felt the discussion was escalating, she moved it to a side office with just herself, Dimezza
and Marino. She told him, “You’re good at your job, and I would like to keep you around as a
team leader, but the attitude problem has got to stop.” Marino answered that it was all about the
Union, and she told him, “No it’s not. Nobody cares about your union” and that the company is
pro-union and that unions are a major source of their income. Marino then said that Dimezza
threatened that he would be blacklisted because of his Union activities, which she said that she
didn’t know about, and she told him that his negative attitude was the real problem and that she
feels disrespected when she asks him to do something. Marino then said that he had no respect
for her or Browne, and had no respect for any of the partners at the company. Bruce then said
that she was sorry, but she would not be able to keep him on staff. Bruce testified that she
discharged three other employees for a poor attitude, one on about the same day as Marino; to
her knowledge, none of them were involved in the Union campaign.
Dimezza testified that when Marino returned to the office on that day, Bruce said
something to him about a problem with his work, he got upset and left the area for a few
minutes. When he returned, he began screaming at Bruce and Dimezza, saying that Dimezza
threatened to blacklist him, and that Bruce was rude, horrible and didn’t know what was going
on. Bruce had them go into an office with her, and it escalated; Marino was irate and said that
the workplace and the directors were horrible and that they had no idea what they were doing.
At that point, Bruce told him that he was fired.
III. Analysis
I found Browne and Bruce the most credible witnesses; they each answered the
questions in a direct and concise manner and, when they were not certain of the answers, they
said so. Marino and Gallaway were totally different witnesses. They went on and on and
answered the question that they wanted to answer, rather than the question that was asked.
Although they were not incredible witnesses, their testimony had to be examined carefully to
separate the truth from the propaganda. For example, a good portion of Gallaway’s testimony
was intended to establish that Respondent would not discharge employees due to their union
activity because its business comes principally from unions and liberal organizations. While that
has some relevance, his testimony was infused with that theory. Marino’s testimony was often
oversimplified and exaggerated; often, when he was speaking to management that person
“freaked out.” In addition, in what appears to be a contradiction, he testified that after he
questioned Browne about sick leave and other issues on August 9, and unsuccessfully
attempted to question him further, Browne responded that from then on he would be working the
Light Rail Line. Yet, two days later, when he complained to Browne about being assigned to the
Gresham Transit Center he testified that Browne told him that from then on everybody will get
the work location that they want.
As Dimezza denies threatening Marino with being blacklisted, I must credit either
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
8
Dimezza or Marino. Although I found Dimezza to be a reasonably credible witness, I credit
Marino’s version of the August 16 discussion because it is more reasonable and believable.
Marino testified that he told Dimezza that he floats around to check on the canvassers, and that
Dimezza told him to stay at the site that he was assigned, and said that it was a small
community and that “if you fuck over one company you’ll be blacklisted.” Dimezza testified that
he told him to stay at his spot and “just play the game” because everybody knows each other in
the area. I find Marino’s version more likely because I find it unlikely that future employers in the
area would learn that Marino “floated” around his area, rather than staying in one spot, while it is
more likely that if they learned that he was active in organizing the Respondent’s employees it
could affect his future employment. As I credit Marino’s testimony about this August 16
discussion, I find that it violates Section 8(a)(1) of the Act. Blake, Moffitt & Towne, 214 NLRB
859 (1974), cited by Counsel for the General Counsel, is right on point.
The next allegation is that on certain days between August 10 and 18, the Respondent
assigned Marino to work locations where he had not customarily worked, due to his Union and
protected concerted activities, in violation of Section 8(a)(1)&(3) of the Act. The Respondent’s
business records, which I credit, establish that on August 12 and 16 he worked at Pioneer
Square, where he had worked on three days prior to August 10, on August 14 he worked at the
Bus Mall Downtown, where he had previously worked on four occasions, and the Blue Line
Downtown on August 15 and the Gresham Transit Center on August 18, where he had never
previously worked. Marino agrees with this record that he did not work on August 10 and 13, at
his request, but testified that he worked at the Gresham Transit Center on August 11, and at the
Blue Line on August 17, although there is no record of the latter on the Respondent’s business
records. Regardless of whether Respondent’s business record or Marino’s testimony is correct,
there were two to four days during this period that he was assigned to a location that he had
never previously worked at.
The issues of Marino’s change in assignments and discharge is to be judged under the
standards of Wright Line, 251 NLRB 1083 (1980). Under this test, Counsel for the General
Counsel must initially make a prima facie showing sufficient to support the inference that
Marino’s protected conduct was a “motivating factor” in the Respondent’s decision to assign him
to new locations and to subsequently discharge him. If that has been established, the burden
then shifts to the Respondent to establish that it would have taken these actions regardless of
his protected conduct. I agree with Counsel for the General Counsel’s argument that Marino
was engaged in protected concerted activities under the standard set forth in Meyers Industries,
281 NLRB 882 (1986). On August 9, he questioned Browne about team leader responsibilities,
sick leave and overtime pay. Although he was the only one questioning Browne about these
subjects, they clearly related to the terms and conditions of employment of the Respondent’s
employees and therefore constitutes protected concerted activities. As the alleged unlawful
assignments occurred on the following day, I find that Counsel for the General Counsel has
sustained her initial burden under Wright Line, supra. However, I also find that the Respondent
has sustained its burden of establishing that it would have engaged in this action regardless of
Marino’s activities. As the record indicates that as he worked at Pioneer Square and the Bus
Mall Downtown (where he had previously worked) on August 12, August 16, and August 14, the
alleged discrimination occurred on August 15 and, possibly August 17 with assignments to the
Blue Line, and August 18 to and possibly August 11 to Gresham Transit Center. However,
although Marino did not subjectively like the Blue Line or the Gresham Transit Center
assignments, the evidence establishes that others did, and did well at these locations,
particularly the Blue Line. Further, in the ten week period prior to August 10, Marino was
employed at approximately twenty five different work locations. I therefore find that these
assignments did not constitute a form of discrimination and that there is no credible evidence
connecting the assignments during this period to his protected conduct and recommend that this
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
9
allegation be dismissed.
The final allegation is that Marino was discharged on August 18 because of his Union
and protected concerted activities. As Browne was aware of his protected concerted activities
on August 9, and as Dimezza, who was aware of his Union activities, became a supervisor
within the meaning of the Act on August 15, I find that Counsel for the General Counsel has
sustained her initial Wright Line burden. However, I find that the Respondent has satisfied its
burden of establishing that Marino would have been discharged regardless of his protected
conduct. The evidence establishes that in July and August, Fletcher and Ross came to the
Respondent’s office wearing either a Union button or T-Shirt, without incident, and there is no
evidence to establish that either Browne or Bruce were aware of Marino’s Union activities at the
time of his discharge or that the Respondent had union animus. Further, I found Bruce to be a
credible witness and I credit her testimony that when she spoke to him on August 18, she
intended to discuss the problems that they had with him, rather than discharging him. However,
when she started discussing the gaps in his August 15 performance, the conversation “quickly
escalated” with Marino raising his voice and saying that he couldn’t believe how she could
question his performance. When she told him that he was good at what he did, but had an
attitude problem, he responded that it was all because of his Union activities, which she denied,
and said that nobody cared about the Union and that the company was prounion. When she
said that she felt disrespected by him, he said that he had no respect for her, Browne, or
anybody else at the company. At that point, she told him that he was discharged. Counsel for
the General counsel argues in her brief that Marino’s statements during this meeting were within
the parameters of Atlantic Steel, 245 NLRB 814(1979) and therefore the discharge violated the
Act. However, Atlantic Steel only applies when an outburst, or other strong language, occurs in
the midst of the employee’s protected concerted activities, Plaza Auto Center, Inc., 355 NLRB
No. 85, p. 2 (2010), and there were no protected concerted activities engaged in, or discussed
at this August 18 meeting. The discussion was only about Marino’s work deficiencies, not the
conditions of employment of all the employees, and the evidence establishes that it was his
outburst at this meeting, rather than his Union or protected concerted activities, that caused his
discharge. I therefore recommend that this allegation be dismissed.
Conclusions of Law
1. Fieldworks, LLC has been an employer within the meaning of Section 2(2), (6) and (7)
of the Act.
2. United Campaign Workers, affiliated with International Workers of the World, has
been a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by threatening employees with
blacklisting because of their union and protected concerted activities.
4. The Respondent did not violate the Act as further alleged in the Complaint.
The Remedy
Having found that the Respondent has threatened an employee with blacklisting
because of his union and protected concerted activity, I recommend that it be ordered to cease
and desist therefrom and to post a notice to its employees in that regard.
JD–(NY) –26–15
5
10
15
20
25
30
35
40
45
50
10
Upon the foregoing findings of fact, conclusions of law and based upon the entire record,
I hereby issue the following recommended3
ORDER
The Respondent, Fieldworks, LLC, its officers, agents, successors and assigns, shall
1. Cease and desist from threatening employees with blacklisting due to their union and
protected concerted activities, or in any like or related manner, interfere with, restrain or coerce
employees in the exercise of their rights protected by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
(a) Within 14 days after service by the Region, post at its facility in Portland, Oregon or,
if the Respondent does not have an office in Portland, Oregon, at its office closest in proximity
to Portland, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 19, 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. 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
at any time since August 16, 2015.
(b) 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 be dismissed insofar as it alleges
violations not specifically found.
Dated, Washington, D.C. June 9, 2015
______________________________
Joel P. Biblowitz
Administrative Law Judge

3 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.
4 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(NY)–26-15
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 threaten our employees with blacklisting in retaliation for their union or protected
concerted activities.
FIELDWORKS, LLC
(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.
915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-135042 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
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, 206-220-6284.