K-Air Corporation

National Labor Relations Board - Administrative Judge Opinions

May 30, 2013

16-CA-091326 (N.L.R.B. May. 30, 2013)

JD(NY)–23-13
San Antonio, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
K-AIR CORPORATION
and Case No. 16-CA-91326
SHEET METAL WORKERS LOCAL # 67, a/w SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION
Roberto Perez, Esq. and Jonathon Elifson, Esq., Counsel for the General Counsel.
Melissa Fletcher, Esq., Goode, Casseb, Jones, Riklin, Choate & Watson, Counsel for the
Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me in San
Antonio, Texas on April 8, 2013. The Amended Complaint herein, which issued on March 26,
2013 and was based upon a charge and an amended charge that were filed on October 15,
20121 and December 6 by Sheet Metal Workers Local # 67, affiliated with Sheet Metal Workers
International Association, herein called the Union, alleges that on about September 24, K-Air
Corporation, herein called the Respondent, by Kyle Villarreal, its president, interrogated
employees about their Union activities and coerced and threatened them with unspecified
reprisals because of their Union activities, and on about September 25 discharged John Vega
because of his Union and protected concerted activities, in violation of Section 8(a)(1)(3) of the
Act. In addition to denying the substantive allegations of the Complaint, Respondent defends
that Vega was an independent contractor and not an employee within the meaning of the Act.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act, and that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. The Facts
This hearing involves the discharge of Vega after three days of employment with the
Respondent. Vega is a journeyman sheet metal worker who has been a member of the Union
since 1996. However, between January 2001 to November he was not a member in good
standing because he moved from San Antonio, where the Union is located, to Houston, where
he was under the jurisdiction of a different local union, until returning to San Antonio. Prior to
working for the Respondent, he was employed by Swisher, another HVAC employer for about
three days, performing sheet metal work. Justin Reeder, a friend, who was working for the
Respondent, told Vega about the job, and said that he should call Villarreal and he gave him his

1 Unless indicated otherwise, all dates referred to herein relate to the year 2012.
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telephone number. Vega called the number and when Villarreal didn’t answer, he left a
message with his name, telephone number and work experience, saying that he knew Reeder
and was looking for work and that he was told that the Respondent had a job at an LA Fitness
location. Villarreal returned his call about fifteen minutes later and Vega told him of his work
experience and that he had just finished working at another LA Fitness job, and Villarreal
agreed to interview him. They met at a small mall located at a nearby gas station and Villarreal
told him that his company was growing from residential to light commercial work and that he
was looking for people to staff his jobs and to work as foremen. Vega told him of his experience
and Villarreal said that he would hire him to start at $17 an hour. Vega said that he was earning
$18 at the other LA Fitness job and Villarreal said that he would see how he worked out for a
couple of weeks and that they would talk about it again at that time. Villarreal asked if he could
start the next day, Saturday, September 22, and Vega said that he could, and he told Vega to
report for work at 7:00. Villarreal testified that at the conclusion of the interview, he did not tell
Vega what time he had to be at the LA Fitness jobsite, herein called the jobsite, the following
day. Rather he told him that the other employees normally arrived at 6:30 or 7:00.
A. Garcia and Villarreal
Gilbert Garcia, an organizer for the Union, testified that on August 16 he went to the
jobsite, as he does for all job sites that he is aware of, in order to obtain work for Union
members. He met with the project superintendent for the general contractor and asked who was
performing the HVAC work at the site, and he was told that it was the Respondent. Garcia
asked if the boss was on site and he was told that he wasn’t, and he left his business card with
the project superintendent, who said that he would give the card to the owner of the HVAC
company, and Garcia left the jobsite. About two days later Villarreal called Garcia’s telephone
number and left a voice mail, asking what, if anything, Garcia wanted. Garcia was out of town at
the time, and called him back when he returned two weeks later. Garcia identified himself and
asked Villarreal if he needed any manpower for the job and he answered that he didn’t have
time at that moment to speak. Garcia asked if they could meet, and Villarreal said that he was
going out of town. Garcia asked if they could meet when he returned, and Villarreal said that he
was going to be gone for a while. Garcia asked him to call him when he returned, but Villarreal
never returned the call. On the following day, Garcia went to the jobsite “…to see if I could get
ahold of him before he left for out of town,” but one of the employees said that he had just left.
Villarreal testified that the project superintendent gave him Garcia’s card, which
identified him as being employed by the Union, and he called Garcia and left a voicemail for
him: “I called to hire a couple of the Union members, workers in sheet metal…I wanted to work
with them. I wanted to hire them. I wanted to bid things with them. Unfortunate that it worked out
this way, but I have a very pro union [sic].” When Garcia called him back, he no longer needed
any additional employees, and since then he has not called the Union because he has lost jobs
and didn’t have any commercial work.
B. Vega’s Employment With Respondent
Vega reported for work at 7:00 the next morning (September 22) wearing a hard hat and
a safety vest, both of which had the name of a unionized HVAC company, Brandt Engineering,
herein called Brandt, which is located in San Antonio and Dallas. He testified that he wore these
items because he had been out of work for so long that he didn’t have these items, so he
borrowed them from his brother who works for Brandt and had an extra hard hat and vest.
Villarreal testified that on Saturday, September 22, Vega was wearing a hard hat without an
insignia. Vega met with Villarreal, who introduced him to the other employees and told them
what work needed to be focused on, where they needed to be and what they needed to do.
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Vega was instructed to work in the pool area, where he spent most of the day working with the
sheet metal vents and the aluminum duct work. Villarreal was away most of the day and Vega
did not see him again until the end of the workday. At that time, he asked Vega if he knew
anything about an altercation involving Reeder at Swisher that Reeder had filed a Board charge
about. Vega told him that he didn’t know anything about it as he had left Swisher’s employ
before it had occurred. Villarreal told Vega that, “…he didn’t want that to happen to his
company, whatever it was happening over there” and then asked Vega to fill out a time card,
which he did, and returned it to Villarreal, who told him that he did a great job that day and told
him to report for work Monday morning.
Villarreal testified that he arrived at the jobsite at about 11:00 that day and remained
there for about an hour observing the work being performed at the site. As to what work Vega
was supposed to perform that day, he testified: “He was supposed to know what he needs to do
as an independent contractor. I told him that anything needs to get fixed and repaired, let me
know and make advices [sic] and install duct work.” He also went over the work prints with him
and told him what needed to be done. He returned to the jobsite at about 3:00 and asked Vega
if he was able to find any problems. At the end of that day, Vega and two other employees at
the jobsite filled out an “Employee Timecard,” actually, a piece of paper, stating that he arrived
for work at 7 a.m. and left at 3:30. Villarreal testified that he believes that he told Vega to fill out
the timesheet.
Vega next reported for work on Monday, September 24 at 7:00, again wearing a Brandt
hat and vest. At 6:30 he received a call from Reeder saying that start time was 6:30; Vega said
that since start time on Saturday was 7:00, he thought that was the usual start time. Because he
had the prints for the job, he said that he would be there shortly, as he lived around the corner
from the jobsite. When he arrived, he apologized to Villarreal, who told him not to worry about it,
but from then on, to be at work at 6:30. He testified that another mechanic employed by the
Respondent, “Albert,” said that he recognized him as a union member from another job, and
Vega asked him not to say anything to Villarreal about it. Later, he saw Roger Trinidad, a Union
member who began working for the Respondent on September 20, and became the foreman a
few days later, was also wearing a Brandt hard hat. At the end of the day, as he was preparing
to leave, Villarreal stopped him and said that he noticed the Brandt name on his hard hat and
asked if it was a union company. Vega said that it was, but that the hat belonged to his brother
and since he had been out of work, he borrowed the hat from his brother. Villarreal then asked
him if he was union and he said that he wasn’t; he had been a Union member, but he had been
out of work and he was no longer in good standing. Villarreal asked him again if he was union,
and he told him, again, that he was in the union, but not in good standing, and that he was there
just to make a living. Villarreal said that he would buy him a new hard hat2, Vega said that was
fine, filled out the time sheet for the day, and left.
Villarreal was questioned by Counsel for the General Counsel regarding a brief
conversation that he had with some employees (including Vega) at the jobsite about unions.
The questions were asked while Villarreal had his affidavit given to the Board in order to refresh
his recollection. Counsel for the General Counsel began by asking if he overheard employees
talking about the Union, at that time, pointing out the portion of the affidavit referred to; Villarreal
initially answered: “No, I don’t believe so.” When asked if he overheard employees discussing
the Union, he answered: “I don’t recall if they did, but if they did…I believe I asked them a few
questions.” With some prompting he testified that he overheard Vega saying that he was not in

2 In an affidavit given to the Board, Villarreal stated that he “…was sort of ticked because I
did not want to see another company’s logo on my job.”
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the Union and one of the other employees saying that union members make $35.90 an hour.
Villarreal then asked, “Do union people make that much?” and, “Are you in the Union?” Vega
then said, “You can’t really talk about that” and Villarreal said that some jobs pay more than
$35.90 an hour, and concluded the conversation by saying, “Why are we talking. Let’s get back
to work.”
Reeder testified that on a Monday in September (which he mistakenly identified as
September 22), while in the parking lot in front of the building, Villarreal again asked him about
his unfair labor practice charge against Swisher and also asked him if he was a member of the
Union and Reeder said that he wasn’t a Union member. Villarreal said that he had no interest in
having Union members on the job and Reeder said that he didn’t know who were members of
the Union as he had only recently moved to the area. Villarreal asked if Brandt is a union
company, and Reeder answered that he believed that it was. Villarreal asked him if he had
recommended union employees, and if Vega, George and Albert were members of the Union.
He answered that Vega had previously been in the Union, but his union was out of a different
local and he didn’t believe that he was an active member, and that he didn’t know the other
employees, Albert and George.
Sometime that day, Monday, Villarreal pointed out some work in the pool area, about
twenty five feet from where Vega was working, that had been performed improperly in that it had
been assembled with galvanized steel rather than aluminum. Villarreal asked him who did the
installation, and he said that he didn’t know as it was installed before he started working in the
area, but Vega agreed that it was installed improperly. Villarreal was asked by Counsel for the
General Counsel seven times wasn’t it true that he knew that Vega did not do the improper
installation, as stated in the affidavit that he gave to the Board, but he refused to admit it,
answering that he wasn’t there when the installation was performed (five times) and that
Counsel for the General Counsel should ask Trinidad who performed the installation. Villarreal
testified that he asked Trinidad that day about the improper duct work, and that Trinidad,
“…wasn’t clear on it.”
Vega reported for work on Tuesday September 25 at 6:30 again wearing his Brandt hard
hat and vest. He testified that Trinidad, the foreman that day, told him to work in the pool area
and replace a metal drive that was improperly installed on an aluminum duct. Later, Villarreal
approached them yelling, “What is this shit? You are supposed to be looking out for K-Air. This
isn’t the kind of work we do.” Vega told him that he didn’t do the work involved and Villarreal told
Trinidad that since he is the foreman, he is responsible for the work, and the next time it
happened, he would be fired along with the employee who did the work. Vega then got on the
lift to replace the metal drive with an aluminum drive, which took about thirty to forty five
minutes. After completing that job, he worked with Trinidad for some time. Shortly before lunch,
Trinidad walked away, and when he returned he asked Vega, “Did Kyle ask you if you are
union?” Vega said that he did, and Trinidad said that he asked him as well, and Vega told
Trinidad that he told Villarreal that although he was a member of the Union, he was not in good
standing because he had moved. This conversation ended at lunch time, and Villarreal took the
employees to lunch that day telling them that he was looking for a good crew of employees so
that he could expand his business from residential to commercial. At about 1:45, Trinidad told
him of a “unistrut” that was holding a plenium in the dressing room at the jobsite that had to be
repaired. It was installed incorrectly, wasn’t fastened to the building and there was a real danger
of it falling and killing somebody, and Vega was told to fasten it and repair it. Because it had
been improperly done, and he thought that Villarreal would want to see it, he recorded it on his
cell phone. He had to locate baling wire to hold it temporarily until it could be permanently
repaired and he worked on it until the end of the day when Trinidad told him to come down.
Vega told him that he had not completed the job, and Trinidad told him that it didn’t matter;
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Villarreal wanted him and was distributing the pay checks: “The day’s over, there’s no overtime.”
He went to the gangbox and Villarreal told him to complete an Employment Application, which
he did, and to fill out a W-9 Form. Vega told him that he didn’t know what that was as he had
never done one before, but Villarreal insisted so he completed that form as well. Villarreal asked
if he could get him another hard hat, and Vega said that he didn’t have a problem with that, he
filled out his time sheet and left.
Reeder testified that he was working on the roof of the jobsite when he saw that the
unistrut needed to be repaired, as quickly as possible, because of the danger that it entailed,
and Vega was assigned to repair it, although he did not install it; it was installed before they got
there. He also testified that Vega was discharged at about Noon on Tuesday, September 25,
while he was at a hospital with an employee who had been injured. Trinidad testified that when
he arrived for work on Tuesday, September 25, Vega was not there, and he asked Villarreal
where Vega was and he told him that he didn’t have the money and couldn’t afford to pay him
and that he told Vega “to stay home.” Trinidad asked why, and Villarreal said, “You want to get
paid, right? Well I have to have enough money to pay all of you.” Trinidad worked part of that
day, September 25, but felt uncomfortable with the idea that there might not be enough money
to pay him, so he told Villarreal that he was quitting with “no hard feelings” and Villarreal gave
him the amount that was owed him. Trinidad also testified that Reeder, who was working on the
roof of the jobsite on Monday, September 24, told him that the duct was not properly fastened,
and at about 2:00, Trinidad told Vega to fix the hangers on the duct because they were
incapable of holding it, and Vega began to repair it. At 3:30, Trinidad told him to come down: “I
told him, hey, there’s no overtime on this job. Let it go, we’ll get it tomorrow, because it was
already repaired…” He felt that the job had been completed to his satisfaction, and that there
was no longer any danger because of it. They all left for the day, and Villarreal never asked him
about the strut.
Villarreal testified that he did not speak to Vega before he left work on the afternoon of
Tuesday, September 25, but he called him after seeing the struts that Vega had been working
on prior to leaving for the day: “to me, that’s not…good quality work, plus safety hazard, plus
just horrible job that can be very dangerous to people.” In the call, he asked Vega if he had
worked on that job and he said that he had. Villarreal asked if he finished repairing it, and he
said no, and when Villarreal asked him, “Why is that?” Vega answered, “That’s the best I can
do.” Villarreal testified that this response was very disappointing and he was hoping that Vega
would offer a good excuse so that he would not have to let him go, but Vega was “nonchalant”
about it and because Vega’s work wasn’t up to his standard, he told him that he doesn’t have
extra money to pay for mistakes and he again asked Vega to “give me a good reason,” and
again he said that’s the best he could do, and he discharged him. On the following day, Frankie
Sanchez, a helper, repaired this dangerous situation; he testified that it took Sanchez about an
hour and a half to correct the problems.
Sanchez was employed by the Respondent for about two or three months beginning in
about September. He was not at work on Vega’s final day of employment for the Respondent,
but on the following day Trinidad directed him to repair the strut that Vega had worked on that
day; it took him about an hour to complete the repairs. George Subirias, who was employed by
the Respondent for about three or four weeks beginning in about early September3 testified that
while employed there, he told Villarreal that the work that Vega and Reeder performed showed
that they were not as experienced as they claimed to be. He observed the strut in question and

3 He mistakenly testified that Vega was employed there when he began and was still there
after he left the Respondent’s employ.
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testified that it was very precarious: “And I didn’t see how anybody claiming to be a mechanic
would do something like that. It was just an accident waiting to happen, in my opinion.” On the
morning after Vega’s discharge, Trinidad asked Subirias to repair it, and while examining it,
other employees told him that Vega had performed the work on the struts.
Vega testified that shortly after leaving work on September 25 he received a call from
Villarreal asking if he had installed the unistrut involved herein and he said that he hadn’t, but
that he had a video of it that he could show him. He told him that although he didn’t install it, he
temporarily fixed it, although it needed to be welded. Villarreal told him that he didn’t have
money to pay him, and Vega told him that he needed the job and could wait two or three weeks
to get paid, but Villarreal refused to relent. Vega returned to the jobsite the next day picked up
his tools and while there he met a former co-worker, George Duarte, who told him that Villarreal
had hired him and another worker that day. On cross examination, Vega was asked by counsel
for the Respondent whether he told Villarreal, “That’s the best I can do” in his telephone
conversation with him on the afternoon of September 25, and he answered: “Yes.” On redirect,
Counsel for the General Counsel asked him what he meant by that statement, and he testified:
To repair it, that was the best of my ability with the material that I had. That was the best
that I can fix it to where it needed attention tomorrow. It needed to be welded. That’s all I
can do temporarily. That was the best I can do temporary, and I was wrapping it with
baling wire to secure that stud from shifting…so it wouldn’t fall until somebody can get in
there with a welder and weld it.
In answer to a question from me, he testified that the statement that he made to Villarreal was:
“That’s the best I can do at the moment.”
C. Independent Contractor Status
As stated above, in addition to defending that Vega was discharged because of poor
work performance, Respondent defends that he was an independent contractor rather than an
employee within the meaning of the Act. As he only worked for the Respondent for three days,
there is a limited amount of evidence on this subject. Vega testified that when he was hired
Villarreal told him that he would be earning $17 an hour and, when Vega told him that he was
earning $18 an hour at his prior job, Villarreal said that after a couple of weeks employment he
would see how his work was, and they would discuss a pay raise and possibly his becoming a
foreman after that. There was no discussion of his being an independent contractor. He was told
to be at the jobsite at 7:00 the next morning. He filled out an undated Employment Application
and on September 22, he filled out an “Employee Timecard,” actually a sheet of paper, along
with two other employees, stating that he worked from 7:00 to 3:30, and he was paid in cash for
that day. He also filled out a timecard for September 24 and 25, and was paid by check for
these two days, and on September 25, he completed a W-9 form at Villarreal’s request,
although he did not know what it was and had never previously filled out such a form. He
testified that Villarreal told him that it was for tax purposes for Villarreal. Vega does not operate
his own business, or carry his own insurance, and Villarreal chose the order of the work that
was to be performed, the hours worked and the time for lunch. Vega incurred no work
expenses, and brought his own hand tools to the job, while the Respondent provided the power
tools. Reeder also testified that he provided his own hand tools for the job, was directed by
Villarreal as to what work, as well as the order of work, to perform, and what hours to work, and
he could not employ a substitute for himself, and he did not incur any expenses on the job, other
than the cost of fuel driving to work. On September 20, about a week after Reeder began his
employ with the Respondent, he completed a W-9 form, and on October 5, he entered into an
Agreement with Villarreal, at Villarreal’s request, for a different job, providing that he would be
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paid $60 per grill installed for twenty grills, for a total of $1,200, with $840 of that to be kept by
Reeder, and the remaining $360 to be paid to his helper on the job.
Villarreal’s testimony is not as clear because he did not answer questions directly,
especially while being questioned by Counsel for the General Counsel. He often answered
questions that were not asked by providing answers that he considered favorable to his case,
often by adding the words “independent contractor.” For example, Counsel for the General
Counsel subpoenaed Respondent’s records seeking all employees of the Respondent
employed at the jobsite; Vega’s name was not included. Counsel for the General Counsel
asked:
Q So it was a mistake to leave him off the list? He was employed there. You don’t
dispute that, I presume. Is that correct?
A He was…worked for me for three days as independent contractor.
Counsel for the General Counsel asked Villarreal if it were true that he employed both
employees and independent contractors at the jobsite, and he testified: “I tell all my
subcontractors and my employees that the first two weeks is a probation trial, and three month
probation period for any kind of work they do.” He also testified: “There’s occasions that I hire
employees as employees, and there’s occasions that independent contractors, they’re good at
what they do, and I wish to hire them as W-2, and I do so. It just depends on what we agree on.”
When Counsel for the General Counsel asked Villarreal to explain why he did not supply time
sheets pursuant to the subpoena request, he testified: “I do have time sheets for employees, but
I do not have necessary time sheet for the independent contracts, due to they have idea of
amount of work they need to do, and I don’t necessarily keep up with too much of independent
contractors.” He also testified that the IRS W-9 form is the form that he employs for independent
contractor agreements. The subcontract for the jobsite was the largest job that he had
performed, and it was the first time that he utilized independent contractors to perform work for
his company.
Later, on redirect examination, Counsel for the General Counsel asked him if it were true
that W-2 employees sign confidentiality agreements and employment agreement while
independent contractors do not, and Villarreal agreed with that statement, but when Counsel for
the General Counsel showed him subpoenaed documents for Christopher Morales, whom
Villarreal had listed as an independent contractor, specifically a W-9 form and an Employment
Agreement both dated September 24, it took six additional questions before he answered that
question, and even then, he attempted to explain more than was asked of him. Subiarias, whom
Respondent indicated was an independent contractor, testified that he filled out time sheets, but
did not fill out a W-2, W-9, or an employment agreement with the Respondent; he gave Villarreal
his driver’s license and insurance.
III. Analysis
Credibility obviously, plays an important part in this case. Counsel for the General
Counsel alleges that Vega was discharged on September 25 because of his Union membership,
while counsel for the Respondent defends that he was discharged because of his poor work
quality and his statement to Villarreal: “That’s the best that I can do.” In order of credibility, I
found Villarreal to clearly be the least credible of the witnesses at the hearing. As recited above,
it often required Counsel for the General Counsel to repeat a question numerous times before
he would answer a question directly, even while in possession of his affidavit which clearly set
forth the answer. He would rarely admit to anything that he felt could harm his case without
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being forced to do so. While one can understand that events that occurred more than six
months ago are, at times, difficult to remember, it appeared to me that his memory was
selective and that he often feigned difficulty remembering only certain facts. On the other hand, I
found Vega to be a credible witness, who appeared to be testifying to the facts as he best
remembered them. For example, in answer to a question from counsel for the Respondent, he
admitted that he told Villarreal, “That’s the best that I can do” while later explaining what he
meant in answer to a question from Counsel for the General Counsel. Trinidad and Reeder also
appeared to be credible witnesses although they had the date of Vega’s discharge confused.
Trinidad testified that Vega was discharged on Monday, September 24, because when he
arrived for work on the following day, Villarreal told him that he had been discharged the prior
day and Reeder testified that Vega was discharged at about noon on Tuesday, September 25,
while he was away from the jobsite. Regardless of their confusion about the date of the
discharge, I find that there were attempting to testify in an honest and truthful manner
regardless of their confusion with dates. Sanchez and Subiarias also appeared to be credible
and believable witnesses.
Counsel for the Respondent, in her Answer, alleged that Vega was an independent
contractor and not an employee within the meaning of the Act. A party asserting independent
contractor status has the burden of proof of establishing that status so that the employee is
excluded from the protection of Section 2(3) of the Act. BKN, Inc., 333 NLRB 143, 144 (2001).
In determining independent contractor status under Section 2(3) of the Act, the Board applies
the common law agency test and considers all the elements of the employee’s relationship with
his employer and no one factor is controlling. Roadway Package System, Inc., 326 NLRB 842,
850 (1998). It is not necessary herein to examine these factors as the Respondent has
presented no credible evidence that Vega was an independent contractor. Vega was told what
hours and days to work, what work to perform, and was paid by the hour. Although he brought
some of his own hand tools, the Respondent supplied the power tool and he filled out an
Employment Application and time sheets for the three days that he was employed by the
Respondent. The only evidence of independent contractor status was that on September 25,
Vega was told to complete a W-9 form, even though he did not know what it was. I therefore
find, with no difficulty, that Vega was an employee within the meaning of the Act while employed
by the Respondent.
It is initially alleged that Respondent, on about September 24, interrogated employees
about their union membership, activities and sympathies, and those of their fellow employees,
and coerced and threatened them with unspecified reprisals because of their union affiliations.
The credited testimony of Vega and Reeder establishes that on about September 24, Villarreal
interrogated them as to whether they were Union members and asked Reeder if Vega, George
and Albert were Union members. It requires no case citation to establish that such a question
initiated by a boss to an employee, without any lawful justification, violates Section 8(a)(1) of the
Act. On the other hand, I find that Villarreal’s statements to Vega regarding Reeder’s unfair
labor practice charge against Swisher: “I don’t want that to happen here,” is more a reference to
unfair labor practice charges, rather than Union membership, and does not violate the Act. As
there is no evidence to support the Complaint allegation that the Respondent coerced and
threatened employees with unspecified reprisals because of their Union activities, I recommend
that this allegation be dismissed.
The final allegation is that the Respondent discharged Vega on September 25 because
of his Union and protected concerted activities, in violation of Section 8(a)(1)(3) of the Act, and
this allegation is to be judged under the standards set forth in Wright Line, 251 NLRB 1083
(1980). Under this test, the initial issue is whether Counsel for the General Counsel has made a
prima facie showing sufficient to support the inference that protected conduct was a “motivating
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factor” in the Respondent’s decision to terminate Vega. If that has been established, the burden
then shifts to the Respondent to establish that it would have terminated him even in the absence
of his protected conduct. I find that Counsel for the General Counsel has sustained his initial
burden herein. Villarreal overheard Vega discussing union wages with other employees, he
asked Vega if Brandt was a union company, and he asked him on a number of occasions
whether he was a Union member; Vega told him that he was, but was not a member in good
standing. In addition, Villarreal told Reeder that he had no interest in having Union members on
the job and asked him if he had recommended union employees to his job; he obviously was
referring to Vega, whom Reeder had initially told about the job. Finally, the credible evidence
establishes that Vega did not install the unistrut in question, and had begun to repair it when the
workday ended on September 25, when he was told by Trinidad to quit for the day. While
blaming Vega for the situation, Villarreal never asked Trinidad about the strut even though he
would have told him that Vega had been working to repair it when the workday ended.
I also find that the Respondent has not sustained its burden of establishing that Vega
would have been terminated absent his protected conduct. I do not credit Villarreal’s testimony
that he was pro-union, and wanted to hire Union workers and work with the Union. The only
evidence of that was that he called Garcia shortly after being given his card by the project
superintendent at the jobsite. Although Garcia was remiss in not returning his call for about two
weeks, Villarreal was clearly not being honest when he told Garcia that he couldn’t meet with
him because he was going out of town, and would be out of town for a while. At the time, he
was the sole individual supervising the jobsite and the evidence establishes that he was at the
jobsite on a daily basis. As there was no other credible testimony to establish that Vega would
have been discharged absent his protected conduct, I find that the Respondent violated Section
8(a)(1)(3) of the Act by discharging him on September 25.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union 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 interrogating employees about
their Union membership and the Union membership of fellow employees.
4. The Respondent violated Section 8(a)(1)(3) of the Act by discharging John Vega on
September 25, 2012.
5. The Respondent did not violate the Act as further alleged in the Amended Complaint.
The Remedy
The Respondent having discriminatorily discharged Vega, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of a proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other
grounds sub.nom., Jackson Hospital Corp. v. NLRB,, 647 F. 3d 1137 (D.C. Cir. 2011). I shall
also order the Respondent to file a special report with the Social Security Administration
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allocating Vega’s backpay to the appropriate calendar quarters and to compensate him for any
adverse income tax consequences of receiving his backpay in one lump sum. Having found that
the Respondent also engaged in unlawful interrogation, in violation of Section 8(a)(1) of the Act,
I recommend that it be ordered to cease and desist therefrom, and to post the attached Notice
to this effect.
Upon the foregoing findings of fact, conclusions of law and on the entire record, I hereby
issue the following recommended4
ORDER
The Respondent, K-Air Corporation, its officers, agents, successors and assigns, shall:
1. Cease and desist from
(a) Interrogating employees regarding their membership in, and those of their fellow
employees, in Sheet Metal Workers Local #67, a/w Sheet Metal Workers International
Association, the Union, or any other labor organization.
(b). Discharging or otherwise discriminating against its employees because of their
activities on behalf of the Union, or any other labor organization.
(c) In any like or related manner interfering with, restraining or coercing its employees in
the exercise of their rights as guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Offer John Vega full and immediate 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 and privileges previously enjoyed, and make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him in the manner set forth in the
remedy section of this decision.
(b) File a special report with the Social Security Administration allocating Vega’s
backpay to the appropriate calendar quarters and compensate him for any adverse income tax
consequences of receiving his backpay in one lump sum, as prescribed in Latino Express, Inc.,
359 NLRB No. 44 (2012).
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Vega, 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.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel

4 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.
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records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in San Antonio, Texas
copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by
the Regional Director for Region 16, 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
September 24, 2012.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. May 30, 2013
_________________________________
Joel P. Biblowitz
Administrative Law Judge

5 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–23-13

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 question you about your membership, as well as that of other employees, in Sheet Metal
Workers Local # 67, a/w Sheet Metal Workers International Association (“the Union”), or any other union.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the Union, or any
other union and WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act
WE WILL offer John Vega immediate and full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges
previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting
from his discharge, together with interest.
WE WILL within 14 days from the date of this Order, remove from our files any reference to the discharge
of Vega, and WE WILL, within 3 days thereafter, notify him that this has been done and that the
discharge will not be used against him in any way.
K-AIR CORPORATION
(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.
819 Taylor Street, Room 8A24
Fort Worth, Texas 76102-6178
Hours: 8:15 a.m. to 4:45 p.m.
817-978-2921
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, 817-978-2925.