Meadow Valley Contractors, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 2000

331 N.L.R.B. 800 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
Meadow Valley Contractors, Inc. and International
Union of Operating Engineers, Local 12, AFL–
CIO. Cases 28–CA–15527–3, 28–CA–15726, and
28–CA–15775
July 19, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On March 8, 2000, Administrative Law Judge Jay R.
Pollack issued the attached decision. The General Coun-
sel and Charging Party filed exceptions and supporting
briefs. The Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

Nathan N. Albright and Benjamin Green, Esq., for the General
Counsel.
Gregory E. Smith, Esq. (Smith & Kotchka) of Las Vegas, Ne-
vada, for the Respondent.
David P. Koppelman, Esq., of Pasadena, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Las Vegas, Nevada, on September 30 and Octo-
ber 1, 1999. On December 18, 1998, International Union of
Operating Engineers, Local 12, AFL–CIO (the Union) filed the
original charge in Case 28–CA–15527–3 alleging that Meadow
Valley Contractors, Inc. (the Respondent) committed certain
violations of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act). The charge was amended on February
11 and March 17, 1999. The Union filed the charge in Case
28–CA–15726 on March 18, 1999. The original charge in Case
28–CA–15775 was filed by the Union on April 19, 1999. The
Union amended its charge on May 6, 1999. On March 25,
1999, the Regional Director for Region 28 of the National La-
bor Relations Board issued a complaint and notice of hearing
against the Respondent in Case 28–CA–15527–3 alleging that
the Respondent violated Section 8(a)(1) and (3) of the Act. On
June 25, the Acting Regional Director issued a consolidated
amended complaint in all three cases. The Respondent filed
timely answers to the complaints denying all wrongdoing.

1 The General Counsel and Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses,1 and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a Nevada corporation with an office and prin-
cipal place of business in Phoenix, Arizona, where it has been
engaged in heavy highway construction in Arizona, Nevada and
New Mexico. During the 12 months prior to issuance of the
complaint, Respondent purchased and received, in Nevada,
goods and services valued in excess of $50,000 from suppliers
located outside the State of Nevada. Thus, I find that Respon-
dent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The Respondent is a general contractor for highway con-
struction in Arizona, Nevada, New Mexico, and Utah. This
case concerns a job called the Beltway section 4 project in
Henderson, Nevada (Beltway 4). The Beltway 4 job is a pre-
vailing wage job. The wage determination is based on wages
paid to union employees under local collective-bargaining
agreements. The project manager for Respondent at the Belt-
way 4 project is Jae Johnson. In connection with this project,
Respondent leased dirt crew equipment from a company called
AnA Enterprises and hired certain AnA supervisors, including
Jeff Anderson and Jay Simons to supervise dirt work on Belt-
way 4. Anderson became a superintendent of the dirt removal
crew and Simons became a foreman.
Michael Riisinger was hired by Simons for Respondent in
August 1998. Simons hired Robert Irvine and Leonard Rollins
in September 1998. In October 1998, Irvine was assigned to
drive a water truck on the dirt removal crew. The General
Counsel contends that Irvine was assigned this lower paying
job because of his union activities and further that Irvine re-
signed in December 1998, because of this unlawfully motivated
assignment.
Rollins was reassigned to drive a rock truck, a lower paying
assignment, in November 1998. Again the General Counsel
alleges that this assignment was based on Rollins’ union activi-
ties. Further, the General Counsel contends that this assign-
ment caused Rollins to resign his employment on January 8,
1999.
Riisager was laid off in April 1999. The General Counsel
contends that Riisager was selected for layoff because of his
union activities. Further, the General Counsel contends that
1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962).
As to those witnesses testifying in contradiction to the findings herein,
their testimony has been discredited, either as having been in conflict
with credited documentary or testimonial evidence or because it was in
and of itself incredible and unworthy of belief.
331 NLRB No. 96
MEADOW VALLEY CONTRACTORS 801
Respondent did not recall Riisager from layoff because of Riis-
ager’s union activities.
B. Facts
In August 1998, Jay Simons hired Michael Riisager to work
on the Beltway 4 project. Riisager had previously worked for
Simons on AnA jobs. Simons considered Riisager a good em-
ployee and a friend. Riisager was assigned to work as a bull-
dozer operator.
Robert Irvine learned of the Beltway 4 job from Riisager.
Simons hired Irvine at the end of September 1998, and assigned
him to a bulldozer. On October 20, the bulldozer that Irvine
was operating broke down. On October 21, Irvine was as-
signed to drive the water truck, a lower paying job.
Leonard Rollins was hired by Simons at the end of Septem-
ber 1998. Rollins was assigned to drive a truck but requested
that he be assigned to operate equipment. Until November 18,
1998, Rollins worked as a heavy equipment operator and grade
checker but also drove a rock truck more than one third of his
time on the job. On November 18, Rollins was permanently
assigned to drive a rock truck. Rollins continued to drive a
rock truck until he quit Respondent’s employ on January 8,
1999.
The General Counsel offered evidence to show that Respon-
dent knew of Irvine’s union activities prior to his assignment to
the water truck. Beginning with his hire, Irvine brought a
lunchbox bearing a union insignia to work everyday. Also,
during the period of September 28 to October 19, 1998, Irvine
wore a baseball cap with a union insignia. Beginning October
19, Irvine believed that the Union had sent Respondent a letter
designating Irvine as a union organizer. Thereafter, Irvine wore
a union T-shirt almost every day. He also wore union pins on
his baseball cap and a union sticker on his hard hat. However,
the Union did not send the letter designating Irvine as a union
organizer until November 9. Respondent received this letter on
November 13.
Rollins testified that on or about October 20, Simons ob-
served Irvine’s lunchbox. Rollins claimed that Simons shook
his head in a dissatisfied manner. On October 20, Irvine’s bull-
dozer broke down and Simons sent Irvine home. The next day,
Irvine was assigned to the water truck. Irvine performed this
task well and continued on the water truck. In late November,
Irvine was assigned to a larger water truck. Irvine testified that
when supervisors gave him instructions they were close enough
to observe his lunchbox and hat.2
The General Counsel contends that Respondent revealed its
antiunion sentiment at a meeting held in November 1998. Re-
spondent held a meeting for all Beltway 4 employees concern-
ing the Union. After the meeting, Irvine said to Simons,
“there’s always two sides to every story.” Simons told Irvine
that the Union had been bad for him. Simons said the “Union
could go straight to hell” as far as he was concerned. Irvine
answered that he was on the Union B list and that the Union
had been good for him. Simons replied that the Union hadn’t
done any good for him.
On November 9, the Union sent letters to Respondent nam-
ing Irvine and Rollins as “inside organizers.” Respondent re-
ceived the letter regarding Irvine on November 13 and the letter
regarding Rollins on November 16, 1998. On November 16,

2 Riisager testified that he overheard Simons state that he had ob-
served the stickers on Irvine’s lunchbox. For the reasons stated below,
I do not credit Riisager’s testimony.
Rollins was working with a grade checker named Kelly Woods.
Woods testified that on November 16, Simons asked Woods
whether Rollins had talked to Woods about the Union. Accord-
ing to Woods, he answered that Rollins had not talked about the
Union and Simons replied that Rollins had better not. Woods
returned to work and told Rollins about the conversation.
Simons denied this conversation. I credit Simons’ testimony.
Woods also testified that in late November, Simons told him
about the letters naming Irvine and Rollins as union organizers.
According to Woods, Simons stated that an $8-per-hour cut in
pay would make things hard and force the employees to quit.
Simons denied ever talking to Woods about these letters. Fur-
ther, employee Heath Schlutter, the only other witness to this
conversation, testified that he never heard Simons make such
remarks. I note that, Irvine had been on the water truck since
October and Rollins had been on the rock truck since Novem-
ber 18. I do not credit Woods’ testimony. Rather I credit the
testimony of Simons and Schlutter that Simons did not question
Woods about the letters.
In mid-November, Simons approached Riisager while Riis-
ager was working on a bulldozer. Simons asked Riisager
whether the Union paid people to organize. Riisager answered
that he believed the Union paid its organizers. In his testimony,
Simons admitted that he probably asked Riisager whether union
organizers were paid. However, he denied saying anything
about reassigning anyone to a lower paying job. I credit
Simons’ testimony. Riisager’s false testimony about Respon-
dent’s Christmas party, set forth below, casts serious doubt on
his other testimony.
On or about November 24, Irvine had a conversation with
Anderson in which Irvine questioned why he was driving a
water truck instead of operating a bulldozer. Irvine told Ander-
son about his job experience. Anderson said he would speak
with Simons. The next day, Irvine asked whether Anderson
had spoken to Simons. Anderson reported that Simons wanted
Irvine to drive the water truck because Irvine was doing a good
job.
Riisager testified that at Respondent’s Christmas party he
overheard Anderson say to Simons “it looks like that rock truck
thing worked.” Riisager unequivocally stated that he was sit-
ting next to Simons when Anderson entered and made the al-
leged statement. I do not credit Riisager on this point. Simons
was not at the Christmas party. There was only one Christmas
party and at the time of that party, Simons was on vacation in
New Mexico. Documentary and credible testimonial evidence
establish that Simons was in New Mexico at the time. Riis-
ager’s testimony was clear as to the time and place of this con-
versation. Thus, I cannot find that the conversation occurred at
another time or place. Rather, I find that Riisager fabricated
this testimony.
Riisager testified that in December, Simons asked if a certain
employee-applicant had worked for a union employer. When
told that the employee had worked for the company, Simons
told Riisager that he did not believe that he could not hire the
employee because the employee had been a member of the
Union. However, Riisager also testified that Simons told Riis-
ager to have the employee call him. Simons gave Riisager
permission to give the employee his home phone number and
told Riisager to have the employee call Simons. Riisager asked
if Simons got in trouble for hiring Irvine and Simons answered
that he had. Respondent’s memorandum of March 1 admits
that Simons asked an employee if a certain employee was union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
affiliated.” I find that Simons questioned whether the employee
applicant was affiliated with the Union but that Simons did not
say that he could not hire the employee.
As a bulldozer operator, Irvine earned $35.70 per hour
(including benefits). As a water truckdriver, Irvine earned $26
an hour including benefits. Irvine was paid more than he had
received on prior nonsupervisory jobs. General Counsel con-
tends that this significant loss of pay was designed to cause,
and did cause, Irvine to resign his employment. On or about
December 20, Irvine received an offer of employment which
paid him $25 an hour but also promised him 10 hours a week of
overtime. Since this job offered more compensation than driv-
ing the water truck for Respondent, Irvine resigned from
Respondent on December 23, 1998.
Rollins was hired by Simons to work as an equipment opera-
tor. On or about November 18, Simons reassigned Rollins to
drive a rock truck. Prior to that assignment, Rollins had driven
a rock truck about one third of the time. As an equipment op-
erator, Rollins received $35.70 per hour including benefits. As
a rock truckdriver, Rollins earned $25.88 including benefits. As
a rock truckdriver, Rollins was earning more than he received
at any of his previous jobs. Rollins was moved from different
pieces of equipment more than most employees because other
employees had performed better on each piece of equipment.
Around November 10, Kenneth Hoover a superintendent, re-
ported to Johnson that he saw that the person operating a blade
was not operating the equipment properly. Johnson determined
that the person was Rollins. Johnson gave this information to
Simons. Simons immediately took Rollins off the blade.
Rollins was assigned to grade checking for 2 days and then
assigned to a rock truck. Simons and Anderson decided that
Rollins was better on the rock truck than any other equipment
he operated.
The General Counsel contends that after Rollins was as-
signed to the rock truck, Respondent assigned unqualified and
inexperienced employees to operate equipment. Rollins testi-
fied that on January 4, he observed an employee improperly
operating a hoe ram. Rollins informed Anderson that the em-
ployee was not qualified. According to Rollins, Anderson sim-
ply answered that the employee had told Respondent that he
could operate the equipment. Two days later, Anderson and
Simons needed someone to operate a rubber tire backhoe. Ac-
cording to Rollins, Anderson and Simons ignored Rollins while
asking almost all the employees if they could perform the work.
Rollins assumed that the supervisors knew that he could operate
the equipment but did not volunteer for the assignment. Ulti-
mately, the same employee that Rollins had observed operating
a hoe ram incorrectly, was assigned the work.
On January 8, Rollins called Simons and terminated his em-
ployment with Respondent. Rollins testified that he quit be-
cause of “the money” and because of a safety issue. I do not
credit Rollins testimony that he quit because of the money,
because he was earning more as a truckdriver for Respondent
than he earned in any of his prior jobs.
On February 1, the Union notified Respondent that Riisager
was an “inside organizer.” That same date, Simons asked Riis-
ager if he really was in the Union. Riisager and Simons had a
problem with moneys withheld from the checks with a previous
employer. Simons asked Riisager if the Union was paying back
the money owed to Riisager.
On February 5, 1999, Riisager provided an affidavit to the
board in connection with the charge concerning Rollins and
Irvine. On February 10, Respondent became aware of the alle-
gations against Simons. On February 16, Simons admitted to
Johnson that he had discussed the Union with Riisager. John-
son reminded Simons of the labor relations training he had
received and told Riisager that he was to remain silent about
union issues. On or about February 22, Simons told Riisager
that he didn’t want to talk with Riisager because Riisager had
gotten him in trouble. This was an apparent reference to
Simons’ questioning of Riisager.
On March 1, Johnson issued a written warning to Simons.
Johnson reminded Simons that the supervisor had been in-
structed to keep silent about union issues and to specifically
avoid asking employees anything about union activities. John-
son further wrote that any further such conduct would result in
termination of employment. Also, on March 1, Johnson issued
a memorandum to employees which stated as follows:

We have had a series of unfair labor practice charges
filed against us by Operating Engineers Union Local 12.
We believe none of the charges have merit and we have
been in the process of providing facts and information to
the National Labor Relations Board to defend against the
charges.
However, in the most recent charge filed, certain alle-
gations were made that one of our supervisors, Jay
Simons, said things that could arguably constitute unfair
labor practices.
Jay Simons has been in supervisory training sessions
in which he and all supervisors have been instructed not to
say anything to employees about the union and/or union
employees. It is this company’s position, and it has al-
ways been this company’s position, to not discriminate
based upon union backgrounds or affiliation, not to inter-
rogate employees about their union affiliation, and not to
imply that union employees would be penalized in any
way, shape or form, based upon their union affiliation. No
supervisor of Meadow Valley is authorized to say or do
otherwise and all Meadow Valley supervisors have been
trained and instructed not to do otherwise.
Mr. Simons has admitted violating those instructions
and in the process has said some things to certain employ-
ees that may be construed as unfair labor practices. Spe-
cifically, Mr. Simons asked an employee if the union paid
them anything for being an organizer, asked an employee
if a certain person was union-affiliated, asked if an em-
ployee (who Mr. Simons thought was a close friend) if he
was in the union, why he had not told Mr. Simons before,
and why the union had sent the company a letter about
him. In accordance with our legal duty to do so, we
hereby renounce, repudiate, and rescind, all of these com-
ments and anything else that Mr. Simons may have said to
any employee about union interrogation, union affiliation,
or union background. Appropriate discipline of Mr.
Simons in the form of a written final warning, has been is-
sued. The recent unfair labor practice alleged that Mr.
Simons said other things but he has denied them.
We wish to reassure all employees that neither their
union affiliation nor union background will have any in-
fluence, one way or the other, upon work assignments,
upon hiring practices, or upon continued employment with
Meadow Valley. We renounce and repudiate any com-
ment that may be made by any supervisor in the future that
is inconsistent with these assurances. Meadow Valley is
MEADOW VALLEY CONTRACTORS 803
interested only in an employee’s willingness and ability to
work for the pay provided. We want to assure all employ-
ees that Meadow Valley does not retaliate against anyone
for being either for or against unionization.

After Respondent was notified that Riisager was a union or-
ganizer, Riisager asked Anderson about continued employment.
Anderson told Riisager that he did not care about Riisager’s
union activities. Anderson told Riisager that he had no problem
with him and that Riisager could stay for 20 years.
On or about March 13, Respondent laid off approximately
eight employees. Further layoffs were necessary in April. On
April 15, 1999, Simons informed Riisager that he was being
laid off. Simons was one of five employees laid off that day.
Riisager thanked Simons for the work and left. Three of the
laid off employees were truckdrivers.
Respondent asserts that there was a “toss-up” between
Cheston Cardova, another operator and Riisager as to who was
going to be laid off. Simons argued for Riisager’s retention but
Anderson decided to keep Cardova because he had worked with
Cardova in the past. On April 16 Cardova quit. Respondent
chose not to recall Riisager but instead retained another opera-
tor named Larry Moore. The reason for retaining Moore was
that he was still present and not officially laid off when Re-
spondent learned of Cordova’s resignation. On May 10 Roger
Burright, another operator laid off with Riisager on April 15,
was recalled to work. Burright was recalled at the request of a
working foreman for a special assignment. Respondent nor-
mally does not recall employees from layoff but instead relies
on new hires to fill vacancies. Respondent hired operators on
May 10 and 17, and July 26, rather than recall Riisager.
Respondent contends that that Rollins and Irvine had been
assigned to the rock truck and water truck prior to any knowl-
edge of union activities on their part. Respondent also contends
that Rollins was assigned to drive a truck because his perform-
ance as an operator was inadequate. Further, Simons, Johnson,
and Anderson all hired or referred union members to work for
Respondent. Finally, Respondent contends that it repudiated
Simons’ remarks to Riisager.
C. Conclusions
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of 8(a)(1) turning on
employer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
decision. Upon such a showing, the burden shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Corp., 462 U.S.
393, 399–403 (1983). In Manno Electric, 321 NLRB 278, 280
fn. 12 (1996), the Board restated the test as follows: the General
Counsel has the burden to persuade that antiunion sentiment
was a substantial or motivating factor in the challenged em-
ployer decision. The burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged in
protected activity.
The two elements necessary to establish a constructive dis-
charge are, first, that the burdens imposed on the employee
must cause a change in working conditions so difficult or un-
pleasant as to force an employee to resign, and second, that the
burdens were imposed because of the employees’ union activi-
ties. Crystal Princeton Refining Co., 222 NLRB 1068 (1976);
Consec Security, 325 NLRB 453 71 (1998). A significant re-
duction in income for an indefinite period of time, causing an
employee to quit and seek alternative employment, when a
motive for such treatment was protected activity will establish
constructive discharge. T&W Fashions, 291 NLRB 137, 142
(1988); Trumbull Industries, 314 NLRB 360, 365 (1994); Con-
sec Security, supra.
For the following reasons, I find that the General Counsel
has made a weak prima facie showing that Respondent was
motivated by unlawful considerations in assigning Irvine to
drive a water truck. First, the only evidence of knowledge of
Irvine’s union activities is that on October 19, Irvin began
wearing union insigna. Irvine wore a union sticker on his hard
hat and a union T-shirt. Irvine also had a union sticker on his
lunchbox. However, there is only circumstantial evidence that
Respondent was aware of Irvine’s union paraphernalia. The
timing of the assignment coincides with wearing of the union
articles but more importantly coincides with the fact that the
bulldozer Irvine was working on broke down on October 20.
Therefore, on October 21, Irvine was reassigned to a water
truck. After Irvine was designated an inside organizer by the
Union, Irvine was reassigned to a larger water truck. Irvine
received a slight wage increase with this reassignment. The
only evidence of animus is Simons’ conversation with Riisager
wherein Simons asked whether the Union paid its organizers.
That conversation took place after Irvine was assigned to a
water truck. Further, the animus doesn’t appear strong enough
to show that Respondent would violate the law to retaliate
against a union supporter. Simons knew that there were union
members on the job and had hired union members.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of Irvine’s union
activities. Respondent has shown legitimate business reasons
for assigning Irvine to a water truck. First, Irvine’s bulldozer
broke down the day before he was assigned to the water truck.
Second, Irvine had the appropriate driver’s license to operate
the water truck. Third, Irvine did a good job on the water truck.
Fourth, all these events took place prior to notification that
Irvine was an organizer for the Union.
Thus, I find that the weak prima facie case is rebutted by the
evidence that lawful reasons for Irvine’s reassignment existed.
I find Respondent has shown that Irvine would have been reas-
signed in the absence of his union and protected concerted ac-
tivities. Thus, I find that Respondent has not violated Section
8(a)(3) and (1) of the Act.
Respondent’s records show that prior to receipt of the letter
designating Rollins as a union organizer, Rollins had worked
more than one third of his time driving a rock truck. Simons
testified that he had moved employees to different pieces of
equipment to see where they worked. Rollins was moved more
than most employees because other employees had performed
better on each piece of equipment. Around November 10,
Kenneth Hoover a superintendent, reported to Johnson that he
saw that the person operating a blade was not operating the
equipment properly. Johnson determined that the person was
Rollins. Johnson gave this information to Simons. Simons
immediately took Rollins off the blade. Rollins was assigned to
grade checking for 2 days and then assigned to a rock truck.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
Simons and Anderson decided that Rollins was better on the
rock truck than any other equipment he operated.
Again, the General Counsel has at best a weak prima facie
case. Rollins was assigned to the rock truck 2 days after the
Respondent received a letter designating him as an organizer.
However, prior to receipt of that letter Hoover had reported that
Rollins was not operating a blade properly. Johnson relayed
this information to Simons who immediately took Rollins off
that equipment. Rollins was assigned to a rock truck 2 days
later, an assignment he had performed more than one third of
his time on the jobsite.
The only evidence of animus is that Simons questioned Riis-
ager whether the Union paid its organizers. This evidence is
not strong enough to support an inference that Respondent reas-
signed Rollins because of his union activities. This is particu-
larly true where as here Respondent had legitimate business
reasons for assigning Rollins to the rock truck.
As stated above, to support a constructive discharge, the bur-
dens imposed on the employee must cause a change in working
conditions so difficult or unpleasant as to force an employee to
resign. In Algreco Sportswear Co., 271 NLRB 499, 500
(1984), the employer instituted a three-tier wage plan and put
six employees in the lowest wage group because of their pro-
tected activity. One of the employees quit. The Board held
that the wage assignment was discriminatory, but not so intol-
erable as to force the employee to quit. Similarly, In KRI Con-
structors, Inc., 290 NLRB 802 (1988), an employer paid union
supporters $1.90 an hour less than nonunion employees. The
lower pay was found to be discriminatory but not so difficult
and unpleasant to force the employees to quit.
In the instant case, Irvine and Rollins were being paid under
prevailing wage conditions. Although they were paid less than
equipment operators, they were well paid. Rollins was earning
more than he had received with his previous employers. Irvine
was paid more than he had received on prior nonsupervisory
jobs. Assignment to these jobs would not reasonably be ex-
pected to cause these employees to quit. Further the conditions
could not reasonably be characterized as so difficult and un-
pleasant as to force the employees to quit.
The General Counsel concedes that Respondent had lawful
reasons for a reduction in force in April 1999. However, the
General Counsel contends that Riisager was included in the
layoff because Riisager gave testimony in the form of an affi-
davit in Case 28–CA–15775.3 Riisager gave an affidavit to the
Board on February 5, 1999. Shortly thereafter, Simons said he
would not talk to Riisager because Simons had gotten into
trouble for talking to Riisager about the Union. On February
16, Simons admitted to Johnson that he had discussed the Un-
ion with Riisager. Johnson reminded Simons of the labor rela-
tions training he had received and told Riisager that he was to
remain silent about union issues. On March 1, Johnson issued a
written warning to Simons and a memorandum to employees
repudiating Simons’ remarks to Riisager.
Respondent laid off seven employees between March 11 and
22. Moreover, when Respondent did lay off Riisager in April,
Simons argued against including Riisager in the layoff. Ander-
son chose another employee over Riisager because Anderson
was more familiar with the other employee. Anderson did not

3 The General Counsel listed the wrong case number. The affidavit
at issue was given on February 5, 1999, but Case 28–CA–15775 was
not filed until April 19, 1999, 4 days after Riisager’s layoff.
have animus against Riisager. After Respondent was notified
that Riisager was a union organizer, Riisager asked Anderson
about continued employment. Anderson told Riisager that he
did not care about Riisager’s union activities
Simons did question Riisager, a longtime friend, about the
Union after Riisager was designated a union organizer. How-
ever, Respondent repudiated those remarks when it found out
about them.
It has long been held that there are five principal elements
that constitute a prima facie case insofar as Section 8(a)(3) and
(1) are concerned. The first is that the employee alleged to be
unlawfully disciplined must have engaged in union or protected
activities. The second is that the employer knew about those
protected activities. Third, there must be evidence that the
employer harbored animus against those individuals because of
such activities. Fourth, the employer must discriminate in
terms of employment. Finally, the discipline must usually be
connected to the protected activity in terms of timing. See, e.g.,
Goodyear Tire & Rubber Co., 312 NLRB 674 (1993).
The evidence shows that Respondent knew that Riisager
gave an affidavit or otherwise gave testimony to the Board. It
was a conversion between Riisager and Simons that Respon-
dent attempted to repudiate. Further, Respondent received a
letter from the Union designating Riisager a union organizer.
There is no evidence that Respondent harbored animus against
Riisager for this conduct. An economic layoff was necessary.
Simons argued against laying off Riisager. Anderson had pre-
viously assured Riisager that the employees’ union activities
would not be held against him. I cannot find that Respondent
acted unlawfully in laying off Riisager in April 1999.
The Respondent did not thereafter recall Riisager from lay-
off. The evidence shows that Respondent did not generally
recall employees. Rather the Company generally hires from
new applicants. One employee was recalled pursuant to the
request of a working foreman. While the failure to recall Riis-
ager may appear suspicious, there is insufficient evidence to
find that Respondent discriminated against him because of his
union activities or because he gave testimony under the Act.
As indicated above, Simons admitted that he asked Riisager
if the Union paid employees to organize, if an employee-
applicant was affiliated with the Union, if Riisager was in the
Union, why the Union had sent Respondent a letter about Riis-
ager, and why Riisager had not told Simons before. However,
on March 1, Respondent attempted to repudiate this conduct.
In Passavant Memorial Area Hospital, 237 NLRB 138
(1978), the Board held that an employer may relieve itself of
liability for unlawful conduct by repudiating the conduct. To
be effective such repudiation must be “timely,” “unambiguous”
“specific in nature to the coercive conduct,” and “free from
other proscribed illegal conduct.” Furthermore, there must be
adequate publication to the employees involved and there must
be no proscribed conduct after the publication. Finally, such
repudiation or disavowal of coercive conduct should give as-
surances to employees that in the future their employer will not
interfere with the exercise of their Section 7 rights.
I find that Johnson’s March 1 memorandum meets the Pas-
savant requirements. The critical issue is whether there have
been any further violations of the Act since the repudiation. As
indicated above, I find that Respondent did not violate the Act
after the March 1 memorandum.
MEADOW VALLEY CONTRACTORS 805
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. It has not been established that Respondent has violated
Section 8(a)(3) and (1) of the Act as alleged in the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended4

4 All motions inconsistent with this recommended order are denied. In
the event no exceptions are filed as provided by Sec. 102.46 of the
ORDER
IT IS HEREBY ORDERED that the complaint be, and it is,
dismissed in its entirely.

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.