Red Devil Auto & Fleet Repair, LLC

National Labor Relations Board - Administrative Judge Opinions

Feb 3, 2016

28-CA-146421 (N.L.R.B. Feb. 3, 2016)

JD(SF)–04–16
Surprise, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
RED DEVIL AUTO & FLEET REPAIR, LLC
and Cases 28–CA–146421
28–CA–152886
ROBERT KAMALO, an Individual
Chris J. Doyle, Esq. and Alexander J. Gancayco, Esq.,
for the General Counsel.
Jeffrey W. Toppel, Esq., of Jackson Lewis, P.C.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried in Phoenix,
Arizona on July 21 and July 22, 2015. Robert Kamalo, an individual, (the Charging Party or
Kamalo), filed the original charge in Case 28–CA–146421 on February 13, 2015, and the second
charge on May 26, 2014, in case 28–CA–152886.1 The General Counsel issued the original
complaint on April 30 and amended it with a consolidated complaint (complaint) in this case on
June 18, and the Respondent answered the complaint on July 10 generally denying the critical
allegations of the complaint.
This case involves the Respondent’s sudden discharge of the Charging Party on
February 12 after discussions were had between the Charging Party and his coworkers
concerning Respondent’s delayed payment of earned wages and Charging Party’s suggestion that
the group of employees contact the Board for assistance. The Respondent denies that these
employee discussions had anything to do with its discharge of the Charging Party.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following.

1
All dates in 2015 unless otherwise indicated.
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2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with an office and place of business in
Surprise, Arizona, has been engaged in the service and repair of heavy duty trucks and
automobiles continuously since 2006 through at least February 12. The Respondent admits, and 5
I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. (Transcript at 10, 244–250; General Counsel Exhibit 6.)2
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations
Respondent services and repairs heavy duty diesel trucks and trailers as well as 10
automobiles and it employed three mechanics, a customer service agent, and parts runner at all
material times in this case from approximately November 2014, through February 12. The work
extended from minor auto and truck repairs to major engine overhauls. For example,
Respondent had inspection work from the Arizona Department of Transportation but could also
provide a full transmission rebuilt or replacement. (Tr. 148.) Respondent would also make truck, 15
trailer, and auto shock absorber, suspension, and air conditioning repairs.
Respondent is owned and managed by Jayson Finch (Finch) and his wife Erika. Finch is
Respondent’s primary mechanic but Respondent also employed Mark McAllister (McAllister)
and Cliff McNamara (McNamara) as mechanics in late 2014 and early 2015.
Kevin Melvin (Melvin) was also employed by Respondent since 2011, and acted as an 20
agent for Respondent in Finch’s absence and worked as a service contract writer and customer
service representative on a daily basis. (Tr. 76–77.) Melvin was Finch’s “second hand man” and
handled all employee matters in Finch’s absence including answering calls or texts into work for
missed days, late arrivals or early dismissals on a regular basis. Melvin would notify Finch of
employees’ divergence from the 8–5 schedule. (Tr. 36–37, 80, 143.) Finch admitted that Melvin 25
works as a supervisor in Finch’s absence and Melvin takes over all of Finch’s responsibilities
including assigning employees work tasks but Melvin did no hiring and firing of employees. (Tr.
37, 144.) Melvin would also communicate to employees whenever Finch instructed Melvin to
let employees go home early. (Tr. 81.) Finch also instructed employees to contact Melvin first
with time and attendance issues and only contact Finch if an employee received no response 30
from Melvin. (Tr. 144.)
Respondent retained the services of OneSource Employer Services, a payroll accounting
service, who recorded employees hours and pay from timecards submitted at Respondent.
Employees were generally paid as hourly employees and they received their paychecks either at

2
Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s exhibit;
“GC Exh.” for General Counsel’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for the General Counsel’s brief and
“R Br.” for the Respondents’ brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence specifically
cited, but rather on my review and consideration of the entire record.
JD(SF)–04–16
3
midnight on Fridays via direct deposit into their bank account or delivery by Respondent’s
check-writing service’s check on Fridays at work or through the mail.
B. Kamalo’s General Employment with Respondent
Kamalo interviewed with Finch for the parts runner position by shadowing him from
October 22, 2014, for a “working interview.” (Tr. 141.) Kamalo’s paid employment began with 5
Respondent on November 3 or November 4, 2014, and continued through February 12 the
following year. (Tr. 142, 172, 195.) Kamalo worked 8-hour workdays Mondays through Fridays
from 8 a.m. to 5 p.m. with an hour lunch break as a parts runner and shop cleaner. Most times,
he was paid hourly and received his paycheck on a weekly basis for the most part and had his
weekly paycheck directly deposited into his bank account each Friday at midnight. (Tr. 149, 10
254.)
Kamalo was hired by Respondent as a parts runner and shop and tool cleaner, and he
performed a variety of odd jobs when needed throughout his employment. Kamalo opined that
most of the parts he was sent to pick up for Respondent were in the price range of $50–$200
each and that he rarely picked up parts costing more than $1000. (Tr. 145.) Kamalo would pay 15
for the parts in a variety of ways including by Respondent’s check, Respondent’s credit card, and
Respondent’s account being charged at a parts store with Respondent’s credit card being on file.
Id.
Kamalo missed time from work at Respondent for a variety of reasons including two
incidents involving his step-son, he hurt his foot and missed some time, and his fiancé was ill 20
and required hospitalization over the holidays in 2014. This missed work resulted in Kamalo not
being available to work at Respondent and Kamalo not being paid for these same missed hours.
Kamalo returned to work on January 5 and worked his position as parts runner and shop cleaner
until February 12. (Tr. 180.)
During his entire employment at Respondent, Kamalo worked the following hours and 25
though he occasionally spoke to Finch about missing work, Kamalo received no discipline or
warnings from Respondent for his work attendance or work performance:
Week Dates Worked Hours Worked OT Hrs. Wrkd Payment Date
1 11/3 – 11/7 39.33 - 11/14/14
2 11/10 – 11/14 37.33 - 11/21/1430
3 11/17 – 11/21 39.04 - 11/28/14
4 11/24 – 11/283 25.5 - 12/5/14
5 12/1 – 12/5 34.50 - 12/12/14
6 12/8 – 12/12 40 1.0 12/19/14
7 12/15 – 12/19 12.83 - 12/26/1435
8 12/22 – 12/264 no work due to fiancé hospitalization
9 12/29 – 1/25 no work due to fiancé hospitalization
10 1/5 – 1/9 40 1.08 1/16/15

3
Thanksgiving 2014 week.
4
Christmas 2014 week.
5
New Year’s 2015 week.
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11 1/12 – 1/16 35.75 - 2/6/15
12 1/19 – 1/23 37 - 2/6/15
13 1/26 – 1/30 38 - 2/6/15
14 2/2 – 2/6 31 - 2/13/15
15 2/9 – 2/12 8.5 - 2/20/155
(GC Exh. 2.)
As stated above, Kamalo was only paid for hours actually worked and he did not receive
any paid time off for sick leave or vacation. (Tr. 196.) He earned $9 per hour and time and one-
half or $14.50 per overtime hours worked over 40 hours per week. Kamalo missed 2 entire 10
weeks over the 2014 Christmas and New Year’s holidays due to his fiancé’s hospitalization and
the fact that it was a slow time for Respondent due to the holidays and Finch did not voice any
objection to Kamalo taking this unpaid time away from work. (Tr. 179, 196, 198, 272.) Melvin
and Finch responded to the December absences due to Kamalo’s fiancé’s illness by telling him
“just keep us updated.” Id. In fact, Finch often told Melvin that it was okay for Kamalo to take 15
unpaid time off work. (Tr. 54.)
As a parts runner, Kamalo’s duties included driving a Respondent vehicle and using
Respondent’s credit card for gas for the vehicle to a variety of parts locations around the general
Phoenix area including Genuine Parts Co. d/b/a NAPA Auto Parts, Arizona Brake & Clutch 20
Supply, Inc., FleetPride, Inc., Freightliner of Arizona, LLC d/b/a Freightliner of Arizona, Inland
Kenworth, Inc., Lubrication Equipment & Supply Co. d/b/a The Hose Advantage Store, Rush
Truck Centers of Arizona, Inc., RWC Int’l, Ltd d/b/a RWC Group, and Don Sanderson Ford,
Inc., d/b/a Sanderson Ford. Kamalo would retrieve parts from these locations on an as needed
basis with instructions from Finch or Melvin. Kamalo opined that his parts runner duties took 25
him to retrieve parts approximately 3–4 times per day. (Tr. 146, 267.) When Kamalo was not
retrieving parts, he was assigned to clean the shop, weed the outer perimeter, or clean mechanic’s
tools. Kamalo occasionally used his own personal automobile when Respondent’s vehicle was
unavailable. (Tr. 184.)
C. Respondent’s Lax Personnel Policies from Late 2014 to Feb. 12, 201530
In late 2014 and early 2015, Finch ran Respondent informally without written rules or
any formal personnel policy handbook for handling employment problems concerning time and
attendance, cellphone use, or employee discipline. (Tr. 253–256.) Instead, Finch opined that he
ran his small business like a family and held employees accountable like he would his family.
Finch shared that he does not write up his children for bad behavior and also did not write up 35
Respondent’s employees in 2014–2015. (Tr. 27–28.)
Respondent had no policy regarding employee discipline and never issued anything in
writing that could be considered disciplinary in nature in later 2014 or early 2015. (Tr. 255–256.)
Finch as Respondent’s owner wore all hats for Respondent and admits that he did not have
enough time in late 2014 or early 2015 to take care of managing employees or having a 40
disciplinary policy that was followed. (Tr. 255.) At no time did Respondent have any work
policy that said that employees would be disciplined if they did not work 40 hours in a week.
JD(SF)–04–16
5
Also, Finch never warned any employee that they would be terminated if they continued
to miss work. (Tr. 52.) There was never any policy about employees’ use of cellphones at
Respondent in 2014–2015. (Tr. 61.)
Finch admits that from late 2014 through early 2015, all of Respondent’s employees
including Finch and his wife had work performance problems including, but not limited to, 5
missed work, use of cellphones for personal matters during work hours, and employees
occasionally repairing vehicles poorly. (Tr. 182, 233, 257, 277–278.) Finch reported that
McAllister had personal problems at home and that McAllister would come into work late or he
would leave early. (Tr. 69.) Finch also reported that McNamara too would often arrive to work
late and leave work before he had worked 8 hours during a workday during Kamalo’s 10
employment at Respondent. (Tr. 69, 86.) Kamalo was a no-show for work approximately 6–7
times during his employment at Respondent and he did not communicate with Melvin ahead of
his absences. (Tr. 82.) In addition, McAllister had family in California and he had 2 unexplained
days off during the time that Kamalo worked at Respondent. Id.
Finch complained that both McNamara and Kamalo would always use their cellphones at 15
work for personal matters but at no time did Respondent discipline any of its employees in
writing or in any other formal manner for any work performance issue in late 2014 or early 2015.
Finch listed McNamara’s excessive absences, excessive time off, repair reworks, and
inconsistent overall work quality as McNamara’s bad work habits. (Tr. 263–264.)
Finch would occasionally verbally discuss these work performance issues but he did not 20
take any official disciplinary actions. For example in early January, Finch was upset and told
Kamalo that he needed to better prioritize his work tasks as Finch found Kamalo helping
McAllister with a transmission problem in the yard. (Tr. 173–174, 204.) Kamalo explained to
Finch that Melvin had given Kamalo the work assignment to help McAllister pull a transmission
as they needed to get the pulled transmission to the Gear Shop. (Tr. 174.) 25
In a couple of instances involving work performed by mechanic McAllister and not
Kamalo, Respondent was required to redo shoddy work at Respondent’s own significant extra
costs which eventually interfered with Respondent’s cash flow to the point that Respondent did
not pay its employees their regular Friday paychecks on time from 1/23 until 2/6/15, or a period
of 2 weeks. (Tr. 73, 207, 209, 233–234, 259–262, 273, 277–278; R. Br. at 8.)30
In January, Finch called an employee meeting to emphasize the need for better quality
control with vehicle repairs. Id. In at least two incidents involving mechanic McAllister and not
Kamalo, Finch complained to mechanics about poor work quality in repairing a truck that had
lost its wheels due to a faulty repair in January 2015, and later that same month McAllister also
failed to properly repair a truck as he forgot to put an essential part back on that allowed the 35
truck to dump its load in Prescott, Arizona. Id. Later in January, Finch told the employees that
when they do poor work, they are taking food from his table. Id. McAllister was never
disciplined by Respondent for poor work performance and remained employed at Respondent
through at least the middle of April more than 2 months after Kamalo was terminated. (Tr. 259.)
McNamara remained employed as a mechanic with Respondent until he decided to quit in mid-40
May. (Tr. 263–264.)
JD(SF)–04–16
6
D. Employees Complained About Respondent’s Delayed Wage Payments
At some point on or after January 23, without any advance warning6, Respondent’s
employees’ paychecks were not paid on time and there was a 2-week delay in Respondent’s
payment of earned wages from January 23 to February 6. (Tr. 150, 210–211, 215; GC Exh. 2.)
At approximately, 8 a.m. on January 23, Kamalo first notified Melvin that he had not received 5
his paycheck as usual via direct deposit. Melvin responded by telling Kamalo to notify Finch
about his delayed paycheck.7 (Tr. 150.)
Also on January 23 at approximately 11 a.m., Kamalo spoke to Finch about not receiving
his paycheck on time and if Finch knew what was going on about his delayed paycheck. (Tr.
153.) Finch told Kamalo that Finch had been looking for Kamalo the day before to notify him 10
that paychecks would be delayed as there was a holdup as to disbursing paychecks to all
employees as Finch said that he was waiting on one of his customers to pay their bill and that as
soon as the customer paid his bill, Finch would be paying Respondent’s employees their
paychecks. Tr. 153.) Later that same day, Finch further informed Kamalo that as soon as more
money came into Respondent, Finch would notify the employees as to when Respondent would 15
pay them their delayed compensation. (Tr. 52.) Kamalo credibly disputes that Finch waited
around to inform him that delayed paychecks were coming as Kamalo knew that he and Melvin
were at Respondent when Finch left for the day without any notice to him that paychecks were
being delayed. (Tr. 219.)
On January 28 at approximately 8 a.m., Kamalo spoke to McAllister and McNamara in 20
the bay at the shop. Kamalo notified his coworkers that his January 23 paycheck was delayed
and had not been deposited into his bank account. (Tr. 154.) Kamalo asked them if they were
aware if they had been paid their January 23 paychecks yet and they responded by saying that
neither one of them had been paid either. Id.
Kamalo asked McAllister and McNamara whether Finch had any new information about 25
their delayed paychecks or whether Finch had told them anything about their delayed paychecks
and when payment could be expected. (Tr. 154.) They told Kamalo that they had not heard
anything from Finch as to when they could expect to receive their delayed paychecks. The three
employees then discussed among themselves how frustrating it was for them not receiving
advance notice from Respondent first that their paychecks would be delayed and then having no 30
information as to how long the delay would last and when they would receive their delayed
paychecks. (Tr. 154, 219–221, 235.)
Kamalo then suggested that maybe they all talk to somebody regarding their delayed
paychecks. Id. Kamalo further suggested that the three of them should talk to somebody at the

6
Kamalo disputes Finch’s testimony that Finch went looking for Kamalo on 1/22 to inform him of the
upcoming delayed paycheck due to financial problems. Kamalo confidently without hesitation testified that he was
present at Respondent with Melvin late in the day on 1/22/15, and that Finch went home without ever informing
Kamalo that he would not receive his paycheck on time the next day. Tr. 210–215, 217–219.
7
At hearing, Kamalo forgot about when he first spoke to McAllister and McNamara regarding not receiving
his delayed paycheck on January 23. I find that Kamalo first spoke to McAllister and McNamara about their
delayed paychecks the following week on January 28 as Kamalo’s February 19 affidavit contains more reliable facts
that both McAllister and McNamara were not present at Respondent on January 23 as they were out sick that day.
Tr. 213–216, 219.
JD(SF)–04–16
7
Labor Board or whoever it may be at that time to figure out what rights they had because they
were not receiving any communication about the status of their pay from Respondent. Id.
McAllister and McNamara nodded their heads in agreement with being frustrated with
Respondent and with Kamalo’s suggestion that they seek outside help to improve their delayed
paycheck situation but it also appeared to Kamalo that neither McAllister nor McNamara wanted 5
to “rock the boat” with Finch. (Tr. 154–155, 235.) At this point, all three decided to wait a little
longer to see if they would hear something more definite from Finch as to when they would
receive their delayed paychecks since at that time it was only Wednesday and the paychecks
delivery had been delayed only 5 calendar days. Id.
Sometime between the end of January and the beginning of February before February 6, 10
Kamalo contacted a friend and asked which government agency would be best to assist Kamalo
and his coworkers in obtaining their unpaid backpay and Kamalo’s friend gave Kamalo the
telephone number of the National Labor Relations Board Region 28 General Counsel’s Office.
(Tr. 220–221.)
Kamalo did not receive his January 30 paycheck on time either. (Tr. 155.) Kamalo spoke 15
to McAllister and McNamara in the morning on January 30, and he informed them that in
addition to his January 23 paycheck, his January 30 paycheck was also not paid on time. (Tr.
155–156.) Kamalo asked his coworkers, McAllister and McNamara, whether they had heard
anything about when they would receive their delayed wages and they said they had not heard
anything about “our” pay at that time. Kamalo responded by telling his coworkers that he would 20
talk to Finch as soon as he saw him about their late pay and when they would get paid. Id.
Later in the morning on January 30, at the front gates of Respondent’s yard, Kamalo
asked Finch if he had anything to report in regards to the employees’ delayed paychecks as
Kamalo told Finch that “we” have bills piling up at that time and that Kamalo and his coworkers
were wondering about the status for getting paid their delayed paychecks. (Tr. 156.) Finch told 25
him that Respondent was still waiting to receive funds from Respondent’s customers for work
performed and that he was still waiting to hear from his customer that owed Respondent money
for jobs that had been completed. Id. Finch also told Kamalo that he was waiting for one check
from a customer to possibly give Kamalo and his coworkers a small advance toward what
Respondent owed in delayed paychecks and that Finch would let employees know as soon as he 30
heard about the check from a customer. Id.
After speaking to Finch, Kamalo saw McAllister and told him what Finch had told him
earlier on January 30, about a possible small advance but no definite date for payment of delayed
paychecks had been mentioned by Finch. (Tr. 157.) Kamalo expressed his disappointment to
McAllister as to how the situation for payment of delayed paychecks was being handled by 35
Finch and Respondent. Kamalo repeated to McAllister that he was interested in talking with the
Labor Board because nothing seemed to be getting done at Respondent regarding payment of
their delayed paychecks. In response, McAllister also appeared disappointed at hearing from
Kamalo that there was still no definite date as to when employees could expect to be paid their
delayed paychecks. (Tr. 158.) Kamalo observed that McAllister’s body language showed that 40
McAllister was also disappointed by the uncertainty of payment of delayed paychecks as he “had
his head down and he was nodding his head in regards to when I [Kamalo] was talking about
being upset about no communication within -- within us about our pay not being issued.” Id.
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Kamalo further opined that McAllister still acted like he did not want to rock the boat too much
at Respondent as the two got ready to go to lunch. Id.
Later on January 30, Finch gave Kamalo, Melvin, McAllister, and McNamara what he
called a $250 cash advance toward their delayed paychecks and Finch took them all out to lunch
at Burger King. (Tr. 158–159.) At the end of lunch, Finch told his employees that he was trying 5
to figure out how to get all of them paid their delayed paychecks and that he was still waiting to
receive income from customers and that Respondent could only afford $250 each employee at
that time. Id.
On approximately February 2 or February 3, after Kamalo had been employed for more
than 90 days with Respondent, Kamalo spoke to Finch and inquired about the delayed paychecks 10
and told Finch that he needed to pay bills with monies owed to him by Respondent. (Tr. 159.)
Finch responded to Kamalo saying that he did not hear anything else about checks coming into
Respondent from customers, that he was still waiting to get paid by customers, and that there was
nothing that Finch could do about the delayed paychecks at that time because Finch and
Respondent did not have any monies on hand to pay any of Respondent’s employees. (Tr. 53, 15
159.)
At this same time, Kamalo, McAllister, and McNamara were talking among themselves
about unpaid bills and their needs for their delayed paychecks as McAllister had broken a tooth
and needed dental work and Kamalo and McNamara needed to pay their monthly rents. (Tr.
160–161.) 20
On February 5, Kamalo received more than one email from Respondent’s payroll service
containing electronic pay stubs at 7:30 a.m. prior to his workday. (Tr. 161.) When he arrived at
work at 8 a.m. later that day, Kamalo discussed with McAllister that he had received the multiple
emails from the payroll service and Kamalo told McAllister that their delayed paychecks were
possibly on their way to all Respondent’s employees and that Kamalo hoped this was true as 25
Finch had not informed them pay would be there on February 6. (Tr. 161–162.) McAllister and
Kamalo also informed McNamara later that day that they might be paid soon. (Tr. 162.)
On February 6, Respondent finally paid its employees their 2-week delayed paychecks as
well as their current paycheck for the week of 1/30. (Tr. 163.) Therefore on February 6,
Respondent paid its employees 3 weeks of wages—2 weeks being late and 1 week being paid on30
time less the $250 each in cash advances. (Tr. 224–225.)
On Monday, February 9, Kamalo called Melvin to report that he would be late coming to
work due to his son’s illness and his need to find a last minute baby sitter. Melvin
communicated this to Finch who communicated to Kamalo through Melvin that it was okay with
Finch if Kamalo wanted to take the entire day off to care for his son. (Tr. 163–165, 226; GC Exh. 35
5.)
On February 10, Finch conducted a meeting late in the day at approximately 4:30 or 4:45
p.m. with all Respondent’s employees and notified them that the following day, February 11,
Respondent had no work for employees and for them to take the day off and that if anything
changed, Finch would call them in. (Tr. 165–166, 226.) 40
JD(SF)–04–16
9
E. Finch’s 2/12/15 Meeting with Kamalo Leading to Kamalo’s Termination
from Respondent
On February 12, Kamalo reported to work at 8 a.m. (Tr. 167.) Finch arrived at
approximately 8:30 a.m. and at 9 a.m. Finch called Kamalo into his private office trailer at
Respondent for a short 5-minute discussion. (Tr. 167–169.) 5
Kamalo described the discussion as Finch seeming upset, angry, and tense and telling
Kamalo that he had an issue—that other employees were notifying him [Finch] about Kamalo
going to go to the Labor Board if Kamalo did not receive the pay that was owed to him. (Tr.
170–171, 185, 227–228.) Finch admits to questioning Kamalo why Respondent’s other
employees had come up to Finch telling him that Kamalo had said that he planned to go to the 10
Labor Board about not getting paid on time? (Tr. 66, 170.) Finch also recalled telling Kamalo on
February 12 after his Labor Board question to Kamalo that “if we were a work family, how were
we going to work through this if you don’t come and talk with me” first? (Tr. 66.) Finch also
admits that he further asked Kamalo “why he [Kamalo] needed to go to the Labor Board and
what the Labor Board thing was about?” Id. 15
Kamalo responded to Finch’s question in an “even mannered” tone of voice saying that
he was not going to lie to Finch and added: “yes, I was upset that you had not paid us and yes, I
was going to go to the Labor Board to see what our rights were as employees for not getting
paid.” (Tr. 170–171, 229.) Kamalo further told Finch that he was disappointed due to the lack of
communication from Finch and how many times he had to go back and ask Finch about the 20
delayed paychecks and that all the employees were upset that they were not being notified about
anything concerning the delayed paychecks. Id.
Finch responded in a serious and stern manner while sitting on his stool that despite the
mention by employees of unpaid bills to Finch when their paychecks were delayed, Finch told
him that Kamalo and the other employees have no idea what real bills look like and that 25
Kamalo’s “little bills” did not compare to Finch’s more significant bills and that if Kamalo
wanted to see Finch’s bills, Finch would show Kamalo what true bills looked like. (Tr. 170–171,
229.) Kamalo responded by saying that Finch’s personal bills were none of Kamalo’s business
due to the fact that Finch and Respondent were Kamalo’s employer and Kamalo was the
employee. (Tr. 171.) Finch responded by repeating that Kamalo’s minor problems that were30
going on in Kamalo’s little world paled in comparison to Finch’s much larger problems at
Respondent. (Tr. 172.)
Finch next told Kamalo that Finch no longer needed Kamalo’s services, Kamalo was
terminated, and that he should turn in his uniform. (Tr. 172.)
After leaving his trailer meeting with Finch, Kamalo approached McAllister who asked 35
Kamalo “What’s up?” (Tr. 173.) Kamalo responded to McAllister: “I’m out of here, see you
later.” Id.
Kamalo left Respondent and later that day he called the National Labor Relations Board
Region 28 General Counsel’s office in Phoenix, Arizona, and he recounted what had happened at
Respondent leading up to his termination earlier that day. (Tr. 175, 221.) A charge was filed the 40
following day.
JD(SF)–04–16
10
At no time during this discussion between Kamalo and Finch on February 12, did Finch
ever mention Kamalo’s work performance nor did Finch mention any problems with Kamalo
talking on his cellphone too much while at Respondent. (Tr. 172, 236.) Kamalo denies that he
became aggressive with Finch on February 12, and maintains that he acted “perfectly fine, calm”
at this time.8 (Tr. 172–173.) In addition, Finch never spoke to Kamalo about either coming into 5
work late or leaving work early being a problem or any other work performance issue that
bothered Finch. (Tr. 176.)
One of Finch’s versions of what occurred on February 12, is that at some point during the
morning of February 12, Finch met with Kamalo and Kamalo made it clear to Finch that Kamalo
did not want to work at Respondent that day because he had personal legal matters that he 10
needed to attend. In response, Finch testified that he told Kamalo that Kamalo could go home to
address these legal matters but that instead of clocking off work and going home, Kamalo
remained on the clock and texted someone with his cellphone for well over an hour. At this
point, Finch says that he finally decided to discharge Kamalo. (Tr. 28.)
Another version from Finch about Kamalo’s last day at Respondent on February 12, is 15
that Finch decided to terminate Kamalo from Respondent due to: (1) Kamalo’s work
performance; (2) Kamalo’s work history; and (3) Kamalo’s becoming aggressive to Finch in
their February 12 discussion. (Tr. 56–57.)
With respect to work performance, Finch opined that Kamalo would take too long to
clean Finch’s tools as work that would normally take Finch’s 2 sons an hour each to complete 20
took Kamalo 3 days to complete. In addition, beginning in 2015, Kamalo’s work performance
began to fail in a number of areas beyond cleaning tools. For example, according to Finch, by
the time February 12 rolled around, it was taking Kamalo 1 hour to pick up a part from
Freightliner where previously it took 30 minutes for Kamalo to pick up the same part in 2014.
Finally, according to Finch, Kamalo developed a bad work attitude in 2015, which Finch opined 25
also brought other employees’ attitudes down in the shop. For example, Kamalo would typically
clean a part according to Finch, text someone, clean a part, and call someone outside work like
his son or his lawyer, clean a part and send an email and other employees would see this in 2015,
and it dragged down morale. (Tr. 56–60.) Melvin testified that Kamalo’s work performance
started out okay but later in 2015, became less productive and Kamalo appeared distracted by 30
personal matters at home. (Tr. 84–85.)
Finch admits that he never formally disciplined or issued written warnings to Kamalo for
any work performance issued in 2015, but that he would speak to Kamalo directly about any
problems he had with Kamalo’s work performance. (Tr. 61.) Finch also admitted that during
Kamalo’s employment at Respondent, all of the other employees also had work performance 35
problems. (Tr. 68–69, 72, 86.) Finch says that he never formally disciplined or issued written
warnings to other Respondent employees and Respondent did not terminate McNamara or
McAllister at the time that Finch terminated Kamalo. (Tr. 72.)

8
Kamalo also credibly denied becoming upset, filing bankruptcy, contacting the Labor Board, or receiving
process of court documents from a process server at any time prior to being terminated on February 12. Tr. 200–
201.
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Finch did not discipline or terminate any other employee that same day for work
performance issues of any kind despite McAllister’s shoddy repair work that Respondent was
required to redo at its own labor time and parts cost. In addition, Finch did not discipline or
terminate any other employee on February 12, such as McNamara or McAllister for missing
work, showing up late or leaving early or using their cellphone for personal matters while at 5
work.
With respect to work history, Finch points to Respondent’s time and attendance records
in support of his claim that Kamalo did not work 40-hour workweeks. (Tr. 62; GC Exh. 2.)
Finch stated that he first talked to Kamalo about working 40 hours per week on November 14,
2014. (Tr. 63.) Finch admitted, however, that he would send Kamalo and others home if 10
Respondent did not have enough work in the shop that day. Finch also admitted that he would
also send mechanics McAllister and/or McNamara home with less than 8 hours work in a day if
there was not enough work to service. (Tr. 65.) Finch also admits that he sent Respondent
employees home before they worked an 8-hour day due to bad weather at times in 2014–2015, as
the mechanic and Kamalo worked outside at Respondent’s yard facility. (Tr. 65.) I find that 15
Respondent’s practice of sending employees home before they have worked a full 8-hour day at
least partially explains why in at least 8 weeks that Kamalo worked he did not reach 40 hours
though he reached over 30 hours. (Tr. 64–65; GC Exh. 2.)
Finally, with respect to Finch’s opinion that Kamalo got aggressive with him on February
12, Finch explained that it started when Finch admitted that he told Kamalo that “if he [Kamalo] 20
had bigger problems, then his [Kamalo’s] services were no longer needed.” (Tr. 66, 172.) Next
Finch admits that he discharged Kamalo in part because he “became” aggressive, and later
clarifying that this characterization referred to Kamalo’s “using the Labor Board as a threat to
me.” (Tr. 66–67.) As referenced above, Finch began the conversation that morning asking
Kamalo about his statement to other employees suggesting that the employees go to the Labor 25
Board if paychecks are delayed. Kamalo’s version of the February 12 conversation is much
more believable given my observation of both witnesses at hearing and Finch’s concurring
testimony that he first raised the Labor Board issue with Kamalo.
In sum, Finch’s version of the underlying facts as to what occurred on February 12, is
rejected as unreliable and changing as to his explanations for terminating Kamalo. I find that 30
Finch was upset that he heard that Kamalo had threatened to go to the Labor Board if
Respondent continued to delay employee paychecks and Finch fired Kamalo for this alone.
Finch created his own problem of employees not working 40 hours a week by not having enough
work to keep employees fully employed and because his facility was not protected from the
elements including bad weather. All employees had the same or worse work performance issues 35
as Kamalo but only Kamalo mentioned going to the Labor Board to help the group of employees
in receiving backpay or simply insisting that weekly paychecks be paid to employees on time.
Finch never bothered to discipline any employee in response to any alleged bad work
performances. Finch and not Kamalo became upset on February 12, when Kamalo did not
simply agree when Finch told him that his employees, who Finch views the same as family 40
members, should come to him directly with work problems such as delayed paychecks rather
than seek assistance from the Board.
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ANALYSIS
I. Credibility
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the 5
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. My 10
credibility findings are generally incorporated into the findings of fact set forth above.
Kamalo testified in a direct and forthright manner and his testimony did not waver on
cross-examination. For example, Kamalo’s testimony was more believable that Finch did not
keep Respondent’s employees informed in early 2015, that their paychecks would be delayed
from January 23, through February 6, except for direct questions that Kamalo asked Finch when 15
he occasionally saw him at work. Finch’s statement that he kept Respondent’s employees
informed during this time period of financial difficulties and status of delayed paychecks is not
credible nor is Finch’s statements that because of McAllister’s shoddy repair work in January, all
employees should have known or somehow assumed that paychecks would be delayed. (Tr. 278.)
There is no evidence presented to support a finding that Respondent’s employees were aware of 20
Finch’s net worth or ability to withstand financial problems in early 2015.
I also reject as self-serving, Finch’s statement that he knew Kamalo was experiencing
financial problems so Finch helped Kamalo by giving him a cash advance of $250 on January
30. (Tr. 279.) I find that all Respondent’s employees were experiencing financial problems from
delayed paychecks as they were given no advance warning of the delayed paychecks and needed 25
to pay their weekly rent and other bills.9
I also reject Finch’s testimony that Kamalo was aggressive with him on February 10 and
that Finch told only Kamalo to take the next day February 11, off allegedly due to his aggressive
tone and Kamalo needing to figure out how to handle a process server at his house. (Tr. 280–
281.) Neither Melvin’s testimony nor Respondent’s time and attendance records showing that 30
other employees worked on February 11, were produced at hearing to confirm Finch’s statements
here and Kamalo was quite convincing that the reason Finch called a meeting on February 10, at
the end of the day was to announce to all employees that on Wednesday, February 11,
Respondent had no work for all employees and for them to take the day off and if for some
reason Finch had any new business to handle and he needed to call-in an employee on February 35
11, he would call them as needed because there was not enough work on February 11. (Tr. 166–
167.)
Finally, I reject Finch’s statements concerning the purpose of his February 12 meeting
with Kamalo, the February 12 discussion, and his changing reasons for terminating Kamalo as

9
At Kamalo’s hourly rate of $9, it is reasonable to presume that he and probably other Respondent employees
relied on receiving a weekly paycheck and lived paycheck-to-paycheck and would suffer severe financial problems
connected with a sudden unannounced paycheck delay of 2 weeks.
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untrue, inconsistent with Kamalo’s more believable testimony, and unsupported by the record.
Finch states that he met with Kamalo to discuss Kamalo’s outburst and disrespect toward him on
February 10 apparently in the presence of all other Respondent employees including Melvin who
did not confirm a February 10 outburst at work by Kamalo. (Tr. 283–286.) I further find it
telling that Finch apparently told Kamalo that one reason he was being terminated was because 5
Kamalo only thought of his own bills and focused entirely on himself and therefore was not a
company/family member-like employee that Finch preferred. (Tr. 285–286.) Consequently, even
at hearing, several months after Kamalo’s termination, Finch failed to see any fault with an
employee’s delayed paycheck if business conditions warranted such a delay because at
Respondent, if the owner does not have enough business and cash flow to pay its employees 10
earned wages in a timely manner, Finch believed that each employee should take one for the
company, incur backpay without accrued interest, and not complain about delayed paychecks or
threaten or actually go to the Board for assistance else be subject to termination for not being a
company/family-member employee.
II. On January 28 and January 30, 2015, Kamalo Engaged in Protected Concerted Activity15
for the Purpose of Mutual Aid and Protection by Seeking the Assistance or Support of
Co-Workers McAllister and/or McNamara About Delayed Paychecks and About the
Possibility of Complaining Directly to Respondent or Pursuing Remedies at the Board
A. Protected Concerted Actions20
Complaint paragraph 4(a) alleges that from about January 23, 2015, through about
February 12, 2015, Respondent’s employee Kamalo engaged in concerted activities with other
employees for the purposes of mutual aid and protection, by, among other ways, raising with
Respondent and discussing among themselves about wages, paycheck delays, and the
possibility of going to and pursuing remedies through the Board.25
To be protected under Section 7 of the Act, employee conduct must be both “concerted”
and engaged in for the purpose of “mutual aid or protection.” Fresh & Easy Neighborhood
Market, 361 NLRB No. 12 at p. 3 (2014). Although these elements are closely related,
precedent makes clear that they are analytically distinct. See Summit Regional Medical Center,
357 NLRB No. 134, slip op. at 3 (2011). Whether an employee’s activity is “concerted” 30
depends on the manner in which the employee’s actions may be linked to those of his
coworkers. See NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984); Meyers Industries,
268 NLRB 493, 497 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented Meyers Industries, 281 NLRB 882,
887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. 35
denied 487 U.S. 1205 (1988). The Supreme Court has observed, however, that “[t]here is no
indication that Congress intended to limit [Section 7] protection to situations in which an
employee’s activity and that of his fellow employees combine with one another in any particular
way.” NLRB v. City Disposal Systems, 465 U.S. at 835. The concept of “mutual aid or
protection” focuses on the goal of concerted activity; chiefly, whether the employee or 40
employees involved are seeking to “improve terms and conditions of employment or otherwise
improve their lot as employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
In Meyers I, the Board defined concerted activity as that which is “engaged in with or on
the authority of other employees, and not solely by and on behalf of the employee himself.”
JD(SF)–04–16
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Meyers I, 268 NLRB at 497. In Meyers II, the Board clarified that the Meyers I definition of
concerted activity includes cases “where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bringing truly group complaints to the
attention of management.” Meyers II, 281 NLRB at 887. The requirement that, to be concerted,
activity must be engaged in with the object of initiating or inducing group action does not5
disqualify merely preliminary discussion from protection under Section 7. In this regard,
“inasmuch as almost any concerted activity for mutual aid or protection has to start with some
kind of communication between individuals, it would come very near to nullifying the rights of
organization and collective bargaining guaranteed by Section 7 of the Act if such
communications are denied protection because of lack of fruition.” Mushroom Transportation 10
Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964). In addition, it is well established that “the
activity of a single employee in enlisting the support of his fellow employees for their mutual
aid and protection is as much ‘concerted activity’ as is ordinary group activity.” Whittaker
Corp., 289 NLRB 933, 933 (1988), quoting Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d
1357, 1365 (4th Cir. 1969).15
It is well established that wage discussions are “inherently concerted.” Automatic Screw
Products Co., 306 NLRB 1072, 1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992). Here,
Kamalo sought his coworkers’ assistance in eliciting group concerns or action in obtaining more
information from Respondent as to when they could expect to receive their delayed paychecks
and possibly seeking outside assistance with the Labor Board to get paid as the delay continued. 20
This involved Kamalo’s communications with his coworkers with a concerted plan of action of
approaching Finch for more information as to when they would receive their delayed paychecks
or going to the Labor Board for assistance in getting the backpay owed by Respondent. Even
under Myers II, and its progeny, Kamalo’s conduct in approaching his coworkers on January 28,
and January 30, to seek their support of his efforts regarding this shared workplace concern 25
would constitute concerted activity. See Tr. 154–158, 219–221, 235. It is irrelevant that
Kamalo’s coworkers did not expressly join in his efforts to hasten payment of their delayed
paychecks either by going directly to Respondent or to the Labor Board although it is apparent
that at least one of these coworkers either spoke to Melvin who relayed a message to Finch or
spoke directly to Finch and communicated the discussions that were had on January 28, and 30
January 30, wherein the employees considered going to the Labor Board if their paychecks
continued to be delayed or were delayed in the future. Solicited employees do not have to agree
with the soliciting employee or join that employee’s cause in order for the activity to be
concerted. See Mushroom Transportation, 330 F.2d at 685; Circle K Corp., 305 NLRB at 933;
Whitaker Corp., 289 NLRB at 934; and El Gran Combo, 284 NLRB at 1117. Nor do the 35
solicited employees have to share an interest in the matter raised by the soliciting employee for
the activity to be concerted. See El Gran Combo, 284 NLRB at 1117; and Hintze Contracting
Co., 236 NLRB 45, 48 (1978), enfd. mem. 1979 WL 32447 (9th Cir. 1979). Further, the
protected, concerted nature of an employee’s complaint to management is not dependent on the
merit of such a complaint. See Spinoza, Inc., 199 NLRB 525, 525 (1972), enfd. 478 F.2d 140140
(5th Cir. 1973).
Having found that Kamalo’s discussions with his coworkers on January 28, and
January 30, were concerted activities based on the totality of the record evidence, I now turn to
the issue of whether Kamalo’s concerted activities were engaged in for the purpose of “mutual
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aid or protection” under Section 7 of the Act. The Board has expanded the scope of this
provision as follows:
We hold that an employee seeking the assistance or support of his or her coworkers in
raising a sexual harassment complaint is acting for the purpose of mutual aid or
protection. This decision applies equally to cases where, as here, an employee seeks to 5
raise that complaint directly to the employer, or, as in Holling Press, to an outside
entity.
Fresh & Easy Neighborhood Market, Inc., supra at p.7.
In this case, I find that Kamalo’s action was for the purpose of mutual aid or protection
under Section 7 of the Act by seeking the assistance and support of coworkers McAllister and 10
McNamara on January 28, and January 30, in their discussions that raised their shared delayed
paycheck complaint and sought to bring this complaint directly to Finch as Respondent or to the
Labor Board as an outside entity for assistance. In addition, since all of the employees had
delayed paychecks, Respondent through Finch had reason to know that more than a single
employee was involved when Finch confronted Kamalo about Kamalo’s discussion with his 15
coworkers on February 12, 2015.
B. Kamalo’s Threat to Take the Group Complaint of Delayed Paychecks to the Labor
Board Is Protected and Adequate Under the Circumstances of This Case to Mean the
National Labor Relations Board, and, in Particular, Region 28 in Phoenix, AZ
Respondent argues that even if Kamalo told his coworkers that he might seek assistance 20
from the Labor Board if Respondent continued its practice of delaying paychecks and that
Respondent later interrogated and discharged Kamalo for this statement, neither interrogation nor
discharge for such reason are violations of Sections 8(a)(1) or 8(a)(4) of the Act because those
sections do not extend protection to employees who resort to or threaten to resort to any agency
other than the Board. (R. Br. at 17–19, 25–26.)25
Respondent’s argument improperly relies on the decision in Inked Ribbon Corp., 241
NLRB 7, 13 (1979). That case is factually distinguishable from the facts in this case. In Inked
Ribbon Corp, the Board affirmed an ALJ decision that found no evidence to support the assertion
made in the complaint that the respondent understood that a threat to go to the Labor Department
(not Labor Board as here) for assistance of an employee’s grievance was understood as a threat 30
to go to the Board. Id.
Contrary to Respondent’s position (at R. Br. at 3.), it is well established that an employee
need not specifically reference the “National Labor Relations Board” in order for a statement by
the employee about contacting the Board to be protected under the Act. Here, as of February 12,
Finch learned of his employees’ threat through Kamalo was to go to the Labor Board for 35
assistance with the group’s concern of current or future delayed paychecks. Kamalo reiterated
his intent to seek assistance from the “Labor Board” directly to Finch. Next, Kamalo actually
went to the local office at Region 28 of the Board in Phoenix, Arizona, where Kamalo filed his
charge the very next day.
I find that in these circumstances, Kamalo’s reference to seeking assistance from the 40
Labor Board is sufficient to bring such statement within the broad protections of Section 8(a) of
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the Act. “[I]t is generally known that the Labor Board is the agency to which workers take their
complaints.” Goeman America, Inc., 314 NLRB 504, 508 (1994); see also Hi-Craft Clothing
Co., 251 NLRB 1310, 1317 (1980)(Same); Overseas Motors, Inc., 260 NLRB 810, 813–814
(1982)(Same); Book Covers, Inc., 276 NLRB 1488, 1492 (1985)(Same).
III. Interrogation of Kamalo5
Complaint paragraphs 4(a) – (c) and 5 allege that on about February 12, 2015,
Respondent, by Finch, at Respondent’s facility, interrogated its employees about their protected,
concerted activities regarding wages, working conditions, and terms of employment and about
going to and pursuing remedies through the Board and that because of this conduct Respondent
interfered with, restrained, or coerced employees in the exercise of their rights guaranteed in 10
Section 7 of the Act in violation of Section 8(a)(1) of the Act.
The test for determining whether questioning of an employee violates Section 8(a)(1) of
the Act is whether it would reasonably tend to coerce employees in the exercise of their Section
7 rights. Grand Canyon University, 362 NLRB No. 13 slip op. 1 (2015), citing Hanes Hosiery,
Inc., 219 NLRB 338, 338 (1975). Circumstances considered in evaluating the tendency to15
interfere include the (1) background, (2) the nature of the information sought, (3) the identity of
the questioner, and (4) the place and method of the interrogation. Sunnyvale Medical Clinic, 277
NLRB 1217, 1218 (1985); Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984).
In applying the Rossmore considerations, I find that Finch’s February 12 interrogation of
Kamalo was coercive given that Kamalo was questioned by Respondent’s owner/supervisor who 20
made all decisions about hiring and firing employees alone in the supervisor’s office away from
all other employees. Furthermore, it is clear that this was no casual, friendly or joking
conversation as Finch started the meeting appearing upset when he spoke to Kamalo and
questioned him repeatedly about what Finch had heard from other employees that Kamalo had
considered going to the Board for assistance if Finch continued to delay employee paychecks. 25
Rather than stop there with his alerting Kamalo that Finch knew that Kamalo had previously
mentioned to other employees going to the Board which Finch’s tone of voice and mannerisms
showed his being upset, Finch also told Kamalo that Finch believes that each employee should
take one for the company and not complain about delayed paychecks or threaten or actually go to
the Board for assistance else be subject to termination for not being a company employee. 30
As such, I conclude that this conversation amounted to a coercive interrogation in
violation of Section 8(a)(1) of the Act as Finch made it clear to Kamalo that Section 7 rights did
not apply at Respondent’s facility and emphasized an employer’s ultimate threat, that he
controlled Kamalo’s employment. The entire February 12 conversation established that
Respondent’s interrogation was coercive and violated Section 8(a)(1) of the Act. See Gelita 35
USA Inc., 352 NLRB 406, 411 (2008)( Employer violated Section 8(a)(1) where it coerced
employee where high management official with the Company, among other things, advanced no
legitimate reason for her inquiries); see also Hi-Craft Clothing Co., 251 NLRB 1310, 1317
(1980)(Employer violated Section 8(a)(1) where it coerced employees in their right to free access
to the Board’s processes after they had threatened to go to the Labor Board).40
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IV. Discharge of Kamalo
A. Section 8(a)(4) Violation
Complaint paragraphs 4(a), (d) – (f), 5, and 6 allege that on about February 12, 2015,
Respondent, by Finch, discharged Kamalo because Kamalo engaged in protected, concerted 5
activities regarding wages, working conditions, and terms of employment and about going to and
pursuing remedies through the Board or because Respondent believed that Kamalo intended to
contact or consult with the Board or file a charge with the Board and Respondent has been
discriminating against employees for considering or intending to contact or consult the Board
and file charges under the Act in violation of Section 8(a)(4) and (1) of the Act.10
Section 8(a)(4) of the Act makes it unlawful, “to discharge or otherwise to discriminate
against an employee because he has filed charges or given testimony under this Act.” When an
employer discharges an employee ostensibly for conduct unrelated to protected activity, the
Board must determine whether an unlawful consideration— the protected activity of the
employee or other employees—entered into the decision making process and, if so, whether it 15
affected the outcome of that process. In such situations, the Board follows the mixed motive
analysis articulated in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
Under Wright Line, the General Counsel must satisfy an initial burden of showing by a 20
preponderance of the evidence that the employee’s protected activity was a motivating factor in
an employer’s adverse action. If the General Counsel meets that initial burden, the burden shifts
to the employer to show it would have taken the same action even absent the employee’s
protected activity. The employer does not meet its burden merely by showing it had a legitimate
reason for the action; it must demonstrate that it would have taken the same action in the absence 25
of the protected conduct. And if the employer’s proffered reasons are pretextual—either false or
not actually relied on—the employer fails by definition to meet its burden of showing it would
have taken the same action for those reasons, absent the protected activity. See Alternative
Energy Applications, cited above, 361 NLRB No. 139, at slip op. 3, citing authorities. It has
long been recognized that where an employer’s reasons are false, it can be inferred “that the 30
[real] motive is one that the employer desires to conceal—an unlawful motive—at least
where . . . the surrounding facts tend to reinforce that inference. See Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Finally, a trier of fact may not only reject a
witness’ story, but also find that the truth is the opposite of that story. Pratt (Corrugated
Logistics), LLC, 360 NLRB No. 48, slip op. at 11–12 (2014), and cases there cited. 35
Applying Wright Line here, I find that the General Counsel has clearly established that
the employees’ protected activity on January 28, and January 30, was the motivating factor in
Respondent’s decision to terminate Kamalo. There is no doubt, as set forth above, that Finch
exhibited animus against Kamalo’s protected concerted activity while terminating him on
February 12, 2015, and in fact terminated him for that very protected activity.40
I also find that the General Counsel carried his burden of showing discriminatory motive.
With respect to timing, the Board has held that where the discrimination occurs shortly after the
discriminatee’s protected activities occurred and were known to the Employer, this represents
JD(SF)–04–16
18
significant evidence of an unlawful motivation. Such coincidence is time between Employer’s
knowledge of the employee’s protected activity and his discharge is strong evidence of unlawful
motive for the discharge. Trader Horn of New Jersey, Inc., 316 NLRB 194, 198 (1995). Here,
Finch met with Kamalo on February 12, and revealed to him for the first time Finch’s knowledge
of Kamalo’s protected activity and terminated him that same day. 5
As set forth above, Respondent’s attendance and disciplinary policies for its employees
were nonexistent and Finch readily admitted so as no employee had ever received written or
formal discipline before February 12, 2015. To discharge Kamalo on February 12, in these
circumstances suggests the reason for the discharge was not related to Kamalo’s work
performance or attendance but because the discharge was discriminatorily motivated and related 10
to Kamalo’s earlier protected activity and stated intention of seeking assistance from the Board.
McAllister’s shoddy work performance had cost Respondent much more financial hardship than
anything Kamalo had done. All of the employees missed work and used their cellphones while
on the clock. In view of the timing of the disparate treatment discussed above, I conclude that
the General Counsel has established conclusive evidence that a substantial or motivating factor 15
in Kamalo’s discharge was his announced intention to seek assistance from the Board for the
employees’ delayed paychecks.
Also, the Respondent’s animus toward the employee’s protected activity is amply
demonstrated by the pretextual nature of its proffered reasons for Kamalo’s termination, its
disparate treatment of Kamalo, and its shifting reasons for his discharge. I also find that the 20
Respondent’s unlawful interrogation provides additional evidence of animus. Atelier
Condominium, 361 NLRB No 111, slip op. at 5 (2014), and R.J. Corman Railroad Construction,
349 NLRB 987, 989 (2007).
A finding of pretext necessarily means that the reasons advanced by the employer either
did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful 25
motive established by the General Counsel. Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982). Thus, if the evidence establishes that the reasons given for
the Respondent’s discharge of Kamalo are pretextual as they are here, the Respondent fails by
definition to show that it would have taken the same action for those reasons, absent the
protected conduct, and there is no need to perform the second part of the Wright Line analysis. 30
Rood Trucking, Co., 342 NLRB 895, 898 (2004); Golden State Foods Corp., 340 NLRB 382,
385 (2003). As stated above, I find that the evidence here establishes that the reasons for
Respondent’s February 12 discharge of Kamalo are pretextual and that the Respondent fails by
definition to show that it would have taken the same action for those reasons, absent the
protected conduct, and there is no need to perform the second part of the Wright Line analysis in 35
this case.
Moreover, once Finch discovered that Kamalo was encouraging his coworkers to consult
the Board if their paychecks were ever again delayed, Respondent terminated him. I further find
that the Respondent’s swift discharge of Kamalo was the product of its unlawful effort to muzzle
Kamalo and ensure that any future threats to go to the Board with further paycheck delays did 40
not lead to additional group action. An employer violates the Act when it acts to prevent future
protected activity. Parexel International, LLC., 356 NLRB No. 82, slip op. at 5, fn. 9 (2011).
“After all, the suppression of future protected activity is exactly what lies at the heart of most
unlawful retaliation against past protected activity.” Id. at slip op. at 5. I further find that in this
JD(SF)–04–16
19
case the prevention of future discussions among employees about wages is closely connected to
the specific allegations of the complaint.
In view of the overwhelming evidence here, the record does not support a finding that
Respondent satisfied its substantial defense burden. See e.g., Bally’s Atlantic City, 355 NLRB
1319, 1321 (2010), (when there is a strong showing of unlawful motivation, the respondent’s 5
defense burden is substantial).
Alternatively, I note that regardless of whether the Respondent’s work performance and
attendance policies allowed numerous absences, late arrivals, with or without prior notice,
shoddy workmanship, or use of personal cellphones while on the clock, the Respondent failed to
meet its burden of showing that the discharge of Kamalo was similar to the discipline of other 10
employees who violated the work performance and attendance policies, sometimes in a more
egregious manner than Kamalo, but did not engage in protected, concerted activity. I also note
that the Wright Line standard does not require a showing of particularized animus toward the
employee’s specific protected activity. See Libertyville Toyota, 360 NLRB No. 141, slip op. at 4
fn. 10 (2014), enfd. 801 F.3d 767 (7th Cir. 2015); Encino Hospital Medical Center-Prime, 360 15
NLRB No. 52, slip op. at 2, fn. 6 (2014).
Accordingly, the evidence does not establish that the Respondent would have discharged
Kamalo based solely on his work performance issues even in the absence of Kamalo’s protected
concerted activity. Therefore, I find that the discharge of Kamalo was motivated by his
protected concerted activity in violation of his rights under Section 8(a)(4) and (1) of the Act. 20
Moreover, the discharge of Kamalo because he made known a decision to seek Board assistance
on behalf of himself or for himself and others is an independent violation of Section 8(a)(4). See
Hi-Craft Clothing Co., 251 NLRB 1310, 1317 (1980)(Employer violated Section 8(a)(4) where
employees discharged for threatening to go to the Labor Board); Hoover Design Corporation,
167 NLRB 461, 461–462 (1967).25
B Section 8(a)(1) Violation
During the termination meeting on February 12, Finch told Kamalo that he should have
first taken his delayed paycheck complaints to Finch as Respondent’s owner and chief operating
officer as a family member would before taking his complaints to the outside world and the
Board. (Tr. 66.) 30
Section 8(a)(1) of the Act states:
It shall be an unfair labor practice for an employer—(1) to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in section 7.
Animus or antiunion motivation and the success of any threat are not essential elements
in finding a violation of Section 8(a)(1) of the Act. The Board found in American Freightways 35
Co., 124 NLRB 146, 147 (1959):
Interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn
on the employer’s motive or on whether the coercion succeeded or failed.
JD(SF)–04–16
20
The test is whether the employer engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights under the Act. In Public Service Co. of
Colorado, 301 NLRB 238, 241 (1991), it was found that the employer told a union steward that
if he had to answer, “. . . all your petty first step grievances, I will not pay [Repsher].’’ The
Board affirmed the ALJ who found that the comment cast a chilling effect on the union steward’s 5
pursuit of his duties and violated Section 8(a)(1) of the Act. Here, Finch’s statement to Kamalo
amounted to telling Kamalo that Respondent would rather insist its employees come to
management with their group concerns such as delayed paychecks and thus attempted to chill
Kamalo in the exercise of his rights to consult or seek remedies at the Board in violation of
Section 8(a)(1) of the Act.10
Moreover, the record clearly establishes that in attempting to collect unpaid
compensation in January 2015, employees were acting in concert for their mutual aid within the
meaning of Section 7. That Respondent through Finch eventually discovered that the delayed
paychecks and the intention to go to the Board were the subjects of such activities is equally
apparent in this case. For example, Finch testified that as of February 12, he knew and 15
questioned Kamalo about his discussions with Respondent’s employees and Kamalo’s intention
to go to the Board if paychecks continued to be delayed or were further delayed in the future. I
find that Kamalo’s threat to go to the Board triggered Finch’s decision to discharge him and was
an integral part of the concerted activity demonstrating employee unwillingness to put up with
delayed paychecks. Consequently, I further find that Kamalo’s discharge for his threat to go to 20
the Labor Board also violates Section 8(a)(1) of the Act.
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. By calling Robert Kamalo into his office on February 12, 2015, to ask about his 25
statement that he told other employees that they had the option of going to the Labor Board for
assistance for their unpaid delayed paychecks, Respondent through Jayson Finch interrogated
Robert Kamalo in violation of Section 8(a)(1) of the Act.
3. By discharging employee Robert Kamalo because of his protected concerted activities
involving his mentioning to his fellow employees that they had an option to go to the Labor 30
Board for assistance in connection for their delayed paychecks, the Respondent violated Section
8(a)(4) and (1) of the Act.
4. By discharging employee Robert Kamalo because of his protected concerted activities
involving his mentioning to his fellow employees that they had an option to go to the Labor
Board for assistance in connection for their delayed paychecks, the Respondent violated Section 35
8(a)(1) of the Act and interfered with, restrained, and coerced Robert Kamalo in the exercise of
the rights guaranteed in Section 7 of the Act.
5. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
JD(SF)–04–16
21
REMEDIES
Having found that the Respondent has engaged in certain unfair labor practices, I find
that they must cease and desist such practices and take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having concluded that the Respondent is responsible for the unlawful 5
suspension and discharge of employee Robert Kamalo, the Respondent must offer him
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. I also order that Respondent make Kamalo whole, with interest, for any loss
of earnings and other benefits he may have suffered as a result of the discrimination against him. 10
Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). In addition, the
Respondent shall compensate Kamalo for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social Security Administration allocating the 15
backpay award to the appropriate calendar quarters. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014). The Respondent shall also be required to expunge from its
files any and all references to the suspension and discharge, and to notify Kamalo in writing that
this has been done and that the discharge will not be used against him in any way. The
Respondent shall also post the notice in accord with J. Picini Flooring, 356 NLRB No. 9 (2010). 20
On these findings of fact, conclusions of law, and upon the entire record, pursuant to
Section 10(c) of the Act, I hereby issue the following recommended.10
ORDER
The Respondent, Red Devil Auto & Fleet Repair, LLC, Surprise, Arizona, its officers,
agents, successors, and assigns, shall 25
1. Cease and desist from
(a) Unlawfully interrogating Respondent’s employees because they mention to
coworkers that they have an option to go to the Board for assistance in connection for their
delayed paychecks;
(b) Unlawfully discharging or otherwise discriminating against Respondent’s 30
employees because they mention to coworkers that they have an option to go to the Board for
assistance in connection for their delayed paychecks; and
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the right guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act: 35

10
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD(SF)–04–16
22
(a) Within 14 days from the date of this Order, offer employee Robert Kamalo
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 any other rights or
privileges previously enjoyed.
(b) Make employee Robert Kamalo whole for any loss of earnings and other benefits 5
suffered as a result of the discrimination against him, as set forth in the remedy section of this
decision.
(c) Compensate employee Robert Kamalo for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and submit the appropriate report to the Social Security
Administration so that when backpay is paid to Kamalo, it will be allocated to the appropriate 10
calendar quarters.
(d) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharge, and within 3 days thereafter, notify employee Kamalo in writing that this
has been done and that the loss of employment will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional 15
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
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.
(f) Within 14 days from the date of this order, post at its facilities in and around 20
Surprise or Glendale, Arizona, copies of the attached notice marked “Appendix”11. Copies of the
notice, on forms provided by the Regional Director for Region 28, after being signed by the
Respondent’s authorized representative, shall also 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 25
notices are not altered, defaced, or covered by any other material. In addition to physical posting
of paper notices, notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these 30
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
February 12, 2015.

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)–04–16
23
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. February 3, 20165
Gerald M. Etchingham
Administrative Law Judge
10
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 do anything that interferes with these rights. More particularly:
WE WILL NOT you about your or other employees’ discussions about working conditions, wages,
pay schedules, or other terms of employment.
WE WILL NOT interrogate you because you engage in activities or make statements to other
employees to the effect that you will go to the National Labor Relations Board for assistance for
any delayed payment of a paycheck.
WE WILL NOT discharge you because you engage in activities or make statements to other
employees to the effect that you will go to the National Labor Relations Board for assistance for
any delayed payment of a paycheck.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE WILL offer Robert Kamalo 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 any
other rights and/or privileges he previously enjoyed.
WE WILL make Robert Kamalo whole for the wages and other benefits he lost as a result of his
discharge.
WE WILL expunge and physically remove from our files all references to the February 12, 2015
discharge of Robert Kamalo, notify him, in writing, that such action has been accomplished and
that the expunged material will not be used as a basis for any future personnel action against him
or made reference to in any response to any inquiry from any employer, prospective employer,
employment agency, unemployment insurance office, or reference-seeker.
RED DEVIL AUTO & FLEET REPAIR, 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.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-146421 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.