Temecula Mechanical, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 17, 2012

21-CA-039667 (N.L.R.B. May. 17, 2012)

JD(SF)–23–12
Temecula, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
TEMECULA MECHANICAL, INC.,
and Cases 21-CA-39667
21-CA-39834
PLUMBERS AND PIPEFITTERS LOCAL 398,
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO
Lisa McNeill, Esq., for the General Counsel.
Thomas Lenz, Esq. and Kristen Silverman, Esq.
(Atkinson, Andelson Loya, Ruud and Romo)
Cerritos, California, for the Respondent.
Charles Stratton, Organizer,
Los Angeles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Temecula, California,
on February 7 and 8, 2012, upon the order consolidating cases, consolidated amended complaint and
notice of hearing (complaint) issued on July 29, 2011, by the Acting Regional Director for Region 21.
The complaint alleges that Temecula Mechanical, Inc. (Respondent) violated Section 8(a)(1) and
(3) of the Act by creating an impression among its employees that their union activities were under
surveillance, by interrogating an employee about union activities, by telling an employee that they were
laid off because of their union activities, and by terminating Norman Guardado because of his protected
concerted or union activity.
Respondent filed a timely answer to the complaint stating it had committed no wrongdoing.
Upon the entire record, including the briefs from the Counsel for the General Counsel and
Respondent, I make the following. 1

1 On July 2, 2009, counsel for the General Counsel filed a motion to correct brief to the
Administrative Law Judge. No opposition was filed. The motion is granted.
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Findings of Fact
I. JURISDICTION
Respondent admitted it is a California corporation with an office and place business located in
Temecula, California, where it is engaged as a plumbing and site utility contractor. Annually,
Respondent in the course of its business operations purchased and received at its Sacramento facility
goods valued in excess of $50,000 which originated from points directly outside the State of California.
Based upon the above, Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admitted and I find that Plumbers and Pipefitters Local 398, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (Union) is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent is a family owned company that specializes in plumbing and site preparation work
for public entities. Patrick Leonard is Respondent’s owner/president and Pamela Leonard, Patrick’s
daughter, is Respondent’s corporate secretary, project manager, and estimator for bidding jobs.
Norman Guardado worked for Respondent since 2002 as a pipe tradesman. Guardado’s wife,
Sandra Covarrubias, worked for Respondent as an office clerical since 2007. Guardado and Covarrubias
were close friends of Pamela Leonard, they had known each other before Guardado began working for
Respondent, they socialized together frequently and Pamela Leonard was the godmother of their child.
The nature of the work Respondent performed for public works jobs entailed site work, pre-slab,
and top out work.
Site work, generally performed by pipe tradesmen, included trenching, installation of storm
drains, gas, sewer and water lines, and site cleanup. Pre-slab work involves underground plumbing
performed inside a building perimeter before the concrete slab is poured. Top out work is plumbing
performed in the building walls and ceilings after the slab has been poured. Pre-slab and top out work is
performed by apprentices and journeymen plumbers and includes installing gas, water and sewer lines,
connecting water heaters, and installing plumbing fixtures.
According to Guardado, during the time he worked for Respondent, while he never participated in
an apprenticeship program, he performed both apprentice and journeyman plumbing work that included
running pipe for water, gas and sewer lines, installing roof vents, condensation lines, water heaters, and
plumbing fixtures. While both Pamela and Patrick Leonard denied that Guardado performed apprentice
or journeyman plumbing, their testimony is contradicted by Delgado who worked side-by-side with
Guardado on the Banning job for nearly a year. Given Delgado’s ability to observe Guardado’s work on
a daily basis, I credit his testimony. There was no evidence adduced that Respondent ever disciplined
Guardado for conduct or work performance problems.
Since most of Respondent’s jobs were performed for public entities, prevailing wage law often
applied.
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In about February 2010, Respondent assigned Guardado to work at its Banning High School
jobsite in Banning, California. The Banning High School job was a prevailing wage job. Guardado did
both site work and top out work at the Banning job. Guardado worked most of the time with fellow
employee Esteban Delgado and Foreman Art Rivera. There were up to seven employees working for
Respondent at the Banning jobsite during the period early 2010 to mid-February 2011. The record does
not reflect exactly how many employees were working at the Banning jobsite during the period October
to December 2010.
Guradado’s union activities
Guardado, Delgado, and another of Respondent’s employees attended union meetings at the
Union’s facilities while they were employed at the Banning job. The first meeting took place in October
or November 2010. Respondent’s employees complained about payments that were not being made by
Respondent to their 401(k) accounts and about not being paid wages for the work they were doing.
Guardado told the union officials at the meeting what his wages were at the Banning job and what work
he was doing. The union officials told Guardado he was not being paid enough for the work he was
performing. Another union meeting took place 2 weeks later at the Union’s offices in Colton, California.
In addition to Guardado and Delgado, Respondent’s foreman, Rivera, attended this meeting. Once again
Guardado told the union officials the nature of the work he performed for Respondent at the Banning job,
that payments were not being made into this 401(k) account, and that health insurance was not being
provided. Rivera, Delgado, and Guardado all gave the Union copies of their paystubs from Respondent.
Representatives from Local 398 went to the Banning jobsite and spoke with Respondent’s
employees two to three times per month in October and November 2010. Local 398 representatives
spoke with Guardado and gave him a business card.
After the first union meeting, Local 398 Organizer Charles Stratton called the Piping Industry
Progress and Education Trust Fund, P.I.P.E., a trust fund under the auspices of Plumbers Union District
Council 16, that prevailing wages are paid on public works projects and requested a certified payroll for
Respondent from the Banning public works job.
In about November 2011, Respondent began receiving calls both from Sherri Patton, a labor
compliance contractor employed by the Banning Unified School District, and from the Department of
Labor concerning payment into employees’ 401(k) accounts at the Banning job. Patton advised
Respondent that the complaints were coming from an employee at the Banning job where Guardado,
Delgado, and Rivera worked. Patton requested a certified copy of Respondent’s payroll at the Banning
job. The failure to comply with prevailing wage law could result in Respondent’s payments being
withheld by the Banning Unified School District until there was proof of compliance. According to
Covarrubias, Guardado’s wife, and admitted by Pamela Leonard, Leonard told Covarrubias she was
trying to figure out who caused labor compliance to call Respondent. According to Trina Wellsandt,
Respondent’s office manager, Pamela Leonard asked Covarrubias if Guardado knew where the complaint
came from. Eventually, after Guardado was laid off, Patton made a finding that Respondent had paid
Guardado and three other employees outside their classifications on the Banning jobsite.
The Interrogations of Covarrubias
At about the time union officials began to visit the Banning jobsite in October and November
2010, on an almost daily basis from November to December 2010, Covarrubias said that Pamela Leonard
asked her if Guardado had talked to the Union in Banning, if Covarrubias had heard anything about the
Union, and, if Covarrubias knew what the Union was doing in Banning. Sometime between October
2010 and January 2011, Covarrubias overheard Pamela Leonard say that she received information from
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Respondent’s employee, Josh Stroud, identifying which of Respondent’s employees at a Riverside or
Banning jobsite had spoken to the Union. This appears to be the January 10, 2011 information Pamela
Leonard received from Stroud. During this period of time Covarrubias told Pamela Leonard that
Guardado had given the Union copies of his paystubs. According to Wellsandt, Covarrubias told her in
early January 2011 that Guardado was involved with the Union. While Pamela Leonard denies
interrogating Covarrubias about the Union or learning from Covarrubias that Guardado gave paystubs to
the Union, Leonard admits Covarrubias told Wellsandt that Guardado gave paystubs to the Union. I
credit Covarrubias’ testimony that Pamela Leonard interrogated her prior to December 17, 2010, about
both Guardado’s protected concerted union activity given that union officials were present at the Banning
job in November and December 2010. Leonard admitted she wanted to know which employees at the
Banning job had made complaints to labor compliance and asked Covarrubias who had made such
complaints. Given the presence of union agents at the Banning jobsite during the time when Covarubias
says she was interrogated about Guardado’s union activity, it is likely that the events occurred as
Covarrubias has testified.
The December 17, 2010 Layoff
On December 17, 2010, Guardado was terminated by Respondent’s president, Patrick Leonard.
During the entire time Guardado worked at the Banning jobsite he carpooled with Delgado who drove
since Guardado did not have a driver’s license. On December 17, 2010, Delgado and Guardado arrived
late to work. They encountered Patrick Leonard at the jobsite trailer who told Guardado they were late
and the dailies, reports of work done that day, were incorrect. Guardado said that Delgado prepared the
dailies and that he had to carpool with Delgado. Leonard told Guardado that the Company was going
down “because of employees like you.” He said they were always late and did not do things right.
Guardado told Leonard if he did not like it he could fire him on the spot. Both Guardado and Delgado
then went to work. Near the end of the workday on December 17, Patrick Leonard told Delgado that he
would be finishing the Banning job by himself because he was letting Guardado go. Delgado told
Leonard that he hoped Leonard got a replacement since he could not finish the Banning job by himself in
3 weeks. Leonard then went to where Guardado was running condensation lines and told him, “Well, you
know, we’re kind of slow at work right now and we need to let you go and we don’t have any work.”
Guardado replied, “Pat, . . . what do you mean, we have work. We’re not done here. We have other
jobs.” Leonard said, “Oh, no. We don’t have any more work.” Guardado left the job and has not
returned to work for Respondent.
Back at Respondent’s office on December 17, Covarrubias overheard a phone call that was on
speaker phone between Patrick and Pamela Leonard. Patrick said he had let Guardado go. Patrik said
Guardado was disrespectful and late for work and that was why he was let go. Pamela said, “Well I wish
you would have talked to me first.” Pamela Leonard then took the call off the speaker phone and
Covarrubias could hear no more. Five minutes later Pamela Leonard came out of her office and told
Covarrubias that Guardado had been fired. Pamela Leonard said she had sent Guardado a text to call her.
Pamela Leonard said that she told her father she “was not laying G off but was going to send Guardado to
the Hillcrest jobsite." Pamela Leonard said she called Jason McKeen, Respondent’s Hillcrest jobsite
foreman, and told him she was sending Guardado to Hillcrest. Pamela Leonard claims she told
Covarrubias to tell Guardado to go to Hillcrest. Covarrubias denied she was told to do this by Leonard.
Rather, Covarrubias testified that some time before Guardado’s layoff Pamela Leonard told her she
wanted Guardado to go to work at Hillcrest. I credit Covarrubias. This is consistent with Leonard’s
testimony that she had always intended to send Guardado to the Hillcrest job which had begun in
February 2009 and was completed in December 2011.
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December 20, 2010
According to Pamela Leonard, on December 20, she told Covarrubias that Guardado had not gone
to the Hillcrest job and Covarrubias said no, he does not want to work with Jason McKeen. (Respondent’s
Hillcrest jobsite foreman.) Leonard said that Guardado did not call her and Covarrubias replied that
Guardado did not want to talk. Guardado testified that if he had been offered work at Hillcrest, despite
his differences with McKeen, he would have taken the job because he needed the work. Pamela Leonard
admits she saw Guardado in the office on December 20 sometime between 4:30-5 p.m. but, never spoke
to him, offered him a job, or asked why he wasn’t at Hillcrest. Given the opportunity to speak to an old
friend, offer him work at the Hillcrest job, and resolve the dispute her father had created, I find it hard to
believe that Covarrubia told Pamela Leonard that Guardado had refused to work at Hillcrest.
December 21, 2010
Even assuming Guardado turned down the work at Hillcrest, the following day, Pamela Leonard
told Covarrubias that she still wanted to meet with Guardado. A meeting was scheduled for January
2011.
A few days later, Mary Lou Leonard, Patrick Leonard’s wife and Respondent’s vice president,
spoke with Covarrubias in Respondent’s office. Mary Lou told Covarrubias that Patrick let Guardado go.
She said “if we bring Guardado back would he come back and Covarrubias said he would.” According to
Mary Lou Leonard, Covarrubias responded that it was too late since the Union promised Guardado a job
as a welder.
January 10, 2011
Despite all of the allegations by Respondent that Guardado was not interested in working with
Respondent, according to Pamela Leonard on January 10, she tried to set up a meeting with Guardado
through Covarrubias. Covarrubias informed Leonard that Guardado wanted to meet with her. Meanwhile
Pamela Leonard was told by Respondent’s employee Stroud that both Delgado and Guardado were Union
salts. According to Leonard’s testimony at transcript 278, lines 12-18:
But, at this point, also—see, I had gotten back. This was my first day back. December
10 [sic] was my first day back. So there was a lot going on that day, obviously, with
getting that phone call from Josh. (Stroud) So, you know, now the Union was into—it
came into play that particular day. And, you know, we—I guess I more so wanted to talk
to Norman, (Guardado) but I did not call him personally myself, I never did.
Pamela Leonard admitted that in January 10, 2011, Stroud told her that Guardado and Leonard
were salting for the Union. Leonard told Wellsandt to prepare Delgado’s final checks. Leonard called
the Associated Building Contractors (ABC) and said that Guardado and Delgado were salts for the Union.
The ABC representative told Leonard to let Delgado go for lack of work. Leonard said she went to the
jobsite and initially told Delgado he was being let go for lack of work, but then admitted she was letting
him go because he and Guardado were working for the Union.
January 13, 2011
Pamela Leonard claims that on January 13, after she returned from lunch, Covarrubias told her
Guardado had come by to see her with a union business agent. Pamela Leonard says she asked
Covarrubias what Guardado wanted to do. Leonard asked if Guardado wanted to talk or to meet.
Leonard asked if they were still going to meet and asked Covarrubias if she or Covarrubias should text or
call him. Covarrubias replied that she would call Guardado. Later Covarrubias told Leonard that
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Guardado did not want to meet Leonard because he didn’t want to see Leonard cry. Leonard asked if she
should call Guardado but Covarrubias said Leonard should give it a little bit of time. (Tr. 273, ll 13-25,
274, ll1-8.) Covarrubias denied that this conversation occurred. I do not credit Leonard’s version of this
conversation. Pamela Leonard’s version is inconsistent with her testimony that on January 10, 2011,
Guardado agreed to meet with her but she never made further contact with him after the Union “came into
play” on January 10. Leonard’s testimony is further internally inconsistent in that Guardado had earlier
that day come into Respondent’s office to speak with her.
February 3, 2011
Also about a month after Guardado’s layoff on about February 3, 2011, he received a phone call
from Pamela Leonard while union agent Stratton was visiting. Leonard admitted that she had learned
from Covarrubias that a union agent was at Guardado’s house. Leonard admitted she then called
Guardado and stated that she knew a union agent was at his house. According to Guardado, Leonard
asked him what he was saying to the union agent. Leonard admitted she told Guardado “that the Union is
at your house today.”
February 25, 2011
On February 25, there was a meeting at Respondent’s office between Patrick and Pamela Leonard
and Delgado. According to Delgado, Pamela Leonard apologized for trying to lay him off. She said they
found out it wasn’t Delgado but Guardado who was working with the Union. While Patrick Leonard
denied this conversation took place, Pamela did not. I credit Delgado’s version.
B. The Analysis
The Alleged 8(a)(1) Conduct
Complaint paragraph 7(a) alleges that in December 2010 Pamela Leonard created the impression
that employees’ union activities were under surveillance.
No evidence was proffered to support this complaint allegation. Accordingly, I will recommend
it be dismissed.
Complaint paragraph 7(b) alleges that in December 2010 Pamela Leonard interrogated an
employee about the union activities of other employees.
In Rossmore House, 269 NLRB 1176, 1177 (1984), the Board established the standard for
determining if employer interrogations violate Section 8(a)(1) of the Act. The Board held:
[T]he basic test for evaluating whether interrogations violate the Act: whether under all of the
circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act.
The Rossmore House test is an objective one and does not rely on the subjective aspect of
whether the employee was in fact intimidated. Multi-Ad Services, 331 NLRB 1226, 1227-1228 (2000).
In the instant case, Pamela Leonard, who was the de-facto chief operating officer of Respondent,
in Respondent’s offices over a period of 3 months repeatedly interrogated Covarrubias’ about Guardado’s
union and other protected activities, including the filling of a complaint with the Banning School District
compliance officer. This interrogation was not innocent brainstorming. The consequences of a violation
of prevailing wage laws had serious financial consequences for Respondent including the withholding of
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payment from the Banning School District. Moreover, as demonstrated in January 2011, Respondent
reacted to Delgado and Guardado’s union activity by Pamela Leonard’s threat to fire Delgado.
On the basis of all of the above facts, I find that Leonard’s repeated interrogations of Covarrubias
reasonably tended to restrain, coerce, or interfere with both Covarrubias and Guardado’s rights
guaranteed by the Act and violated Section 8(a)(1) of the Act as alleged. President Riverboat Casinos of
Missouri, 329 NLRB 77 (1999).
Complaint paragraph 7(c) alleges that on January 2011 Pamela Leonard told an employee that the
employee was being laid off because of the employee’s union activities.
On January 10, 2011, Leonard was told by employee Stroud that Delgado and Guardado were
Union salts. Leonard quickly understood that this meant they worked for the Union and she immediately
prepared Delgado’s final checks as part of her intent to fire him. Leonard admits she told Delgado she
was going to fire him because he was working for the Union. Such a threat to terminate an employee for
engaging in union activities violates Section 8(a)(1) of the Act. Metro One Loss Prevention Services
Group, 356 NLRB No. 20, slip op. at 14 (2010). I find that in making this threat, Respondent violated
Section 8(a)(1) of the Act as alleged.
Complaint paragraph 7(d) alleges that in February 2011 Pamela Leonard created an impression
that employees’ union activities were under surveillance.
In Frontier Telephone of Rochester,Inc., 344 NLRB 1270, 1276 (2005), the Board defined when
an employer creates an impression that its employees union activities are under surveillance:
In determining whether an employer has unlawfully created the impression of surveillance of
employees’ union activities, the test that the Board has applied is whether, under all the relevant
circumstances, reasonable employees would assume from the statement in question that their
union or other protected activities had been placed under surveillance. Flexsteel Industries, 311
NLRB 257 (1993); Schrementi Bros., 179 NLRB 853 (1969). The essential focus has always
been on the reasonableness of the employees’ assumption that the employer was monitoring their
union or protected [activaties]. As with all conduct alleged to violate Section 8(a)(1), the critical
element of reasonableness is analyzed under an objective standard, not the subjective reaction of
the individual involved, to determine whether an employer’s actions tend to restrain, coerce, or
interfere with the Section 7 rights of employees. KSM Industries, 336 NLRB 133 (2001);
Sunnyside Home Care Project, 308 NLRB 346 fn. 1 (1992); El Rancho Market, 235 NLRB 468,
471 (1978), enfd. mem. 603 F.2d 223 (9th Cir.1979).
On February 25, 2011, Pamela Leonard told Delgado they found out it wasn’t Delgado but
Guardado who was working with the Union. Delgado was in Respondent’s office only to pick up his
paycheck. Not only was there no reason to tell Delgado this information but also Leonard failed to tell
Delgado the source of her information. As the judge, with Board approval, in Metro One Loss
Prevention, supra, noted in finding evidence of creating an impression of surveillance at slip op. at 14:
When an employer tells employees that it is aware of their union activities, but fails to tell them
the source of that information, the employer violates Section 8(a)(1). This is because employees
are left to speculate as to how the employer obtained its information, causing them reasonably to
conclude that the information was obtained through employer monitoring.
The Board applies a broad definition of the term “employee” under Section 2(3) of the
Act that includes not only current but prospective and former employees. Redwood Empire, Inc.,
296 NLRB 369, 391 (1989).
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Here too, I conclude that in telling Delgado that Respondent found out Guardado was
working with the Union, without attribution of a source, she created in Delgado’s mind the
reasonable impression of employer monitoring of employees’ union activity in violation of
Section 8(a)(1) of the Act, as alleged.
C. The alleged 8(a)(3) Conduct
Complaint paragraph 6 alleges that Respondent laid off employee Norman Guardado on
December 17, 2010, and on about February 14, 2011, failed to recall him.
In order to establish a prima facie case that Respondent violated Section 8(a)(3) or (1) of the Act,
the Acting General Counsel must show by a preponderance of the evidence that Guardado’s protected
conduct was a motivating factor in Respondent’s decision to lay him off or fail to recall him. In order to
establish this, the Acting General Counsel must show protected activity, employer knowledge of that
activity, and animus against protected activity. Having established a prima facie case, the burden of
persuasion shifts to Respondent to show it would have taken the same action even in the absence of the
protected activity. Landmark Installations, Inc., 339 NLRB 422, 425 (2003). If, however, the evidence
reflects that Respondent’s reasons for terminating or failing to recall Guardado are pretextual, either false
or not relied upon, there is no need to perform the second part of the Wright Line analysis.
United Rentals, Inc., 350 NLRB 951 (2007).
In order to establish a discriminatory refusal to hire or rehire violation, the General Counsel must
establish that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful
conduct, that the applicants had experience or training relevant to the announced or generally known
requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to
such requirements, or that the requirements were themselves pretextual or were applied as a pretext for
discrimination, and that antiunion animus contributed to the decision not to hire or rehire the applicants.
Once the General Counsel has met his initial burden for the refusal to consider and refusal to hire,
respectively, the burden shifts to the respondent to show that it would not have considered or hired,
respectively, the applicants even in the absence of their union activity or affiliation. Landmark
Installations, Inc., 339 NLRB supra at 427; Wayne Erecting, Inc., 333 NLRB 1212 (2001).
1. Guardado engaged in both union and protected concerted activities
In Meyers Industries, Inc., 281 NLRB 882, 885 (1986), the Board adopted the following
definition of the term "concerted activities":
In general, to find an employee's activity to be “concerted,” we shall require that it be
engaged in with or on the authority of other employees, and not solely by and on behalf
of the employee himself.
This definition distinguishes between an employee's concerted activities which, are engaged in with or on
the authority of other employees and an employee's non concerted activities engaged in solely by and on
behalf of the employee himself.
Here in October and November 2010, Guardado, Delgado, and other employees of Respondent
voiced their joint complaints about Respondent’s rates of pay, health insurance and 401(k) plan to union
officials. During this same period of time, Guardado and other employees provided the Union with their
pay stubs and job duties to verify whether Respondent was paying them according to the work they were
performing. Clearly, Guardado’s actions involved terms and conditions of employment and his
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complaints to the Union about these terms and conditions were concerted since they were engaged in with
other employees. Since Guardado and the other employees actively sought out the Union’s assistance in
dealing with their terms and conditions of employment with Respondent, Guardado’s actions were also
union activities.
2. Respondent’s knowledge of Guardado’s union or protected concerted activity
In November 2010, the labor compliance officer with the Banning School District advised
Respondent that complaints had emanated from employees at the Banning job concerning payment into
their 401(k) accounts. From this information Respondent could have inferred that the complaining
employee could have been Guardado, Delgado, Rivera, or any one of several other employees who
worked at that job. The record is insufficient to establish that Respondent knew that it was Guardado, as
opposed to one of the other employees, who was engaged in protected activity in November 2011.
Respondent’s interrogations of Covarrubias, including if Guardado had talked to the Union in
Banning, if Covarrubias had heard anything about the Union, or if Covarrubias knew what the Union was
doing in Banning, suggests that Respondent knew the Union was present at the Banning jobsite but is
insufficient to establish that Respondent knew Guardado engaging in union activity.
While Covarrubias testified she told Pamela Leonard that Guardado had given the Union copies
of his paystubs, her recollection of the timing of this activity was vague, occurring only sometime in the
period November 2010 to January 2011. It is more likely that Covarrubias gave Leonard this information
in January 2011, as Wellsandt testified.
That Respondent had no knowledge of Guardado’s union or other protected activity prior to
December 17, 2010, is more likely in view of Pamela Leonard’s reaction to the news that Guardado and
Delgado were union activists on January 10, 2011, by immediately deciding to fire Delgado.
However, the record establishes that Guardado was not terminated on December 17, 2010, but
rather Pamela Leonard reversed her father’s layoff as reflected in her attempt to put Guardado to work at
the Hillcrest job as well as by her testimony that she still considered Guardado an employee after
December 17. This conclusion is supported by evidence that on December 21 Pamela Leonard set up a
meeting with Guardado for January 2011. It is not surprising that there was no further contact with
Guardado from December 21 through January 10, 2011, since shortly after December 21 Respondent
closed its business due to the holidays and the effects of rain on the jobsites. Further Pamela Leonard was
on vacation from December 27 until January 5, 2011. Her first day back at work was not until January
10, 2011. After she returned from her vacation Pamela Leonard still considered Guardado an employee.
This is established through her efforts on January 10, 2011, to set up a meeting with Guardado through
Covarrubias. Guardado agreed to meet with her. Meanwhile, on January 10, 2011, Pamela Leonard was
told by Respondent’s employee, Stroud, that both Delgado and Guardado were Union salts.
At this point Respondent demonstrated its hostility towards Delgado and Guardado’s union
activities. Pamela Leonard admitted she told Delgado she was firing him because of his and Guardado’s
union activities. Armed with knowledge of Guardado’s union activities, Leonard made no further effort
to retain Guardado. Respondent’s knowledge of Guardado’s union activity was corroborated in January
2011 when Covarrubias told Respondent that Guardado had given his pay stubs to the Union. This
conclusion is supported by Pamela Leonard’s February 25, 2011 statement to Delgado that she found out
it wasn’t Delgado but Guardado who was working with the Union.
Contrary to Respondent’s contention, it had on-going work Guardado was qualified to perform
through December 2011 at other jobsites including Hillcrest and Field of Dreams, the record reflects that
there was pipe tradesman work at both jobsites. Respondent’s defense that it had no work to offer
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Guardado is a sham. Pamela Leonard admitted she intended to put Guardado to work at the Hillcrest job
and that there was work there. She further admitted to Delgado on January 10, 2011, that her initial
decision to fire him for lack of work was a fabrication to mask her antiunion animus. Likewise,
Respondent’s contention that Guardado refused Respondent’s work offers is a fabrication as established
by Respondent’s admission that Guardado agreed to meet with Leonard as late as January 10, 2011, in an
effort to retain Guardado until Guardado’s union activity trumped friendship. While on December 20,
Covarrubias may have said Guardado did not want to work with McKeen, Pamela Leonard made no effort
to ask Guardado if this was true, even when Leonard had opportunity to ask Guardado in person on
December 20 if he would go to work at Hillcrest. Respondent never offered Guardado work at any other
site and at no time did Guardado say he quit his job.
Counsel for the Acting General Counsel has shown, through all of the above, that as of January
10, 2011, Respondent had concrete plans to recall Guardado at the time it learned of his union activity,
that Respondent did not recall Guardado, that Guardado had experience and training relevant to the
requirements of the available positions and that the January 10, 2011 discovery of Guardado’s union and
protected-concerted activities was the reason Respondent did not recall him. FES, 331 NLRB 9 (2000). I
find that Respondent failed to recall Guardado to work after January 10, 2011, in violation of Section
8(a)(1) and (3) of the Act.
Respondent has not otherwise violated the Act and the remaining allegations are dismissed.
Immigration Issue
In its brief, Respondent contends that an informal settlement agreement it signed on September
26, 2011, should be enforced. This issue was disposed of by the Order Denying Motion to Approve
Informal Settlement Agreement2 issued by Associate Chief Administrative Law Judge Cracraft on
January 30, 2012. Judge Cracraft found that Respondent was advised that the settlement agreement
Respondent had signed was subject to approval by the NLRB Division of Advice. Later, on November
15, 2011, Respondent was advised that the Division of Advice would not approve the settlement
agreement. Further, Respondent’s contention that Mezonos Bakery, 357 NLRB No. 47 (2011), which
holds that back pay cannot be awarded to an undocumented worker, should more properly be addressed at
the compliance stage of these proceedings.
Conclusions of Law
1. The Respondent, Temecula Mechanical, Inc., is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. Plumbers and Pipefitters Local 398, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by creating an impression among its
employees that their union activities were under surveillance, by interrogating an employee about union
activities, and by telling an employee that they were laid off because of their union activities.
4. Respondent has violated Section 8(a)(1) and (3) of the Act by failing to recall employee
Norman Guardado.

2 GC Exh. 1(ae).
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5. Respondent has not otherwise violated the Act.
6. The unfair labor practices committed by Respondent are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must
be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of
the Act.
The Respondent will be ordered to offer reinstatement to Norman Guardado who it unlawfully
refused to recall and make him whole for any wages or other rights and benefits he may have suffered as a
result of the discrimination against him in accordance with the formula set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as provided for in New Horizons for the Retarded, 283 NLRB 1173
(1987) and Kentucky River Medical Center, 356 NLRB No. 8 (2010). enf. denied on other grounds
sub.nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended.3
ORDER
The Respondent, Temecula Mechanical, Inc., Temecula, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Creating the impression that employees’ union or other protected concerted activities are
under surveillance.
(c) Threatening to fire employees because of their union or other protected concerted
activities.
(d) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Offer Norman Guardado immediate and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without loss of seniority or other privileges and
make him whole with interest as provided in the remedy section of this Decision.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections shall be waived for all purposes.
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(b) Remove from its files any reference to the unlawful failure to recall Norman Guardado and
notify him in writing that this has been done and that the failure to recall him will not be used against him
in any way.
(c) Preserve and, within 14 days of a request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the amount of back pay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its facility in Temecula, California,
copies of the attached notice marked “Appendix.” 4

Copies of the notice, on forms provided by the
Regional Director for Region 21, after being signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. 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. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondent at any time since
November 1, 2010.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 17, 2012
________________________
John J. McCarrick
Administrative Law Judge

4 If this Order is enforced by a Judgment of the 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)–23–12
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
After a trial at which we appeared, argued and presented evidence, the National Labor Relations
Board has found that we violated the National Labor Relations Act and has directed us to post this notice
to employees in both English and Spanish and to abide by its terms.
Accordingly, we give our employees the following assurances:
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT fail to recall employees for engaging in activities protected by Section 7 of the Act.
WE WILL NOT interrogate employees about their union or other protected concerted activities.
WE WILL NOT create the impression that employees’ union or other protected-concerted activities are
under surveillance.
WE WILL NOT threaten employees with termination for engraining union or other protected –concerted
activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL offer Norman Guardado reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position of employment without any loss of rights and benefits, and WE WILL
make him whole for any loss of wages or other benefits he may have suffered as the result of the
discrimination against him.
JD(SF)–23–12
WE WILL notify Norman Guardado that we have removed from our files any reference to our refusal to
recall him and that the refusal to recall him will not be used against him in any way.
TEMECULA MECHANICAL, INC
(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.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
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, 213-894-5229.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the Decision
of which this Notice is a part may do so by contacting the Board’s Offices at the address and telephone
number appearing immediately above.