United Site Services of California, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 3, 2017

20-CA-139280 (N.L.R.B. Apr. 3, 2017)

JD(SF)-13-17
Benicia, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
UNITED SITE SERVICES OF
CALIFORNIA, INC.
and Cases: 20-CA-139280
20-CA-149509
TEAMSTERS LOCAL 315, IBT
Richard J. McPalmer Esq., and Elvira Pereda, Esq., for the General Counsel.
David S. Durham, Esq., and Christopher M. Foster Esq. (DLA Piper LLP), Jonathan E. Kaplan,
Esq. and Erik Hult, Esq. (Littler Mendelson, P.C.) for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
Dickie Montemayor, Administrative Law Judge. This case was tried before me on
August 24–27, 2015, in San Francisco, California. Charging Party (Union) filed charges on
October 20, 2014, and April 3, 2015, and an amended charge dated May 5, 2015, alleging
violations by United Site Services of California Inc. (Respondent) of Sections 8(a)(3) and (1) and
8(a)(5) and (1) of the National Labor Relations Act, as amended (the Act). An amended
consolidated complaint was filed on July 21, 2015. Respondent filed an answer to the amended
consolidated complaint denying that it violated the Act. On March 17, 2016 I issued a decision
finding that Respondent violated the Act. After the decision was rendered, the Board issued a
decision in American Baptist Homes of the West d/b/a Peidmont Gardens, 364 NLRB No. 13
(2016), a case that analyzed and applied Hott Shoppes to the permanent replacement of economic
strikers, one of the central issues presented in this case. The Board On November 3, 2016,
thereafter remanded this case for further consideration in light of its decision in Piedmont and
further directed the analysis of other alleged violations of 8(a)(3) and (1) along with an
evaluation of whether the Respondent violated Section 8(a)(5) and (1) by withdrawing
recognition of the Union after receiving a decertification petition. As directed by the Board in its
remand the parties were given the opportunity to file supplemental briefs in the matter. After
again considering the matter, and based upon the detailed findings and analysis set forth below, I
again conclude that the Respondent violated the Act essentially as alleged.
JD(SF)-13-17
FINDINGS OF FACT
I. JURISDICTION
5
The complaint alleges, Respondent admits, and I find that
1. (a) At all material times, Respondent has been a corporation with a place of business
at 1 Oak Road, Benicia, California (Respondent’s facility), and has been engaged in
the business of providing rental portable restrooms, temporary fencing, and sanitation 10
facilities.
(b) In conducting its operations during the 12-month period preceding July 21, 2015,
Respondent purchased and received at Respondent’s facility goods valued in excess
of $50,000 directly from points outside the State of California.15
(c) In conducting its operations during the 12-month period ending December 31,
2013, Respondent derived gross revenues in excess of $250,000.
(d) At all material times, Respondent has been an employer engaged in commerce 20
within the meaning of Section 2(2), (6), and (7) of the Act.
2. At all material times, the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
25
3. At all material times the following individuals held the positions set forth opposite
their respective names and have been supervisors of Respondent within the meaning
of Section 2(11) of the Act and agents of Respondent within the meaning of
Section 2(13) of the Act:
30
(a) Steve Gutierrez- Area Manager
(b) Aggie T. Haley- Human Resources Manager
(c) Mark Bartholomew- Senior Vice President of Operations
(d) Mike Kivett- Reno Area Manager
(e) David Sattler- Supervisor/Lead Driver35
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
40
United Site Services, Inc. is a company that provides portable toilet and temporary
fencing rentals. The company has multiple facilities but this case relates to the facility in Benicia
California. The company relies upon employees with varying job titles to perform the work.
The company employs the following types of employees:
45
1) Yard associates- whose work at the employer’s facility to wash, inspect, prepare, and
repair equipment;
2) Pick Up an Delivery (P&D) driver’s-whose duties include picking up and delivering
portable toilets, installing holding tanks, and completing any necessary repairs to
equipment in the field. P&D drivers must hold a Class C drivers license.50
JD(SF)-13-17
3
3) Fence drivers- whose duties include the delivery and installation of fence. Fence
drivers must hold a Class C driver’s license.
4) Fence helper-whose duties are to assist the fence driver’s with installation and
delivery of fencing materials.
5) Service technicians- whose duties are to drive from site to site pumping out toilets or 5
holding tanks and to clean and restock the portable toilets. Periodically, after the
trucks are filled they must return to the facilities to empty their tanks. They must also
hold a Class C driver’s license.

On September 23, 2013, the Union filed a petition to represent a bargaining unit of the 10
employer’s workers. (GC Exh. 2.) On November 21, 2015, the Union won the election. (Jt.
Exh. 1.) On January 7, 2014, the Board certified the Union as representative of the following
Unit:
All full time and regular part-time Service Technicians, Lead Service
Technicians, Pick Up and Delivery Drivers, Mechanics, Laborers, and Fence 15
Installers employed by the Employer at its 1 Oak Road, Benecia California
facility, but excluding Dispatchers, supervisors and guards as defined by the Act.
(GC Exh. 3.)
From February to July 2014, the parties engaged in negotiations for an initial contract. 20
The parties held multiple bargaining sessions. In the course of this bargaining, unit employees
twice voted on contract proposals. On July 16, 2014, the employer provided its Last Best Final
Offer (LBFO). (R. Exh. 2.) On July 23, 2014, the employees unanimously rejected the proposal.
(R. Exh. 11–17.) At this same meeting the employees voted to authorize a strike. Despite the
authorization to strike the strike did not begin immediately. The employees directed the Union 25
to investigate other options to put pressure on the employer before going on strike. The Union
also needed to seek approval from the International Brotherhood of Teamsters for strike benefits.
After the efforts by the Union to put pressure on the employer did not yield results satisfactory to
the employees, they decided to go on strike. On October 5, 2014, the Union notified the
employer that it would strike the next day. (GC Exh. 5.)30

The strike at the Benicia facility began on October 6, 2014. It is undisputed that the
strike was an economic strike. (Tr. 35:12–13.) At the time of the strike, the unit consisted of 25
active employees and a vacant P&D Driver position. Of the 25 employees 21 of them went out
on strike with the majority picketing the entrance to the employer’s facility every day of the35
strike.1 The employer had in place a contingency plan for the strike which relied upon
employees from other facilities to assist and cover the striker’s positions. (Jt. Exh.1, GC Exh.
10.) The employer also used temporary employees to cover its Bencia operations who were
hired through “Labor Finder’s” a temporary employment agency. Also on the first day of the
strike, the employer through its human resources manager, Augeda Halley, area manager, Steve 40
Gutierrez, and vice president, Steve Wit began hiring replacements. (Jt. Exh. 1 Stip. 21.) The
offers were made for “permanent full time position[s], and to work indefinitely even after the
strike ended.” (R. Exh. 12–through 12–71). The written offers included the following language

1 Michael Knutsen, Javier Santiago, Oscar Reyes Perusquia, and Richard Rotti did not join the strike.
(Jt. Exh. 1.)
JD(SF)-13-17
4
Permanent
Position
Name
Offer and Acceptances
Verbal Acceptance
Date and Time
(See Resp. Exh. 14)
Written Acceptance Date
and Time
(See Resp. Exh. 12-1
through 12-74)
Mechanic Michael Knutsen 10/14, 5:29 PM 10/14, 5:29 PM
Fence Driver James Matthews 10/6, 4:15 PM 10/6, 4:50 PM
Service Technician Christopher Orr 10/6, 9:30 AM 10/6, 9:30 AM
Service Technician Martin Escobar Segura 10/7, 7:15 AM 10/6, 4:15 PM
Service Technician Francisco Hernandez Rocha 10/7, 7:10 AM 10/6, 4:13 PM
Service Technician Armando Martinez Saucedo 10/7, 8:40 AM 10/13, 6:00 PM
Service Technician Alfonzo Meza 10/7, 7:55 AM 10/8, 11:19 AM
Service Technician Jorge Recinos (or Racinos) 10/7, 9:30 AM 10/8, 9:30 AM
Service Technician Desiree Martinez 10/10, 5:30 AM N/A
Service Technician Paul Barron 10/10, 5:00 AM 10/10, 5:00 AM
Service Technician Greg Beddoes 10/10, 5:30 AM N/A
Service Technician Javier Santiago 10/14, 7:20 PM 10/10, 7:30 PM
Service Technician Darryl Gaines 10/14, 6:43 PM 10/14, 6:43 PM
Service Technician Brian Flores 10/16, 1:00 PM 10/16, 1:00 PM
Service Technician Nicholas
Cermeno- Hernandez
10/16, 5:00 AM 10/16, 8:15 AM
Service Technician Alvin Williams 10/16, 1:29 PM 10/16, 12:29 PM
Service Technician Kevin Murphy 10/16, 2:50 PM 10/16, 7:00 PM
Yard Associate Joshua Johnson 10/6, 4:15 PM 10/6, 4:50 PM
Yard Associate Jesse Hernandez 10/13, 2:15 PM 10/14, 2:41 PM
Yard Associate Maurice Espinoza 10/16, 7:38 AM 10/6, 9:16 AM
Yard Associate Julio Campos 10/16, 12:39 PM 10/16, 12:59 PM
Yard Associate Lester Moreno
25
10/16, 2:15 PM 10/18, 2:20 PM
Yard Associate Antoine Frazer 10/16, 2:47 PM 10/17, 7:20 AM
Pick Up & Delivery
Driver
Richard Wilkerson 10/8, 3:30 PM 10/14, 7:36 PM
Pick Up & Delivery
Driver
Antony Boatmun 10/10, 3:45 PM 10/13, 8:10 AM
Pick Up &
Delivery Driver
Michael Neitz 10/14, 1:22 PM 10/14, 1:22 PM
Pick Up &
Delivery Driver
James Brown 10/15, 3:20 PM 10/15, 3:57 AM
JD(SF)-13-17
5
You understand and agree that you have been advised that a strike or other active
labor dispute exists between USS and Teamsters Local 315 at the Benecia
location and that the position offered is as a permanent replacement for a striker
who is presently on strike against USS at the Benecia location. You further
understand that, as a permanent replacement, if the strike ends, you will not be 5
displaced to make room for the returning strikers. . . . (emphasis in original). (R.
Exh. 12–1 through 12–74.)
Included among the written offer was a written offer of acceptance. The document was
titled, “Acceptance of Offer of Employment as Permanent Replacement” and contained language 10
similarly to the offer indicating that the employee would “immediately’ accept employment as a
“permanent replacement” and that the person would not be displaced once the strike ended.
(Exh. 12–1 through 12–74.)
The Human Resources Manager Halley began to make offers and kept a log of the dates 15
and times of offers and receipt of written acceptance. The log contained the following
information:
Despite the employer’s ongoing efforts to hire replacements beginning on the first day of
the strike, Respondent did not inform the Union of its hiring efforts until 3:40 p.m. on October 20
16, 2014. (GC Exh. 6.) The notification which arrived via email advised that the employer had,
“hired permanent replacements to fill all of the positions vacated by the striking employees.”
(GC Exh. 6.)
The next evening on October 17, 2014, the Union held a meeting and discussed the 25
employer’s email of October 16, 2014, with the strikers. Upon learning of the employers efforts
to hire replacements the strikers chose to return to work. (Tr. 141.) At 6:05 p.m. of that same
evening, the Union emailed to Respondent a letter terminating the strike and making an
unconditional offer of its employees to return to work. (GC Exh. 7.) On October 18, 2014,
Respondent confirmed that there were no unit positions available and advised that the striking 30
employees had been placed on a preferential recall list. The correspondence also requested up to
date contact information for all of the strikers. (GC Exh. 8.) On October 22, 2014, the employer
sent another email requesting up to date contact information for the strikers. (GC Exh. 9.) On
October 23, 2014, the Union replied advising that it would “confirm the correct addresses and
provide updates as necessary.” (GC Exh. 9.) On October 27, 2014, the Union provided some 35
updated contact information. (GC Exh. 9.)
Respondent, thereafter, put in place its procedures for preferential recall. (R. Exh. 20.)
Under its process, the area manager, Steve Gutierrez would make a determination that a position
was vacant he would then inform the Human Resources Manager Aggie Halley who would then 40
refer to the preferential recall list and contact two former strikers with the highest seniority. She
would contact them by both calling their phone numbers of record and also mailing letters to
their address of record. If two employees accepted and only one position was available the
position would be offered to the person with the most seniority and the less senior person would
remain eligible for preferential recall. If the person did not accept the position then the employer 45
considered their employment relationship ended at that point in time. (Tr. 268, 270.) If Halley
found there were no former strikers who held a position to be filled, then Halley would offer it to
JD(SF)-13-17
6
a former striker in another position with the understanding that they would still be eligible for
preferential recall to their former or substantially similar position. (Tr. 265.)
The first offer of reinstatement went out on December 8, 2015, and continued through
June 9, 2015. Sometime in mid-January (a time when only three of the former striking 5
employees had returned to work) a petition was circulated among the employees. The petition
contained the following language:
We the employees of United Site Services a 1 Oak Road, Benicia CA 94510 are
hereby giving notice to the Teamsters Local 315 that we do NOT (emphasis in 10
original) want any association or Representation from the Teamsters Local Union
315 effective immediately. (R. Exh. 9.)
The petition was signed by 24 employees and most signed with dates next to their names. Some
signed on January 5, 2015, others, January 7, 2015, and two signed on February 11, 2015. Two 15
employees that signed the petition did not indicate the date they signed. (R. Exh. 9.) The
petition was delivered by Richard Wilkerson, a permanent replacement employee to the Senior
Vice President of Operations Mark Barthholomew. Bartholomew sent the petition to the Human
Resources Manager Halley and asked her to verify that the signatures on the petitions matched
signatures in the employees’ records. (Tr. 433.) Halley conducted the verification process and 20
reported back that in fact the signatures matched. (Tr. 433.) By email dated March 27, 2015,
Bartholomew sent a letter to the Union which set forth the following:
We are in possession of objective evidence that your union no longer represents a
majority of the employees at United Site Services a majority of the employees at the 25
United Site Services bargaining unit. Accordingly United Site Services hereby
withdraws recognition from your union in this unit effectively immediately.
(GC Exh. 12.)
Despite the withdrawal of recognition, Respondent continued to offer reinstatement to former 30
striker’s with the last offer being a Service Technician offer made to David Reeves who declined
and chose to remain as a P&D driver on June 9, 2015. (GC Exh. 48.)
B. Analysis
35
1) The Failure to Recall Striking Workers
The court in New England Health Care Employees Union v. NLRB, 448 F.3d 189, 191–
92 (2d Cir. 2006), succinctly set forth the applicable legal standards as follows: 40
Section 7 of the Act, 29 U.S.C. § 157, grants employees the “right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” See also 29 U.S.C. § 163 (“Nothing in this Act ... 45
shall be construed so as either to interfere with or impede or diminish in any way the right to
strike . . . .”). To implement this right, § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), makes it an
JD(SF)-13-17
7
unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the
exercise” of their § 7 rights. And § 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), makes it an unfair
labor practice for an employer to “discourage membership in any labor organization.” Under
Supreme Court precedent, an employer that refuses to reinstate economic strikers violates §
8(a)(3) unless it can demonstrate that it acted to advance a “‘legitimate and substantial business 5
justification[ *192 ].’” See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19
L.Ed.2d 614 (1967) (quoting NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 18
L.Ed.2d 1027 (1967)). The hiring of permanent replacement workers amounts to one such
legitimate and substantial business justification. See NLRB v. Int'l Van Lines, 409 U.S. 48, 50,
93 S.Ct. 74, 34 L.Ed.2d 201 (1972) (“[A]n employer may refuse to reinstate economic strikers if 10
in the interim he has taken on permanent replacements.”); Belknap, Inc. v. Hale, 463 U.S. 491,
504 n. 8, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983) (“The refusal to fire permanent replacements
because of commitments made to them in the course of an economic strike satisfies the
requirement of [Fleetwood Trailer ] that the employer have a legitimate and substantial
justification for its refusal to reinstate strikers.”) (internal quotation marks omitted). 15
Consequently, “[w]here employees have engaged in an economic strike, the employer may hire
permanent replacements whom it need not discharge even if the strikers offer to return to work
unconditionally.” Belknap, 463 U.S. at 493, 103 S.Ct. 3172.
It is the burden of the employer to demonstrate that the persons hired are in fact
permanent replacements and further the employer must establish a mutual understanding 20
between employer and employee that that they in fact are permanent. Jones Plastic &
Engineering Co., 351 NLRB 61, 64 (2007). On October 17, 2014, the Union made a written
offer to return to work on behalf of all striking employees. Respondent advised that no Unit
positions were available because it claimed it had hired twenty seven individuals who it
contended were permanent employees. (Joint Ex. 2). As is discussed in more detail below, the 25
evidence established that Respondent failed to meet its burden of establishing that many of the
persons it designated as “permanent replacements” were in fact permanent.
a) Desiree Martinez
30
Desiree Martinez was identified as one of the “permanent replacements.” Her credible
testimony and the documentary trail of evidence established the opposite. Ms. Martinez was a
permanent employee of the company employed at the Respondent’s Reno Nevada facility. She
was asked by her manager, Mike Kivett to go to work in Benecia to “help” during the strike.
She was unaware of the circumstances surrounding the request and assumed it was to help for a 35
special event and did not know she was assisting with the strike. Thereafter, before she left, she
was told that she would be crossing a picket line and would be just going there “temporarily.”
(Tr. 52). At no time did her manager describe the assignment as “permanent” to her. (Tr. 52).
At no time did he use the term “permanent replacement” to describe her assignment. (Tr. 52-53).
Ms. Martinez credibly testified that she worked in Benicia for a few weeks then returned to Reno 40
worked in Reno for a week and then returned to Benicia. The first time she traveled to Benicia
in a company vehicle, the second time the company paid for a car rental. While she was in
Benicia she stayed in a motel at the company’s expense and received reimbursement for food
expenses. When she returned to Benicia the second time, the job assignment was never
described to her as “permanent” and she did not understand the job to be permanent in nature. 45
(Tr. 56). During her second period of assignment in Benicia she testified that Steve Gutierrez, a
manager while in the yard in Benicia asked her if she wanted to permanently transfer. At the
JD(SF)-13-17
8
time she thought he was “just joking around.” (Tr. 58). She then testified that he again asked her
while in his office if she wished to permanently transfer. She testified that she told him “no.”
(Tr. 59). She elaborated that the reason she declined the offer to permanently transfer was that
her family is in Reno. The documentary evidence of record corroborates her testimony. (See
GC Exh. 10). (See also GC Exh. 30) (showing her work after she returned to Reno). Her 5
testimony is also in part corroborated by Respondent’s own witness Steve Gutierrez who
testified that when given the offer he was told, “she had to think about what’s (sic) her husband
going to do.” (Tr. 485).
The above evidence paints a clear picture that Ms. Martinez was not a permanent 10
replacement and there was no “mutual understanding” of her being a permanent replacement.
More importantly, the evidence reveals that not only was she not a permanent replacement but
that the employer knew that she was not. She testified that she directly told Gutierrez “no” and
the inclusion of her on a list of permanent replacements is a knowing and intentional attempt to
not only mislead but also to intentionally block the return of strikers who had requested 15
reinstatement in violation of 8(a)(3 ) of the Act. The intentional misleading is probative of
unlawful motivations and similarly calls into question Respondent’s assertions regarding other
purported “permanent replacements.”
b) Greg Beddoes20
Another of the claimed permanent hires was Greg Beddoes who happens to be the father
of Desiree Martinez discussed above. Mr. Beddoes like his daughter lived and worked in Reno
during the time of the strike. He was also approached by Mike Kivett to temporarily assist in
Benicia. Like his daughter, when he was approached he was never told the assignment would be 25
permanent. (Tr. 70). Upon arrival, he was also not told by anyone (including Steve Gutierrez,
the manager of Benicia) that the assignment was permanent. (Tr. 70). He also testified that
Gutierrez never described his work as that of a “permanent replacement.” (Tr. 71). He further
testified that after he first reported to Benicia in October of 2014, he returned to work in Reno
every other week. (Tr. 71). He further described his assignment as working back and forth 30
between Reno and Benicia working two weeks in Benicia then returning to work a week in
Reno. When he arrived in Benicia, he stayed in a hotel at the company expense and was
provided reimbursement for food. He testified that his last day of work in the Reno facility was
December 28, 2014. He asserted that he was offered permanent work by Gutierrez a couple of
weeks after he arrived or “maybe less than a couple of weeks after he got there.” (Tr. 74). His 35
response to the offer was that he “had to think about that.” (Tr. 74). He testified that eventually
he accepted the offer and “signed papers and accepted the job for January 5, 2105.” (Tr. 74).
Respondent in direct contradiction to Beddoes’ testimony contends that he accepted a verbal
offer on October 14, 2104, as is evidenced by a hand written notation by Human Resources
Manager Halley and signed a formal acceptance letter on that date. (GC Ex. 24). I credit the 40
testimony of Beddoes as truthful regarding his assertion that he told Gutierrez that he would have
to think about it and did not accept until much later. It was not until late December and/or early
January did Beddoes and Respondent have a “mutual understanding” that he was permanent.
The documentary trail and the logical sequence of events also supports Beddoes’ version of
events. His back and forth work in Reno resembled that of a temporary assignment and his last 45
day of work in Reno on December 28, 2104, supports his version of events. His statement to the
Board which was referenced during the trial further corroborates his version. (Tr. 94). Of note is
JD(SF)-13-17
9
the fact that the purported Beddoes acceptance letter was dated October 10, 2014, and despite a
line referencing date and time of signing was not dated by him. I find that given Beddoes’
testimony on this matter, a logical and reasonable inference from this evidence is that the letter
was retroactively dated as was Halley’s note in a self-serving attempt to obfuscate the true facts
of when Beddoes was actually hired in Benicia permanently. This is supported by the 5
admission/stipulation that Halley did not even receive the signed letter until sometime after
November 29, 2014. (Tr. 620-623). The evidence surrounding this acceptance letter calls into
question the veracity of all of the letters that purport to document acceptance of permanent
positions.
10
It is clear from the above that Beddoes was not hired as a permanent employee until
sometime in late December and didn’t actually sign paperwork until approximately January 5,
2014. It is also clear that Respondent knew that he was serving in a temporary capacity until that
time. In fact the official company time card reports listed him as working for the Reno office up
until at least 12/ 19/ 2104. (GC 11). Respondent placing him on the list of permanent 15
replacements when they knew he was serving in a temporary capacity was a knowing and
intentional attempt to not only mislead but also to intentionally block the return of strikers who
had requested reinstatement in violation of 8(a)(3 ) of the Act.
c) Richard Wilkerson20
Richard Wilkerson was employed by Respondent prior to the strike at the Santa Clara
facility. (Tr. 116). He was employed as a Quality Assurance Specialist working in the SJO (San
Jose) Field Operations Support Division. (Tr. 348). Respondent contends that Mr. Wilkerson
was a permanent replacement and point to an offer letter dated October 8, 2014, and purportedly 25
signed on October 14, 2014. Mr. Wilkerson was not called to testify so there is insufficient
credible evidence to establish that in fact the person who signed the letter was in fact him.
Nevertheless, the offer of employment clearly stated that his employment was for that of the
position of Service Driver. Respondent’s own time card records directly contradict the assertion
that he assumed the position of Service Driver in October. In fact, the time cards show him 30
assigned to the “San Jose Operations” until December 1, 2014, when his designation is changed
from operations to “Service Tech.” Similarly, the site designated on the time card as his
permanent work site is “SJO” San Jose.
Ana Flores, the Lead Dispatcher, who acted as the supervisor in the absence of Steve 35
Gutierrez overseeing all departments, credibly testified that prior to arriving at Benicia,
Wilkerson worked in a quality control function and was “in charge of taking care of “major
customers” doing site visits to make sure everything was ok and if the customers complained he
would communicate with her about the problems. She testified that the Santa Clara office
performed different type of work that the work performed at Benicia which she described as 40
“office personnel.” (Tr. 117). She also noted that when he came to Benicia Wilkerson was
“helping us out with pickup and delivery. She further credibly testified that on several occasions
she was asked by Wilkerson if she had heard “when he was going back to Santa Clara.” (Tr.
117). She further testified that he indicated that he had talked to “the person that sent him” and
“they weren’t telling him anything either.” (Tr. 118). She further testified that she relayed 45
Wilkerson’s questions to Gutierrez who responded he didn’t know when Wilkerson would be
returned to Santa Clara. Wilkerson was thereafter returned to Santa Clara in June of 2015.
JD(SF)-13-17
10
Respondent’s time card records confirm his return and show a change in his Service Tech title to
that of Field Ops Support. (GC Ex. 34 p. 8).
The reasonable inferences to be drawn from all of the above is that notwithstanding the
“offer letter,” in fact Wilkerson was temporarily “borrowed” from Santa Clara to work in 5
Benicia and was later returned to Santa Clara. The testimony of Ana Flores directly supports the
conclusion that Wilkerson himself understood that the assignment was temporary and was
anxious to return. The fact that he was returned to Santa Clara is even more compelling evidence
that his tenure at Benicia was not that of a “permanent replacement.” In light of all of the above
and specifically 1) the contradictions presented within Respondent’s own records which show 10
Wilkerson didn’t even assume the position of Service Tech until December which directly
contradicts the “offer letter” 2) the Respondent’s noted permanent location of his assignments as
SJO within the jurisdiction of the location of his initial assignment; and 3) the credible testimony
of Ms. Flores; and 4) Wilkerson’s return to Santa Clara, I find that Respondent failed to meet its
burden of establishing the permanent replacement status of Wilkerson. Moreover, the fact that 15
he was merely “borrowed” and the Respondent used the “offer letter” to cover up his real status
when combined with the actions discussed above relating to Beddos and Martinez demonstrates
a pattern of willful mendacity calculated to block the return of striking employees in violation of
Section 8(a)(3) of the Act. See 3D Enterprises Contracting Corp. 334 NLRB 57, 77-78 (2001),
see also Dino and Sons Realty Corp., 330 NLRB 680, 684-85 (2000). 20

d) Nicolas Cermano-Hernandez
As was the case with Wilkerson, Respondent asserted that Cermeno-Hernandez was a
permanent replacement and signed an acceptance letter dated October 16, 2014. (Joint Ex. 2 25
Resp. Exh. 12-16 & 17). Mr. Cermeno-Hernandez did not testify and there is insufficient
evidence in the record to establish that in fact he actually signed the acceptance letter.
According to Respondent’s business records, Mr. Cermeno-Hernandez was employed as a
seasonal worker with the title of Seasonal Temporary Service Tech at the Respondent’s Santa
Rosa facility. (GC Exh. 63 p. 5). In the documents referencing his hiring in July of 2014, it was 30
noted that he had been working with Respondent “every season for the last 6 years.” (GC Exh.
63 p. 5). The actual Change of Status/Personnel Action Notification form references his status as
“seasonal.” (GC Exh 63 p. 6). Respondent’s time card records reflect that at all times he
remained classified as a Santa Rosa Service Tech from at least October through December of
2014. (GC Exh. 11 p. 9-13). The site location was identified in the records as “SRO.” (GC Exh. 35
P.9). During the strike he worked at the Benicia yard and drove a truck which belonged to the
Santa Rosa facility. (Tr. 114). During this time frame he also worked in Santa Rosa. (Tr. 115-
116). Sometime in December, he advised the dispatcher that “his work was done” and he was
returning to Mexico. (Tr. 115). On February 23, 2015, an Employee Separation Notice was
signed by Respondent’s management officials effective March 6, 2015, noting that Cemeno-40
Hernandez voluntarily resigned due to “personal reasons.” (GC Exh. 63 p.8). In June of 2015,
Cemeno Hernandez reapplied for work in Sacramento noting that he had previously worked at
Benicia until March of 2015, but the reason he gave for leaving was “lay off.” (GC Exh. 63
p.11). He was hired as a Seasonal Service Tech effective June 23, 2015 and a Change of Status/
Personnel Action Notification Form was filled out referencing his hire. (GC Exh. 63. P. 12). 45
JD(SF)-13-17
11
Again Respondent’s own business records contradict its assertions that Cermeno-
Hernadez was a permanent replacement. The reason that appears in his application for
reemployment directly contradicts the Respondent’s records which assert that he resigned due to
personal reasons. A reasonable and logical inference to be drawn from the evidence is that in
fact he served at the Benicia location in the same seasonal capacity (as he had previously served 5
for the past 6 years) and that he was similarly laid off because he was a seasonal worker. This
conclusion is bolstered by the fact that despite the presence of Change of Status/ Personnel
Action Notification forms in the record none appear which would reference his change in status
from a seasonal to a permanent employee. The conclusion is also bolstered by the fact that he
was rehired in Sacramento as a seasonal employee. 10
Regardless, the inherent contradictions between Cermeno-Hernandez’ application and the
Respondent’s own time card records (which do not show him permanently assigned to Benicia)
make clear that Respondent failed to meet its burden of establishing that he was in fact a
permanent replacement. Instead, the evidence points to Cermeno’s own understanding that he 15
was laid off as a seasonal employee and was not a permanent replacement. As noted in 3D
Enterprises Contracting Corp. 334 NLRB 57, (2001), “the law is that replacements for economic
strikers are presumptively temporary employees, and the burden is on the employer to “show a
mutual understanding between itself and the replacements that they are permanent.” (citing
Hansen Bros. Enterprises, 279 NLRB 741(1986), enfd. mem. 812 F.2d 1443 (D.C. Cir. 1987).20
See also Towne Ford Inc., 327 NLRB 193, 204 (1998). Thus, I find that the utilization of
Cermano-Hernadez to block the return of striking employees violated Section 8(a)(3) and (1) of
the Act.
e) Lester Moreno
25
Among those employees Respondent listed as a permanent replacement was Lester
Moreno who Respondent claimed was hired in the position of Yard Associate. As referenced
above, Respondent advised on October 16, 2014 that the company had hired “permanent
replacements to fill all vacant positions.” (GC Ex. 6). The hiring of Lester Moreno makes clear
that this statement was not truthful. On March 17, 2014, the Union sent a letter indicating the 30
termination of the strike and the unconditional offer to return to work. On October 18, 2014, at
11:21 a.m. Counsel for Respondent acknowledged receipt of the letter and indicated “I have
confirmed that all the positions have been filled with permanent replacements.” (GC Ex. 8).
The Respondent’s records regarding the hiring of Moreno indicate that he did not even accept a
position until October 18, 2014 at 2:20 pm. (Resp. Exh. 12-55). Despite Respondent’s assertions 35
on October 16, 2017, that “all vacant positions” had been filled, Respondent knew or should
have known that this was not true. Indeed, Moreno didn’t even accept the position offered until
after the Union sent and the Respondent had by its own admission received the striker’s
unconditional offer to return to work. Respondent’s purposeful attempts to deceive when
contradicted by its own records make clear that Moreno was not hired on October 16, 2014, nor 40
was he hired prior to the Respondent’s receipt of the unconditional offer to return to work.
Respondent failed to meet its burden to establish that this position had been filled by a permanent
replacement prior to the unconditional offer to return to work in violation of Section 8(a)(3) of
the Act. “See Home Insulation Service, NLRB 255 NLRB 311, 313 (1981), enfd. mem. 665
F.2d 352 (11th Cir. 1981). 45
JD(SF)-13-17
12
f) Antoine Frazer
Respondent contended Antoine Frazer was a permanent replacement hired as a Yard
Associate as of October 17, 2014. (Joint. Ex. 2). However the undisputed evidence of record
indicates that he did not start his employment until December 8, 2014. (GC. Exh. 11, 64). The 5
reason for the delay in his start was a failed background check which was a condition of his
employment. The initial background check revealed an outstanding active warrant. (Tr. 350-351,
591). The Respondent thereafter afforded Frazer a second opportunity to pass a background
check and in fact ran a new background check. (GC Exh. 64 p. 5) He was hired after the second
background check but it is unclear from the documentary evidence of record whether in fact he 10
passed it a second time. (Resp. Exh. 12-27 GC Exh. 11 p. 64 p.6). I find that at the moment that
Frazer failed his background check, Respondent had an affirmative duty to immediately offer the
vacant position to one of the striking employees. While in some employment contexts an
employer might find it reasonable to leave vacant positions open after background check failures
and give potential candidates multiple opportunities to pass background checks, the same is not 15
true, when, as in this case, the employer has an affirmative legal duty to reinstate strikers. In the
first instance, it is important to reiterate that striking employees remain employees. NLRB v.
Fleetwood Trailer, Co., 389 U.S. 375 (1967). Upon Frazer’s failure of the background test
striking employees with actual job experience and without any similar employment
contingencies were waiting to be called back into vacant positions Respondent easily could have 20
made efforts to recall one to fill the position but did not. Respondent’s actions are further
evidence of the pattern of demonstrated efforts to block retuning strikers. I find the failure to
recall a striker to fill the position that became vacant by the failure of the background test
violated Section 8(a)(3) of the Act.
25
g) Oscar Reyes-Perusquia (“Reyes”)
Oscar Reyes-Perusquia was an employee who chose to “cross over” and work during the
strike. He was employed as a Fence Driver. (Jt. Exh. 1). Respondent contended that he
remained in his position as Fence Driver during the strike. General Counsel argued that this 30
assertion was false and that in fact Respondent effectively transferred Reyes into a Service Tech
position to block the recall of a Service Tech person into that role. General Counsels position is
in fact bourne out by the testimony and documentary evidence of record. The record reveals that
instead of serving as a Fence Driver, Reyes worked almost exclusively on Service Route 6
performing Service Tech duties. (GC Exh. 10). Further, it was established that the duties of the 35
particular jobs were separated and it was atypical for Fence Drivers to perform Service Tech
work. Ana Flores testified as follows:
Q. Did Service tech employees ever perform fencing work?
A. No.40
Q. And did service tech employees ever perform yard work?
A. No.
Q. And what about pickup and delivery drivers did these employees perform service
work?
A. No.45
Q. Did the pickup and delivery drivers perform fencing work?
A. It was rare.
JD(SF)-13-17
13
Q. And did the pickup and delivery drivers perform yard work?
A. No.
Q. The fencing employees do they perform service tech work.
A. No. (Tr. 105).
5
A reasonable conclusion to be drawn from the lack of any clear documentation
transferring Reyes into a Service Tech position permanently is that he was merely temporarily
transferred into a Service Tech position and therefore Respondent failed to meet its burden of
establishing that in fact he was a permanent replacement in violation of the Act. See H. & F.
Binch Co., 188 NLRB 720 (holding transferees not permanent therefore unlawful to reinstate 10
strikers). See also MCC Pacific Valves 244NLRB 931, 933 (holding that employer was obligated
to hire strikers at “initial” vacancies).
2) The Labor Finders Hires
15
Among those whom Respondent contended were “permanent replacements” included
seven individuals who Respondent contended were Labor Finders hires that were permanently
converted from temporary positions. This assertion does not withstand scrutiny when the
documentary evidence in the record is set against Respondent’s assertion that all positions had
been filled on October 16, 2014. The Labor Finders time cards and work order records show that 20
after October 16, 2014, seven individuals continued to be employed and paid by Labor Finders
(LF). (GC Exh. 17, 18, 18, 19, 56). Most significant is the fact that the timesheets signed by
these employees contained the following language, “All temporary employees assigned to
Customer by LF(“LF Personnel”) are employees of LF. LF is responsible for hiring, assigning
disciplining, terminating and/or reassigning LF Personnel; and, is solely responsible for 25
establishing, providing, and paying wages and benefits to LF Personnel.” (GC Exh. 73). In as
much as the Union set forth its unconditional offer to return to work on October 17, 2104, and
the seven individuals were still being paid by Labor Finders, and by their own agreements set
forth in the signed timecards were still employed by of LF after this date, Respondent failed in its
burden of establishing the permanence of these individuals and therefore violated Section 8(3) 30
and (1) of the Act. See Harvey Manufacturing, 309 NLRB 465 (1992).
3. The “Effective Discharge” of 14 Strikers.
Longstanding Board precedent makes clear that an “effective discharge” results when and 35
employer falsely claims to have permanently replaced economic strikers when in fact it has not.
For example, in American Linen Supply Co., 297 NLRB 137 (1989), the Board held that an
employer who informed lawful economic strikers that they had been permanently replaced when
in fact the employer had not obtained such replacements effectively terminated the strikers in
violation of Section 8(a)3 and (1) of the Act. 40
In this case, Respondent knew or should have known that the October 16, 2014, email in
which it notified the Union that it had hired permanent replacements to fill “all of the positions
vacated the strikers” was false. It was false not only because of those employees it purposely
attempted to masquerade as permanent replacement discussed above but also because of the 45
additional seven individuals who were recruited through the temporary employment agency and
were similarly not permanent at the time of the Union’s unconditional offer to return to work. In
JD(SF)-13-17
14
addition, Respondent’s own documents taken at face value reveal that both Antoine Frazer and
Lester Moreno had not accepted permanent employment as of October 16, 2014 and were not
bona fide permanent replacements. ( Resp. Exh. 12-27 to 12-29, 12-53 to12-55). I find that
Respondent effectively discharged 14 strikers as of the date of its October 16, 2004,
pronouncement in violation of 8(3)and (1) of the Act. See Consolidated Delivery & Logistics, 5
Inc., 337 NLRB 524 (2002), enfd. 63 Fed. Appx. 520 (D.C. Cir. 2003). See also W. C.
McQuaide, Inc., 237 NLRB 177 (1978).
4. The 5 Employees Determined Ineligible For Recall
10
Economic strikers who maintain a right to reinstatement nevertheless can be removes
from recall consideration if 1) the employer made the striker a valid offer to return to work and
the striker rejected the offer, or 2) where the employer can demonstrate that the former striker
obtained regular and substantially equivalent employment and unequivocally intends to abandon
the job he his struck job. Carruthers Ready Mix. Inc., 262 739 (1982), Alaska Pulp Corp. 326 15
NLRB 522 (1998).
a) Walter Buckner
Walter Buckner was placed on Respondent’s preferential recall list on October 18, 2014. (Jt. 20
Exh. 1). No attempt was made to recall him until January 9, 2015. (GC Exh. 48). On or about
January 9, 2015, Human Resources Manager Halley claimed she tried to reach Buckner by phone
but was unable to leave a message. (Tr. 277). She thereafter sent a letter dated January 9, 2015
which noted that if Respondent did not receive a response by 3:00 p.m. 1/19/2015 the Company
would “assume” he did not want the position. (Resp. Exh. 13-18). The letter however was 25
wrongly addressed to a former address despite the fact that Buckner credibly testified that he
informed Respondent by telephone of a change in his address and in fact received
correspondence at the new address subsequent to his conversation with Respondent’s officials.
(Tr. 239). Because the letter from Halley was sent to his old address, he didn’t receive it until
Saturday, January 24, 2015, five days after the expiration noted on the letter by Halley. Upon 30
receipt of the letter he contacted Halley and left a message on her voicemail indicating that he
had moved but received the letter and that he wished to accept the job offer. (Tr. 242-243). On
Monday January 26, 2015, he then went to the Benicia facility and spoke directly with Steve
Gutierrez about the job offer and explained that he wanted to accept the offer. While at the
facility on January 26, 2015, he signed the job offer and Gutierrez faxed it back to Halley. (Tr. 35
244, GC exh.44). Later that day Halley contacted him and advised him that his response was
untimely and that the position was no longer available. (Tr. 247). He fully explained that the
letter was sent to the wrong address and the delay in his receipt and she indicated that she would
speak with someone about it and get back with him. When she called him back approximately
30 minutes later, she advised him that his was response was late and the “position was closed.” 40
(Tr. 247). As of January 19, 2014, Buckner was declared ineligible for preferential hire and
received no other recall offers. (Jt. Exh. 1, Tr. 248).
In Easterline Electronincs Corp., 290 NLRB 834, 835 (1988), the Board (citing NLRB v.
Betts Baking Co., 428 F.2d 156, 158 (1970)) noted that in situations regarding the duty to 45
respond to an offer “[B]oth the employer and employee are bound by the requirement of good
faith dealings with each other.” Unquestionably, Buckner made good faith efforts to accept the
JD(SF)-13-17
15
offer very soon after he became aware of it, not only did he call but also went to the facility in
person and signed the actual offer. Respondent, on the other hand, violated its duty to act in
good faith. Despite Buckner’s evidence of the certified mail receipt card that in fact confirmed
the truthfulness of his assertions about receipt date of the letter, Respondent refused to take into
consideration the delay caused by the mailing of the offer to the wrong address. The time frame 5
given Buckner to respond cannot be said to have been reasonable under the circumstances
presented. See Easterline Electronincs Corp., supra at 835. I separately find given the
circumstances surrounding the offer, the lapsing language in the offer i.e. “the company must
receive you response no later than 3:00 p.m. on 1/19/2015” also renders the offer invalid. (GC
Exh. 44). See for example, Martell Construction Inc., 311 NLRB 921 (1993), (concluding that 10
offers were inadequate by virtue of the similar lapsing language). I find that Respondent’s
removal of Buckner from the recall list under the circumstances set forth above violated Section
8(a)(3) of the Act.
b) Robert Harris15
Robert Harris was placed on the preferential recall list on October 18, 2014. (Jt. Exh. 1). On
June 11, 2015 an offer letter was sent to Robert Harris regarding a Service Tech position. Like
Buckner’s letter the offer Harris received contained similar lapsing language i.e. “the company
must receive you response no later than 3:00 p.m. on 6/19/2015.” (GC Exh. 42). Harris credibly 20
testified that he did not receive any phone calls regarding the recall offer. (Tr. 203). During this
time frame Harris was working late hours and was not able to get to the post office during
regular post office business hours. He finally received the offer on June 23, 2015. (Resp. Exh.
13-45). After reading the lapse language in the letter, he did not respond to the offer. He
credibly testified that he didn’t respond because “because it was too late. The day I received it or 25
picked it up would have been passed the date.” (Tr. 203). In view of his credible testimony
regarding the difficulties he faced retrieving the letter, his credible testimony that he did not
receive a phone call which was corroborated (Halley testified she didn’t remember calling him
the short response time frame given by Respondent (8 days), and his reliance on the lapsing
language in not responding when he received the letter after the response date, I find the offer 30
invalid. (Tr. 302). In Carrutherrs Ready Mix, Inc., 262 NLRB 739, 749(1982), the Board
considered whether an employer’s telephone calls to strikers were sufficient to satisfy the
requirements of a valid offer of reinstatement. The Board found that telephone calls alone were
insufficient to communicate an offer of reinstatement” if they do not in fact reach the employee.”
In so holding, the Board noted that an employer is bound to take “all measures reasonably 35
available to it to make known to the striker that he is being invited to work.” Although the letter/
phone call facts in this case are juxtaposed to those of Carruthers similar reasoning applies. In
this situation, Respondent had the correct contact information of Harris available to it and when
it did not receive the delivery receipt and knew the letter had not reached him it did not take
reasonable steps to inform him that he was being asked to return to work. I find the lapsing 40
language rendered the offer invalid and in the absence of other reasonable steps to inform him
rendered his disqualification from recall unlawful and in violation of Section 8(a) (3) of the Act.
c) Ernesto Pantoja
45
Ernesto Pantoja was placed on the preferential recall list on October 18, 2014.
During his tenure he held the position of Utility Driver. He held a Class A professional
JD(SF)-13-17
16
driving license which allowed him to perform the highest level driving responsibilities
including dump runs. ( Joint Exh. 3; Tr. 369). Pantoja was removed from the preferential
recall list on or about June 19, 2015. (Joint Exh. 1, GC Exh. 48). The action that
precipitated his disqualification from recall was his receipt of a June 11, 2015, letter
offering him a position as a Service Tech position. (Resp. Exh. 13-82). He testified that 5
upon receipt of the letter he called Halley immediately and told her “he would rather wait
for a position—my position as a utility driver.” (Tr. 374). When asked what the
differences between the Service Tech and Utility driver he responded, “I think the name
says it all. Utility Driver covers all the positions and Service Tech goes to clean the
bathrooms of the worksites.” (Tr. 374). He further testified that as a Utility Driver he 10
only spent 25 to 30 percent of the time doing what would be classified as Service Tech
work. (Tr. 375). In as much as Pantoja was never offered his former or a substantially
similar equivalent position his removal from consideration as eligible for recall was
improper and violated Section 8(a)(3) of the Act. Laidlaw Waste Systems Inc., 313
NLRB 680 (1994). 15
d) Jorge Rodriguez
Jorge Rodriguez was placed on the preferential recall list on October 18, 2014. He was a
Service Tech who was initially offered a Pick Up and Delivery position February of 2015, but 20
declined it. Thereafter, late in February, he was offered a Service Tech Position which he
accepted but was not placed into the position because another striker who had more seniority
than he was awarded the position over him. (GC Exh. 48; Tr. 291).
Another recall attempt was made on or about April 7, 2015. Respondent sent a certified 25
letter to Rodriguez which was returned as undeliverable. (Resp. Exh. 13-109 to 13-110). Despite
the fact that in the past Rodriguez had expressed clear intent regarding his interest in returning to
work and the fact that Respondent knew the letter hadn’t been delivered to him, Respondent
decided to no longer consider him eligible for preferential recall without making any other
efforts to contact him. (Tr. 295-296). This decision was unlawful an in violation of Section 30
8(a)(3) of the Act. See Alaska Pulp Corp. 326 NLRB 522, 528 (1998), finding unlawful the
termination of reinstatement rights when a letter offering reinstatement was retuned as
undeliverable and Respondent made no other efforts to contact despite other available means
such as through the Union.
35
e) Daniel Ruiz
Daniel Ruiz was placed on the preferential recall list on October 18, 2014. He had been
employed with Respondent as a Yard Associate. (Joint Exh. 1). An offer of reinstatement was
sent out to him on January 21, 2015. Respondent never received a delivery receipt for this offer. 40
Halley never spoke to Ruiz regarding the offer and like Jorge Rodriguez was determined to be
ineligible for preferential rehire when no response to the letter was received. No efforts were
made to follow up on the letter and Halley never spoke to Ruiz. The reasoning set forth above in
Alaska Pulp Corp. regarding Rodriguez applies equally to Ruiz. Respondent had other available
means to contact Ruiz including through the Union but made no efforts to do so prior to 45
considering him ineligible for recall and was therefore unlawful and violated Section 8(a)(3) of
the Act. See Alaska Pulp Corp. 326 NLRB 522, 528 (1998)
JD(SF)-13-17
17
5. Laidlaw Violations
It is well settled that that strikers who have been replaced by permanent replacements
remain employees entitled to full reinstatement upon the departure of the replacements. Laidlaw 5
Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970). After each of the five individuals above Buckner, Ruiz, Rodriguez, Harris and Pantoja
were unlawfully determined to be ineligible for recall in violation of Section 8(a) (3) of the Act
Respondent continued to place persons into vacant positions that they could have been recalled
into and again violated the Act. More specifically other Service Tech positions were filled after 10
each was determined ineligible for preferential recall. (GC Exh. 48; Joint Exh.1 Resp. Ex. 21).
6. The Application of Hot Shoppes

While this matter was pending, the Board issued its decision in American Baptist Homes 15
of the West d/b/a Piedmont Gardens, 364 NLRB No. 13 (2016). In its decision, the Board
analyzed and provided further guidance regarding the application of the legal principles espoused
in Hot Shoppes Inc., 146 NLRB 802, 805 (1964) as it relates to the permanent replacement of
economic strikers. The Board noted that, “the permanent replacement of strikers is not always
lawful. The Board will find a violation of the Act if it is shown that, in hiring permanent 20
replacements, the employer was motivated by “an independent unlawful purpose.” (citing Avery
Heights, 343 NLRB 1301, 1305 ( 2004). The Board after analyzing historical precedent
concluded that, “the phrase independent unlawful purpose” includes an employer’s intent to
discriminate or to encourage or discourage Union membership.” Id. The Board further clarified
that “Hott Shoppes does not require the General Counsel to demonstrate the existence of an 25
unlawful purpose extrinsic to the strike but, rather only that the hiring of permanent replacements
was motivated by a purpose prohibited by the Act.”
Applying the Board’s reasoning to the facts of this case, I find that the evidence
established that Respondent was motivated by an independent unlawful purpose. At the outset it 30
worth mentioning that Respondent maintained what it characterized as a “Non-Union
Philosophy.” Its Associate Handbook that contains the following passage:
Non-Union Philosophy: United Site Services will do everything in its legal power to
prevent any outside, third party, who is potentially adversarial, such as a union from intervening 35
or interrupting the one-on-one communications or operational freedoms that we currently enjoy
with our associates. (GC Exh. 29 p. 7.)
Respondent’s clear pattern of intentional and unlawful actions described above were a
reflection of its stated “Non-Union Philosophy.” Contrary to its written policy, the policy that 40
was actually carried out in practice was implemented without regard to whether Respondent
violated the law and done so with improper intentions.2 The actual implementation of
Respondent’s policy as it took form in Respondent’s actions was used and intended to punish

2 In American Baptist Home of the West, the Board recognized what it characterized as, “the “widely
accepted” principle that otherwise lawful acts can be rendered unlawful when motivated by improper
intentions.” Id. (citations omitted).
JD(SF)-13-17
18
strikers and discourage Union membership. As noted above, when Respondent notified the
Union that it had filled “all vacant positions” it knew or should have known that this was false.
This knowledge in and of itself is sufficiently probative of “independent unlawful purpose.” The
record is however replete with other indicia of unlawful purpose. For example, the affirmative
efforts to mask sham replacements as “permanent” when Respondent knew, or should have 5
known, that they were not “permanent” is substantial evidence of unlawful purpose and its
efforts to implement its “Non-Union Philosophy.” The unlawful effective discharge of 14
employees also smacks of “independent unlawful purpose.” So too, the blocking of strikers from
returning to the work place and determining them ineligible for recall evidences unlawful
purpose. All of the above referenced violations of the Act were in fact efforts which served to 10
punish strikers by not allowing them to return to the positions which they could have
immediately occupied after the strike and as will be discussed in more detail part of
Respondent’s efforts to cause disaffection and cleanse its workplace of the Union. All of these
actions when viewed independently and taken together manifest “intent to discriminate” and/or
“intent to discourage Union membership” and thus establish “independent unlawful purpose” 15
Applying the principles enunciated by the Board in American Baptist Homes of the West d/b/a
Piedmont Gardens to the facts of this case, I find Respondent violated the Act.
Standing alone is the unlawful purpose which is evidenced in the timing of Respondent’s
notification to the Union. Instead of acting in good faith and notifying the Union of its intentions 20
to replace strikers Respondent worked behind the scenes gathering as many persons that it could
attempt to pass as “permanent replacements” before providing the Union with any notification.
The court in New England Health Care Employees Union addressed a question regarding
whether the Board properly found that an employer’s decision to keep the hiring of permanent
replacements secret until the employer could “get as many bodies hired before the union found 25
out” could support the finding of an “independent unlawful purpose.” The court noted:
Absent such countervailing considerations, and even if one adopts the Board's
own analytic framework, logic suggests that an employer seeking to enhance its
bargaining leverage by hiring permanent replacements would have every 30
incentive to publicize the effort, and that an employer seeking only to prolong its
ability to withstand the strike would be indifferent to whether the strikers and the
union knew what it was doing. Conversely, it would appear that employers with
an illicit motive to break a union have a strong incentive to keep the ongoing
hiring of permanent replacements secret. The replacement of over half of a 35
unionized workforce with nonunion workers would devastate the union's power
and credibility. An employer seeking to land such a blow cannot simply announce
the hiring of large numbers of replacements, because in order to justify a refusal
to allow striking workers to return to work under the “permanent replacement”
safe harbor, the employer must have achieved an employment relationship with 40
the permanent replacements somewhere between “a mere offer, unaccepted when
the striker seeks reinstatement” and “actual arrival on the job.” See H & F Binch
Co. v. NLRB, 456 F.2d 357, 362 (2d Cir.1972). So an employer seeking to punish
strikers and break a union therefore needs enough time to establish an
employment relationship with a large number of permanent replacements before 45
the union can react by offering to return to work, and will therefore have a strong
incentive to keep the replacement program secret for as long as possible.
JD(SF)-13-17
19
Id. at 195–196.
An employer who waits until it has rounded up enough employees to falsely claim all of
the positions are filled before notifying the Union of its decision to replace employees creates a 5
“logical implication” that Respondent’s decision was the product of an “illicit motive.” See
American Baptist Homes of the West d/b/a Piedmont Gardens, supra at n. 15. An employer with
an illicit motive of breaking a union has a strong incentive to wait until after it can claim to have
hired all of its alleged permanent replacements to notify strikers because once the strikers find
out about the decision to replace them they could immediately unconditionally offer to return to 10
work. In this case, the employer began its striker replacement efforts on the first day. Had the
strikers been informed on the first day they might have voted to unconditionally return that very
same day, possibly even within hours. I find that given all of the evidence of other unlawful acts
in this case, Respondent’s delay before notifying the Union of its decision to replace strikers
was calculated to deny strikers the opportunity of returning to work and an attempt to punish 15
strikers, “discourage union membership” and manifests a desire to interfere with protected
activity.
I find examining the totality of the evidence including the evidence specifically
referenced in the above paragraphs that General Counsel has sustained its initial burden of 20
showing that an independent unlawful purpose was a motivating factor in the employer’s
decision to permanently replace economic strikers. Thus, the burden shifts to show that it would
have taken the same action even in the absence of unlawful purpose. I find that Respondent has
failed in this regard. Moreover, I find its asserted reasons “to minimize training costs, reduce
turnover, and maintain customer service levels” are mere pretexts. The reasons set forth by 25
Respondent are simply logically inconsistent with the hiring of replacements. In the first
instance, new employees would no doubt incur more training costs as well as the undisputed
demonstrated additional costs to convert temporary Labor Finder’s employees to permanent
status. Secondly, the strikers knew the work, knew the routes and had been performing the work
in a satisfactory fashion. Had Respondent been concerned about customer service levels and 30
“turnover” it could have on the first day of the strike disclosed to the strikers its plan to replace
them to induce them to abandon the strike and return to work. The reasons advanced by
Respondent are simply not credible and don’t even address the critical issue of why it waited
until it falsely claimed it had filled positions to disclose the hiring of permanent replacements.
Thus, I find, that Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate 35
permanently replaced economic strikers upon their unconditional offer to return to work. 3
40

3 Alternatively, I would find that the above described false claims and delay in providing the Union
notice of the permanent replacement of strikers is “inherently destructive” of employees’ right to strike.
See Great Dane, 388 U.S. 26 (1967). The right to strike also includes enmeshed within it not only the
right to strike but also the right to end the strike and return to work.
JD(SF)-13-17
20
7) The Withdrawal of Recognition.
It is established law that “an employer may not withdraw recognition from a union while
there are unremedied unfair labor practices tending to cause employees to become disaffected
from the union.” Broadway Volkswagen, 342 NLRB 1244, 1247 (2004) (citations omitted). In 5
determining whether a causal relationship exists between the unremedied unfair labor practices
and the loss of union support, the Board considers the following factors: (1) the length of time
between the unfair labor practices and the withdrawal of recognition; (2) the nature of the
violations, including the possibility of a detrimental or lasting effect on employees; (3) the
tendency of the violation to cause employees disaffection; and (4) the effect of the unlawful 10
conduct on employees' morale, organizational activities, and membership in the union. Master
Slack Corp., 271 NLRB 78, 84 (1984). See also, Beverly Health & Rehab Services, 346 NLRB
1319 (2006).
Applying these factors here, I conclude that the Respondent's violation of the Act by 15
refusing to recall striking employees would likely cause the Union to lose support among
employees. I find that the legion of unfair labor practices, discussed above, would, when viewed
objectively, tend cause employee disaffection given that the withdrawal of recognition occurred
a mere 10 weeks after the unfair labor practices were committed. I also find that the unlawful
refusal to reinstate union strikers and instead employing others not sympathetic to the strike 20
would, when viewed objectively, have the tendency to cause disaffection. Also, the effects of
the unfair labor practices were both detrimental and lasted through the time the withdrawal
petition was circulated. See D&D Enterprises, 336 NLRB 850, 859 (2001). I find strong and
compelling objective evidence in the record to show that a mere 10 weeks prior to the unfair
labor practices there was a lack of disaffection. The Union won a Board certified election, the 25
union members were actively participating in union affairs and the majority chose to strike with
only 4 choosing to cross the picket line. This lack of prior disaffection is strong evidence of the
causal connection to the unfair labor practices. See Bunting Bearings Corp., 349 NLRB 1070
(2007), holding that causal connection established in part by lack of prior evidence of
disaffection. It is apparent that any Union loss of support among employees was causally related 30
to the unfair labor practices discussed above.
In the alternative, I agree with General Counsel’s assertion that in view of the fact that all
of the replacements are regarded as illegitimate, Respondent cannot demonstrate an actual loss of
majority. Discounting the illegitimate replacements, the Unit consisted of 25 employees only 7 35
of which constitute valid signatures. (GC Br. at 92-93, Jt. Ex 1, ¶¶27,33). I therefore find that
the Respondent's withdrawal of recognition of the Union violated the Act.
CONCLUSIONS OF LAW
40
The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
1. The Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate
the economic strikers upon their unconditional offer to return to work.45
JD(SF)-13-17
21
2. The Respondent violated Section 8(a)(3) and (1) of the Act by falsely claiming
replacements were permanent when in fact they were not.
3. The Respondent violated Section 8(a)(3) and (1) of the Act by “effectively
discharging” 14 employees.5
4. The Respondent violated Section 8(a)(3) and (1) of the Act by declaring
employees ineligible for recall.
5. The Respondent violated Section 8(a)(3) and (1) of the Act by replacing strikers 10
with an independent unlawful motive.
6. The Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing
recognition of Local 315 as the bargaining representative of the employees at
Respondent’s Benicia facility. 15
Remedy
Having found Respondent has engaged in certain unfair labor practices, I find
Respondent must be ordered to cease and desist and to take certain affirmative action designed to 20
effectuate the policies of the Act.
a) Respondent shall be required to reinstate all Unit employees who engaged in the
strike and make whole in all respects for all losses whatsoever resulting from
Respondent’s unlawful actions and its failure to reinstate the strikers beginning 25
October 17, 2014. Back pay shall be computed on a quarterly basis from the date of
the failure to reinstate October 17, 2017, to the date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 630
(2010). Respondent shall file a report with the Regional Director for Region 20,
within 21 days of the date the amount of back pay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar
year(s). AdvoServ of New Jersey, 363 NLRB No. 143 (March 11, 2016). The
Company shall also Compensate employees for the adverse tax consequences, if any, 35
of receiving one or more lump-sum back pay awards covering periods longer than 1
year. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).4

b) Respondent will also be ordered to recognize and bargain in good faith with the
Union as the exclusive bargaining representative of the Unit. Further, in the event 40
that Respondent changed the units terms and conditions of employment following its
withdrawal of recognition from the Union, upon the Union’s request rescind such
changes and restore the status quo ante and make whole the unit employees for losses

4 General Counsel argued that “search for work” and “work related expenses” ought to be charged to
Respondent regardless of whether the discriminate received interim earnings during the period. As the
Board has yet to authorize such as part of make whole relief, I decline to award it as a remedy.
JD(SF)-13-17
22
in earnings and other benefits which they may have suffered as a result of such
changes.
c) Respondent shall upon resumption of bargaining, bargain in good faith with the
Union on request for the period set forth in Mar-Jac Poultry Co., 136 NLRB 785 5
(1962).
d) Respondent shall schedule a meeting during work hours with its employees and in the
presence of a Board Agent read the attached notice to employees in English and
Spanish. In the alternative, the Respondent shall arrange for a Board agent to read the 10
notice in English and Spanish to employees during work hours in the presence of
Respondent’s supervisors.
e) Respondent will be ordered to post an appropriate notice.
15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
Order
20
The Respondent, United Site Services of California, Inc., (Benicia, CA), its officers,
agents, successors, and assigns, shall
1. Cease and desist from engaging in the following conduct
(a) Failing to reinstate the economic strikers upon their unconditional offer to return to
work. 25
(b) Discharging strikers upon their unconditional offer to return to work.
(c) Failing and/or refusing to recall employees to their former or substantially
equivalent positions of employment.30
(d) Terminating employees reinstatement rights after tendering inadequate or invalid
offers of reinstatement.
(e) Withdrawing recognition of Local 315 as the bargaining representative of the
employees at Respondent’s Benicia facility and thus failing to bargain with the Union. 35
(f) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

5 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)-13-17
23
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) All strikers shall be offered reinstatement to their former positions if reinstatement
has not already occurred and shall make the employees whole in all respects for any
loss of earnings and other benefits suffered as a result of the unlawful conduct in the 5
manner set forth in the remedy section of the decision. . Compensate the employees
for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and
shall file a report with the Regional Director for Region 20, within 21 days of the date
the amount of back pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar year(s).10
(b) Preserve and provide within 14 days 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 back pay due under the
terms of this Order.15
(c) Recognize and bargain in good faith with the Union as the exclusive bargaining
representative of the Unit. Further, in the event that Respondent changed the units
terms and conditions of employment following its withdrawal of recognition from the
Union, upon the Union’s request rescind such changes and restore the status quo ante
and make whole the unit employees for losses in earnings and other benefits which 20
they may have suffered as a result of such changes.
(d) Within 14 days after service by the Region, post at its facility in Benicia County
California copies of the attached notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director after being signed by the Respondent's 25
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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In addition to physical posting of paper notices, the notices shall be 30
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 proceedings, the Respondent shall duplicate and mail, at its own expense, a copy 35
of the notice to all current employees and former employees employed by the
Respondent at any time since October 17, 2014.
(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 40
steps that the Respondent has taken to comply.

6 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)-13-17
24
Dated, Washington, D.C. April 3, 2017
5

Dickie Montemayor
Administrative Law Judge
~
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.
The Teamsters Local 315, IBT is the employee’s representative in dealing with us
regarding wages, hours or other working conditions of employees in the following
unit:
All full time and regular part-time Service Technicians, Lead Service
Technicians, Pick Up and Delivery Drivers, Mechanics, Laborers, and Fence
Installers employed by the Employer at its 1 Oak Road, Benicia California
facility, but excluding Dispatchers, supervisors and guards as defined by the Act
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT fire employees or otherwise discriminate against employees because of
their participation in a lawful strike or because of their support for Teamsters Local 315, IBT,
or any other labor organization.
WE WILL NOT fail or refuse to reinstate employees engaged in a lawful economic strike,
upon their unconditional offer to return to work, where it is shown, as in this case that we
were motivated by an independent unlawful purpose in hiring permanent replacements for
the striking employees.
WE WILL NOT fail or refuse to reinstate employees engaged in a lawful economic strike to
their former or substantially equivalent positions, following their unconditional offer to
return to work where it is shown, as in this case that we were motivated by an independent
unlawful purpose in hiring permanent replacements for the striking employees.
WE WILL NOT fail or refuse to recall unreinstated economic strikers to their former or
substantially equivalent positions, following their unconditional offer to return to work, when
vacancies exist in those positions.
WE WILL NOT terminate our employees reinstatement rights after tendering to them
inadequate and invalid offers of reinstatement.
WE WILL NOT withdraw recognition from the Union or refuse to recognize and bargain
with the Union as your bargaining representative.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of
the Act.
WE WILL make all strikers whole for any loss of earnings and other benefits suffered as a
result of our unlawful actions.
WE WILL, within 14 days from the date of the this Order, offer our employees who went on
strike on October 6, 2014, and who have not yet been reinstated, full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed, dismissing, if
necessary any permanent and nonpermanent replacements hired during the strike.
WE WILL make whole the employees who went on strike on October 6, 2014, and who
have not yet been reinstated, and the employees who may have been reinstated but whose
reinstatement was delayed because a permanent replacement supposedly occupied their
position on October 17, 2014, for any loss of earnings and other benefits suffered as a result
of the discrimination against them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the this Order, remove from our files any
reference to our unlawful termination, termination of reinstatement rights, and/or failure to
reinstate the striking employees, and we will, within 3 days thereafter, notify each of them in
writing that this has been done and that our unlawful failures will not be used against them in
any way.
WE WILL, on request, bargain with the Union as your representative, and for 12 months
thereafter as if the certification year had not expired, about your wages, hours, and other
working conditions. If an agreement is reached with the Union, we will sign a document
containing that agreement.
UNITED SITE SERVICES
(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.
NLRB Region 20
901 Market Street, Suite 400
San Francisco, CA 94103
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-139280 by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5130.