Iberia Road Markings, Corp.

IBERIA ROAD MARKINGS CORP. 353 NLRB No. 101 1009 Iberia Road Markings Corp. and Alecc Ortiz Iberia Road Markings Corp. and Alecc Ortiz, Peti- tioner and Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and International Union of Painters and Allied Trades, Local 8A–28A, AFL–CIO. Cases 29–CA–27930 and 29–RD– 1070 February 27, 2009 DECISION, ORDER, AND DIRECTION BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On May 18, 2007, Administrative Law Judge Mindy E. Landow issued the attached decision. The Respondent filed exceptions and a supporting brief. Intervenor Inter- national Union of Painters and Allied Trades, Local 8A– 28A, AFL–CIO filed exceptions, and the Respondent filed an answering brief. The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge’s credibility resolutions, we find it unneces- sary to rely on the adverse inference drawn by the judge from the Re- spondent’s “unexplained failure” to adduce testimony from employee Ray Dominguez to corroborate President and Part Owner Jose Freire’s version of a phone conversation with Dominguez that occurred shortly after Freire received the decertification petition. 3 We agree with the judge’s recommendation that the challenged bal- lots of Alecc Ortiz, Miguel Freire, and Danny Travers be opened and counted. In addition, we shall direct the Regional Director to open and count the ballot of Javier Figueira. The challenge to Figueira’s ballot was overruled by the Regional Director in his December 14, 2006 Report on Challenges, Order Consolidating Cases, and Notice of Hear- ing. orders that Respondent Iberia Road Markings Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. DIRECTION IT IS DIRECTED that the Regional Director for Region 29 shall, within 14 days from the date of this Decision, Order, and Direction, open and count the ballots of Alecc Ortiz, Miguel Freire, Danny Travers, and Javier Figueira. The Regional Director shall then prepare and serve on the parties a revised tally of ballots and issue the appro- priate certification. Emily DeSa, Esq., for the General Counsel. Joshua D. Rose and Fred E. Klein, Esqs. (Klein Zelman Rothermel LLP), of New York, New York, for the Respon- dent/Employer. Tyler D. Malin and Roger H. Madon, Esqs. (Madon Malin, P.C.), of New York, New York, for the Intervenor. DECISION STATEMENT OF THE CASE MINDY E. LANDOW, Administrative Law Judge. On October 2, 2006,1 a petition for an election was filed by Alecc Ortiz (Ortiz or Petitioner) seeking to decertify Local 917, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Local 917), as the representative of certain employees of Iberia Road Mark- ings Corp. (Respondent or the Employer). International Union of Painters and Allied Trades, Local 8A–28A, AFL–CIO (Lo- cal 8–A) intervened on the basis of a showing of interest. Pursuant to a decision and direction of election (the Deci- sion) issued on October 19, an election by secret ballot was conducted on November 13, among the employees in the fol- lowing unit: All full-time and regular part-time drivers who are engaged in driving kettle trucks transporting principally the road marking material to the application site, breaking block (can or bag), assisting thin loading material, feeding the kettle, loading the truck, in layout or traffic control and any other duties required as part of the crew operations, secretary, crew chiefs and la- borers (stripes) employed by the Employer out of its 104 Lombardy Street, Brooklyn New York facility and excluding guards and supervisors as defined in the Act.2 1 All dates herein are in 2006 unless otherwise specified. 2 Pursuant to the petition, a hearing was held before a hearing offi- cer. The Employer did not appear at the hearing, but had previously entered into certain stipulations for the record. At the hearing both labor organizations stipulated, and the Acting Regional Director found, among other things, that the unit set forth above is an appropriate one for purposes of collective bargaining. The Acting Regional Director also found that the Employer is engaged in the construction industry and, therefore, in addition to employees who would be eligible to vote under the Board’s traditional criteria, also eligible to vote are all unit employees who have been employed for a total of 30 working days or more within the 12 months immediately preceding the election eligibil- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010 There were determinative challenges to the ballots of six vot- ers.3 Thereafter, on December 14, based upon a charge and first amended charge filed by Ortiz on October 3 and November 30 respectively, a complaint and notice of hearing issued alleging that Respondent violated Section 8(a)(1)(3) and (4) of the Act by discharging Ortiz because he filed a decertification petition with the Board. Respondent filed an answer denying the mate- rial allegations of the complaint. On December 14, the Regional Director for Region 29 also issued a report on challenges, order consolidating cases, and notice of hearing (the report) which sustained the challenges to the ballots of two voters on the basis that they were corporate officers and owners of the Employer, overruled the challenge to the ballot of one employee and di- rected that a hearing be conducted to resolve the challenges to the votes of Ortiz, Miguel Freire, and Danny Travers. The hear- ing on challenges was consolidated for hearing with the unfair labor practice case. As regards the challenged ballots, the issues defined for hearing by the report are (1) whether Ortiz was discharged for cause on October 2, or in violation of the Act; (2) whether Miguel Freire, as an employee-relative of the Em- ployer’s owner and President is “aligned with management” or has a sufficient community of interest with other bargaining unit members to warrant his inclusion in the unit; and (3) whether Danny Travers was laid off on December 7, 2005, or voluntarily quit prior to the completion of the last job for which he was employed. I heard these consolidated cases on February 5 and 6, 2007, in Brooklyn, New York.4 On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Respondent/Employer and Local 8- A,5 I make the following: ity date, or who have had some employment during that period and who have been employed 45 days or more within the 24 months immedi- ately preceding the election eligibility date. Employees who had been terminated or quit voluntarily prior to the last job for which they were employed would not be eligible to vote under this formula. See Steiny & Co., 308 NLRB 1323 (1992); Daniel Construction, 133 NLRB 264 (1961), modified at 167 NLRB 1078 (1967). None of the parties in- volved herein exercised their right, under Section 102.67 of the Board’s Rules and Regulations, to file a request for review of the Decision with the Board. 3 The election resulted in a vote of six votes for Local 917, eight votes for Local 8–A with six challenged ballots. 4 Local 917 did not enter an appearance herein. 5 On April 5, Local 8-A filed its brief with the undersigned. Briefs had been due on March 27. In a cover letter, copies of which were sent to the Employer and the General Counsel, Local 8–A represented that it had served its brief on the Regional Director in the mistaken belief that I was serving as hearing officer rather than as administrative law judge in this matter, and was apprised of this error only after counsel for the General Counsel returned to the Regional Office after a vacation. Inas- much as no other party has raised an objection, I am accepting Local 8- A’s brief and will consider the arguments raised therein to the extent it is appropriate to do so, as discussed below. FINDINGS OF FACT I. JURISDICTION The Respondent, a domestic corporation with its principal office and place of business located at 104 Lombardy Street, Brooklyn, New York, is engaged in the road marking business. During the past year, which period is representative of its an- nual operations generally, in the course and conduct of its busi- ness operations, Respondent purchased and received at its Brooklyn facility road marking material valued in excess of $50,000 directly from suppliers located outside the State of New York. Respondent admits, and I find, that at all material times it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The record establishes, and I find that Local 917 and Local 8-A are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Respondent’s Business Operations Respondent is a small privately-owned corporation whose primary business is painting lines on public streets. Jose Freire (Freire), who has been the President of the company for the past 25 years,6 is one of five owners, each of whom owns 20 percent of the stock. Other owners include Freire’s brother and cousin. Jose Manuel Suarez (Suarez), who testified herein, is the shop foreman, vice president of the corporation, and a co- owner as well.7 He is oftentimes referred to as “Manny.” Respondent’s facility is located in the Greenpoint section of Brooklyn, geographically equidistant between the Queensboro (also known as the 59th Street) Bridge and the Williamsburg Bridge. Employees work in crews consisting of a foreperson, one or two laborers, and a “kettle truck” driver.8 6 Freire testified to an extensive tenure in the industry. Prior to as- suming ownership of Respondent, Freire worked for Permaline Corpo- ration, beginning as a laborer and winding up as vice president. Coun- sel for the Respondent elicited testimony that, during the 1978–1979 season, employees of the company went on strike for over 2 months, that hard feelings continued afterward and there were numerous in- stances where the company’s equipment was sabotaged. The then- owner tired of the situation and put the company up for sale. Freire, together with certain coworkers and other investors, purchased the New York operations of this company. 7 Suarez did not offer any testimony regarding his ownership interest in or position as vice president with Respondent. However, as is appar- ent from the Report, Suarez voted in the election, and his ballot was challenged by the Petitioner and Local 8–A. In sustaining the challenge to his ballot, the Regional Director noted that, “there is no dispute that Suarez is the Employer’s Vice President . . . [and] owns 20% of the Employer’s outstanding stock.” Finding Suarez to be a corporate offi- cer and owner, the Regional Director sustained the challenge to his ballot. I take administrative notice of the Regional Director’s findings as regards Suarez’s ownership in and position with Respondent. I fur- ther note that Freire testified that Suarez was a co-owner of Permaline, as well. 8 The crew operates two trucks. These are known as the “kettle truck” and the “pickup truck.” The kettle truck contains the equipment for melting the thermoplastic material which is used to “paint” the street lines. The pickup truck, which always follows the kettle truck, is IBERIA ROAD MARKINGS CORP. 1011 Respondent’s business operates primarily on a seasonal ba- sis, typically from March or April through November or De- cember. At the end of each season, most of the employees are laid off. Two or three of the most senior employees are retained to maintain the equipment and work in the shop. Employees are recalled from lay off, as business allows, in the order of their seniority. During the period of their lay off, employees file for unemployment benefits and many seek other employment. Local 917 has been the collective-bargaining representative of Respondent’s employees for a number of years. The most recent collective-bargaining agreement was due to expire on September 30.9 Article 14 of the agreement (Discharge) pro- vides as follows: No employees shall be discharged except for good and suffi- cient cause. . . Examples of such good and sufficient cause include, but are not limited to: proven theft of money, goods or merchandise, proven drunkenness or proof of being under the influence of alcohol or drugs during working hours, call- ing an unauthorized strike or walkout, assault on Employer or its representatives, failure to report an accident of which the employee would normally be aware, proven recklessness re- sulting in a serious accident while on duty, the carrying of un- authorized passengers in the cab or truck while on duty, en- gaging in unauthorized transportation of merchandise or goods for personal gain during working hours and direct re- fusal to obey orders of the Employer which are not in viola- tion of this agreement. The Discharge of Alecc Ortiz Ortiz was employed by the Respondent for approximately 13 years, primarily as a laborer and occasionally as a foreman. His principal duties were to pour thermoplastic into the kettle drum to be melted, sweep debris out of the way, and flag and direct traffic. Ortiz’ Prior Discipline In November 2003, Ortiz was involved in an incident which led to his discharge, which was then converted into a 1-week suspension. On this occasion, Ortiz had removed some propane tanks from their storage area and was preparing to load the kettle truck assigned to his crew. Shop foreman Suarez in- structed Ortiz to give the tanks to another crew. Ortiz, who had previously injured himself lifting and carrying such tanks, be- came upset at this direction and began to argue with Suarez. Suarez left the area to get a cup of coffee, but Ortiz remained upset. His comments provoked coworker Jose Raymond Dominguez (Dominguez), the crew chief on the truck which was designated to receive the propane, and Dominquez threw a punch at Ortiz, missing him. Suarez reported the situation to Freire, who came downstairs to the shop floor and fired both Ortiz and Dominguez. According to the accounts offered by both Ortiz and Dominquez and as set forth in a contemporane- ous letter prepared by Freire and sent to Local 917 (based upon driven by one of the laborers and is used for, among other things, moni- toring the gauges on the kettle truck. 9 On August 10, Respondent and Local 917 entered into a memoran- dum of agreement extending the collective-bargaining agreement for a 6 month period from October 2006 to April 2007. the events as reported to him at the time by Suarez),10 Dominguez made one unsuccessful attempt to hit Ortiz, which he did not return.11 Nevertheless, Ortiz was viewed as the pro- vocateur and instigator of the incident. After both men were fired, the Union intervened and Dominguez was allowed to return to work on the following day. Ortiz’ discharge was con- verted to a 1-week suspension and, as a condition of returning to work, he was required to acknowledge by his signature a letter written by Freire to Local 917 official Paul Isaac which states, in pertinent part, as follows: As per our telephone conversation today’s date I agree with you that Ray Dominguez can come back to work tomorrow November 5, 2003. However, since Alecc Ortiz was the insti- gator on this fight he will be suspended without pay for one working week. Therefore, this letter has to be signed by you and Mr. Ortiz that if he starts another fight or he gives any of his superiors problems he will be terminated. Freire testified that his understanding of this letter was that Ortiz would be reinstated after his suspension, “with the condi- tion that he would never be in problems again . . .” Ortiz simi- larly testified that he realized that if he engaged in any more misconduct, he would be terminated. Ortiz received no other discipline during his employment with Respondent. The Decertification Petition In early September, Union Representative Isaac met with employees and informed them that they might have to accept a reduction in pay and/or benefits. Employees were unhappy about these proposals and decided to try to decertify Local 917. Approximately six employees visited the Board’s Brooklyn Regional Office and met with the information officer, who advised them to return in October, after the collective- bargaining agreement expired. The information officer further advised employees that it was not necessary for them all to return, that one or two individuals would suffice. Ortiz subsequently prepared a petition stating, in essence, that employees no longer wished to be represented by Local 917, and all the current employees signed it. He returned to the regional office on October 2. 10 This letter outlines the employees’ misconduct as follows: “Alecc started to argue with Manny [Suarez] and getting his faced (sic) close to him and screaming. As the coffee truck pulls in Manny ignores him and went to get a cup of coffee. At that time Alecc approached Ray [Dominguez] screaming and insulting him and after a while Ray lost his patience and through (sic) a punch to Alecc. At that point Manny called me. I went down and heard what happened and at that moment I fired them both. I think that Ray would not have punched Alecc if he did not instigate him as he did.” 11 In his testimony, Suarez offered an account of events differing from that of other witnesses and from what he apparently reported to Freire on that occasion. He stated that the two men were fighting, al- though he did not see who threw the first punch. Later, Suarez testified that he saw Ortiz throw punches at Dominguez: “I saw him swinging at him, but I don’t know if he really got to punch him or not but I know they were fighting.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012 Events of October 2 On October 2, Ortiz was working the night shift, which runs from 3 a.m. to 2 p.m.12 The other members of his crew were Dominguez, who was the foreman, pickup truck driver Manuel Vazquez (Vazquez), and kettle truck driver Julio Rosas (Rosas).13 The men were working on a project, extending over several days, painting lines along Fifth Avenue (in Manhattan) in cross streets ranging from the upper 60’s to the lower 20’s. On that day, the crew left the shop, stopped off for breakfast, and then drove to the work site via the Queensboro Bridge. It appears from the testimony that the crew’s work on that day was concentrated above 50th street. Ortiz had the document containing employee signatures with him, and at the beginning of the work day he informed Dominguez that, if he had a chance, he would go to the Labor Board to drop it off. Vazquez testified that at some point Ortiz showed him an envelope and stated that he wanted to drop it off. He could not specifically remember when that occurred, but stated that it was “maybe during the traveling from—from where we had lunch, after that.” None of the employees who testified herein provided testimony regarding further discussion of the petition or Ortiz’ apparent plan to bring it to the Board that day. Crews working the night shift frequently complete their work for the day prior to stopping for their lunchbreak, and this is what occurred on October 2. The crew worked straight through and stopped for the day at approximately noon. They then took their meal break from noon to 1 p.m. The testimony as to where the crew ate on that day is not consistent, but the record establishes that the site, a diner away and further down- town from the work site, was selected by Foreman Dominguez, at a location where parking was easier. After the lunch hour was completed, the men got into the trucks and proceeded into Brooklyn via the Manhattan Bridge.14 Again, the record estab- lishes that this route was selected by Dominguez, with Rosas driving the kettle truck. Vasquez, driving the pickup truck with Ortiz as passenger, followed behind.15 When asked why he made the decision to take the Manhattan Bridge as opposed to an uptown route, Dominguez was unable to provide a specific reason. He stated his decision to take the Manhattan Bridge rather than the Williamsburg Bridge (which is closer to Re- 12 The record establishes that due to the flow of traffic or other un- foreseen circumstances, employees will at times return to Respondent’s facility either shortly prior or subsequent to the end time of their shifts. They are neither docked pay nor provided additional compensation for these variances in hours. 13 All three members of the crew, current employees, were called to testify by the Respondent. 14 The record establishes that there are four east river crossings available to a truck carrying propane: the uptown Triborough Bridge; the midtown Queensboro Bridge; the downtown Manhattan Bridge; and the downtown Williamsburg Bridge. According to witness testimony, assuming traffic or other considerations are not at issue, the most direct route to the shop from a midtown location is via the Queensboro Bridge; and the most direct route from a downtown location is via the Williamsburg or Manhattan Bridge. 15 The record establishes that the usual practice is for the kettle truck to precede the pickup truck so that the crew on the pickup truck can monitor the gauges on the kettle truck. spondent’s facility) was based upon a “road situation” near the latter. Rosas, who was driving the kettle truck, similarly ob- served some “police activity” on the street leading to the Wil- liamsburg Bridge, but Vasquez failed to recall any such diffi- culty, and said he just followed the kettle truck. Dominguez stated that while working on this Fifth Avenue project, the crew had taken the Queensboro Bridge back to the shop on almost all occasions, except for once or twice when they were working downtown at about 20th Street. He additionally offered unre- butted testimony that he was never questioned about his selec- tion of a route; that on other occasions had used downtown bridges to return to the facility and that there was never one particular route that the drivers were supposed to follow. Once the men crossed the Manhattan Bridge, they stopped at a deli to get a drink. As Dominguez testified, it was a little early and there was no traffic. From the testimony of the employee witnesses, it appears that it was common practice for them to stop off to get a drink on the way back to the shop irregardless of the route they took back to the facility.16 The deli the crew stopped at that day was located a few blocks from the Board’s Brooklyn Regional Office, and Ortiz told Dominquez that he was going to drop off the employee petition. Vazquez drove Ortiz to the Regional Office, dropped him off, and returned to the deli. Ortiz met with the information officer, submitted the paperwork and then ran back to the trucks. Dominquez and Rosas had already left for the shop. Vazquez and Ortiz were behind them by about 15 to 20 minutes.17 It is undisputed that the petition filed by Ortiz was time stamped at 1:48 p.m., which is during the course of his work day. It is also undisputed that the Region’s offices were open on that day from 9 a.m. to 5:30 p.m. Ortiz is Discharged At about 2:20, Freire was in his office having lunch when Dominquez entered. The two men exchanged pleasantries. At approximately 4 p.m. Freire received a facsimile copy of the decertification petition filed earlier that day, signed by Ortiz. Freire testified that he failed to understand the significance of the document at the time. In addition to a copy of the petition itself, the Regional Office sent a transmittal slip, containing the following information: Attached is an advance copy of a representation petition filed today with the National Labor Relations Board. This petition constitutes a request to this Agency to conduct a union repre- sentation election among the unit of employees described in paragraph 5 of the petition. This advance copy is being pro- vided for your information. More detailed information is be- ing forwarded to you today. PLEASE NOTE THAT A NOTICE OF HEARING, COPY ATTACHED IS ALSO BEING ISSUED TODAY FOR A 16 Rosas testified that employees typically stop for a drink on their way back to the shop, even if they have just recently finished lunch. Similarly, Ortiz testified that the crew usually stops for a drink of water or Gatorade. 17 The record indicates that Dominguez and Rosas returned to the shop at approximately 1:45 and Ortiz and Vazquez returned at ap- proximately 2:05 p.m. IBERIA ROAD MARKINGS CORP. 1013 HEARING TO BE CONDUCTED ON THE DATE SET FORTH IN THE NOTICE. THE HEARING WILL BE CONDUCTED ON THE DATE SPECIFIED UNLESS A POSTPONEMENT THEREOF IS REQUESTED PURSUANT TO THE ATTACHED INSTRUCTIONS. THE HEARING WILL BE CONDUCTED ON CONSECUTIVE DAYS UNTIL CONCLUDED. According to Freire, he then called Dominquez, and started yelling at him over the phone, calling him a “son of a bitch” and asking him, “why do you take my trucks and time to the Labor Board on Flatbush Avenue and J Street, when you guys were supposed to take the 59th Street Bridge coming back to minimize the problems of having an accident.”18 According to Freire, Dominguez replied that he had told Ortiz “not to do it” because he was already getting into problems. Responding to specific questions by Respondent’s counsel, Freire stated that Dominquez failed to mention anything about eating lunch downtown or police activity at the Williamsburg Bridge. Freire failed to present any other testimony regarding what the two might have discussed on this occasion. Dominquez offered no testimony regarding this telephone conversation and, in fact, was asked nothing about it when called to testify by Respon- dent. Freire next attempted to contact Ortiz, was unable to reach him, and left two messages on his voice mail. During the period of time when Freire was leaving these messages, Ortiz was at home, taking a shower. His wife informed him that his phone had been ringing. Ortiz saw that Dominquez had called, and called him back. Dominquez told Ortiz that Freire was “furi- ous” and had “found out” what they had done that day. As Ortiz testified, he then called Freire who told him that he knew what he did that day. Ortiz replied that he had just dropped off a piece of paper. Freire told Ortiz he was fired. After Ortiz hung up he saw he had two messages. In these messages Freire stated that he knew Ortiz had gone to the Labor Board and that he was fired. Freire was questioned pursuant to Rule 611(c) by counsel for the General Counsel, and admitted that in one of the messages he left for Ortiz he identified himself, told Ortiz that it was very, very important that he call as soon as possible, stated that he knew Ortiz had gone to the Labor Board that day, and fur- ther told Ortiz that “whatever he did that day at the Labor Board was going to get [him] fired.” Freire subsequently left another message for Ortiz telling him not to bother to come in. Freire was also questioned regarding these phone messages by counsel for Respondent. According to Freire, “[o]n the message I told him that what they were doing on Flatbush Avenue with my trucks, with my time. And that he was fired.” When speak- ing with Ortiz, Freire stated that he repeated “basically the same thing. That they took the trucks away. He is on the last notice. He’s fired.” When asked specifically whether he stated 18 Freire testified that his concern with the longer route stemmed from the increased exposure to the possibility of getting into an acci- dent. Freire further testified that in the past 2 years his trucks had three or four accidents which increased his insurance premiums. the words “I know what you did,” Freire replied, “I don’t re- member if I told him exactly that.” Freire further testified that he did not recall whether Ortiz said anything in response and was so angry at the time that he really did not care what he said. Respondent Meets with the Other Crew Members On the following morning, Dominguez, Rosas, and Vazquez were summoned to a meeting with Freire and shop foreman Suarez. Freire asked the employees why they had gone out of their way with the trucks on company time, with company money. According to both Freire and Suarez, these employees were told that if they did anything like this again, they would be fired. According to the employees present, Freire expressed anger that they had gone out of their way to do personal busi- ness when they were supposed to be working in Manhattan, and employees were told that they should not use working time to do other things. None of these employees, however, testified that they were told that they would be fired should there be any further infractions. On cross-examination, Suarez was asked if he knew what employees did when they “went out of their way,” and stated: “Well I know they went to do something. Their personal business or whatever they went to do. I don’t know what they went to do.” III. ANALYSIS AND CONCLUSIONS The Unlawful Discharge of Alecc Ortiz The complaint alleges that Respondent violated the Act by discharging Ortiz because he sought the assistance of the Board and filed a decertification petition, a contention which the Re- spondent denies. Respondent argues, in essence, that Ortiz was fired for on the job misconduct, while subject to what Respon- dent characterizes as a “last chance” agreement, by appropriat- ing Respondent’s employees, time, and trucks to run a personal errand, in violation of company policy. Respondent argues that the employees had no apparent valid reason for proceeding back to the shop by taking a downtown bridge and that the workers were obviously “in cahoots” with Ortiz to go to the Board on the way back to the shop. Respondent further asserts that the reason Ortiz coworkers were not similarly discharged is twofold: unlike Ortiz, they were not subject to a last chance agreement and, moreover, Respondent determined that due to business concerns it could not afford to lose such a significant component of its work force. Thus, Respondent argues, these employees were warned and threatened with discharge should they engage in similar misconduct in the future. Section 8(a)(3) provides, in pertinent part, that it is “an un- fair labor practice for an employer to discriminate in regard to hire or tenure of employment or any term or condition of em- ployment to encourage or discourage membership in any labor organization.” Section 8(a)(4) of the Act provides that it is an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.” To establish a violation of either Section 8(a)(3) or (4), the Board utilizes the analytical framework set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 395 (1983); see also American Gardens Mgmt.Co., 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014 NLRB 644, 645 (2002) (Wright-Line analysis applies to claims of discriminatory discharge under both Section 8(a)(3) and 8(a)(4)). To meet its burden under Wright Line, the General Counsel must first establish, by a preponderance of the evidence, that the employee engaged in protected concerted activity, the em- ployer was aware of that activity, and that such activity was a substantial or motivating reason for the employer’s action. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999) (citations omitted). Proof of an employer’s motive can be based upon direct evidence or can be inferred from circumstantial evidence, based on the record as a whole. Robert Orr/Sysco Food Ser- vices, 343 NLRB 1183 (2004), enfd. mem. 179 LRRM (BNA) 2954 (6th Cir. 2006); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003); Ronin Shipbuilding, 330 NLRB 464 (2000). The Board has long held that, where adverse action occurs shortly after an employee has engaged in protected activity, an inference of unlawful motive is raised. McClendon Electrical Services, 340 NLRB 613 fn. 6 (2003), citing La Gloria Oil, 337 NLRB 1120 (2002), enfd. mem. 71 Fed Appx. 441 (5th Cir. 2003) (Table). Other factors which may similarly support such an inference include inconsistencies between the proffered reason for the discipline and other actions of the employer, disparate treatment of certain employees compared with other employees with similar work records or offenses, and deviation from past practice. Embassy Vacation Resorts, supra at 848. Once the General Counsel has made out the elements of a prima facie case, the burden of persuasion then shifts to the employer to “demonstrate that the same action would have taken place even in the absence of the protected conduct.” Septix Waste, Inc., 346 NLRB 494, 496 (2006) (quoting Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004); Williamette Industries, 341 NLRB 560, 563 (2004); Wright Line, supra. To meet its Wright Line burden, however, “[a]n employer cannot simply present a legitimate reason for its ac- tion but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996). See also Manno Elec- tric, Inc., 321 NLRB 278, 280 fn. 12 (1996). In the instant case, I find that the General Counsel has met its initial burden under Wright Line of establishing that Ortiz dis- charge was motivated, at least in part, by his protected conduct. The Board’s approach to Section 8(a)(4) of the Act “has been a liberal one in order to fully effectuate the section’s re- medial purpose.” General Services, 229 NLRB 940, 941 (1977), relying on NLRB v. Scrivener, 405 U.S. 117, 124 (1972). Section 8(a)(4), an essential aspect of the statutory scheme, is designed to “safeguard the integrity of the Board’s processes.” Filmation Associates, 227 NLRB 1721 (1977) (it provides a “fundamental guarantee” to those invoking the pro- cedures of the Act; and the duty to preserve Board’s process from abuse is a function of the Board and may not be delegated to the parties or an arbitrator). Mindful of these principles and practical concerns, the Board and courts have found that Section 8(a)(4) is not limited to protecting an employee who has filed charges or given testi- mony. In Precision Fittings, Inc., 141 NLRB 1034, 1035 fn. 3 (1963), the Board specifically held that the protections of that section of the Act would extend to employees who file decerti- fication petitions. In that case, the Board additionally affirmed the trial examiner’s conclusion that the discharge in question violated Section 8(a)(3) of the Act as it, in pertinent part, en- couraged membership in the incumbent union. See also Aristocrat Inns of America, 146 NLRB 1599 (1964) (discharge of employee for filing decertification petition held to violate both Section 8(a)(3) and 8(a)(4) of the Act). Thus, by filing the petition seeking to decertify Local 917, Ortiz was engaged in conduct which is protected by the Act. Moreover, the record establishes that when Respondent re- ceived a copy of this petition, bearing Ortiz signature, it then had knowledge of this protected conduct. This was subse- quently reinforced during Freire’s telephone conversation with Dominquez, where he asserted telling Ortiz “not to do it.”19 In this regard, I do not credit Freire’s testimony that he failed to understand the significance of the decertification petition at the time. The petition was sent to Freire together with an attach- ment explaining the nature of the document and advising that procedures before the Board had been initiated, which included the possibility of a formal hearing. As noted above, Respon- dent’s counsel elicited testimony from Freire regarding his prior experiences with unions and I conclude based upon this testimony, together with his long tenure in the industry, that Freire is not naïve in matters involving collective bargaining. I further find that the record establishes animus toward Ortiz protected conduct. As noted above, Respondent has had a long- standing relationship with Local 917. I credit and give proba- tive weight to Ortiz testimony that Local 917 was amenable to concessions favorable to Respondent,20 and find that these an- ticipated concessions together with a relatively settled collec- tive-bargaining relationship would have caused Freire to have concern regarding any possible decertification effort. In its brief, Respondent argues that Respondent would have been unaware of any potential intervening union at the time the peti- tion was filed and, in this record, there is no evidence regarding when Local 8–A sought to organize employees or moved to intervene in this matter. Nevertheless, as noted above, I have found that Freire is knowledgeable about union-related matters and conclude that he would have been aware of the possibilities inherent in a decertification process. Moreover, the General Counsel has set forth direct proof of Respondent’s animus toward Ortiz protected conduct by adduc- ing Freire’s admission that he told Ortiz that whatever he did 19 As discussed in further detail below, under the circumstances herein, I have concluded that this comment referred to the filing of the petition. 20 Ortiz testimony in this regard was not objected to; nor was the un- derlying fact—that the Union was amenable to reductions in pay and benefits—rebutted by Respondent. Moreover, I credit Ortiz testimony, which does not appear to be disputed by Respondent, that all the em- ployees working in the shop at the time signed the petition in support of decertification. This lends further support to a determination that Local 917 had announced concessions. Clearly, there would have been no reason for such an announcement if they were not contemplated. IBERIA ROAD MARKINGS CORP. 1015 that day at the Labor Board was going to get him fired. As noted above, this statement was made almost immediately after Freire learned that the petition had been filed, and accordingly constitutes strong evidence of Freire’s motivation. McClendon Electrical Services, supra. Thus, I conclude that the General Counsel has established the elements of a prima facie case that Ortiz was discharged for his protected conduct. Accordingly, the burden now shifts to the Respondent to establish, by a preponderance of the evi- dence, that it would have discharged Ortiz notwithstanding any protected conduct in which he may have engaged. As noted above, Respondent argues that Ortiz was fired after having previously been suspended and while subject to a last chance agreement, because he admittedly engaged in further misconduct by appropriating Respondent’s employees, time, and trucks to run a personal errand. As Respondent notes, the Board has long recognized the le- gitimacy of an employer enforcing rules against the misuse of company vehicles. In Stilley Plywood Co., 94 NLRB 932, 980 (1951), cited by Respondent, the Board found that the employer lawfully discharged an employee who used a company vehicle to drive to a union meeting. Similarly in Hertz Corp., 195 NLRB 96 fn. 2 (1972) and Pepsi Cola, 170 NLRB 1252, 1266 (1968), also cited by Respondent, the Board sustained the dis- charges of employees who were fired for using company vehi- cles to attend to personal matters during work hours in violation of company policy. I note however, that all of these cases were decided prior to Wright Line. For this, and other unrelated evi- dentiary reasons, I find such authority to be of limited value in assessing the strength of Respondent’s rebuttal to the elements of General Counsel’s prima facie case. Nevertheless, I find that Respondent’s stated concern with employee use of work time for personal errands, coupled with the alleged unauthorized use of its vehicles, presents a facially legitimate basis for its determination to discharge an employee. However, it is Respondent’s burden not merely to advance a cognizable reason, but rather to persuade, by a preponderance of the evidence, that this was in fact the real reason for the dis- charge under consideration. Here, Respondent has failed to meet that burden. The most obvious evidentiary hurdle for Respondent to meet involves Freire’s admission that in the message he left for Ortiz he specifically stated that what Ortiz had done at the Labor Board was going to get him fired. Under all the circumstances herein, including the “stunningly obvious” timing,21 this consti- tutes powerful evidence that the real reason Ortiz was fired was because of his protected conduct, and not because of a misap- propriation of employer resources. Freire summarily terminated Ortiz without questioning him and I further note that Freire admitted that when finally speaking with Ortiz he was so angry that he could not recall whether Ortiz attempted to offer any excuse for his conduct and further stated that he did not care what Ortiz would have had to say, in any event. I infer that this demonstrable, heightened level of animosity stemmed from the fact that Ortiz had filed the petition. 21 NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970). Freire’s account of his conversation with Dominguez, and specifically his testimony that, he demanded to know, “[w]hy do you take my trucks, my people and my time to the Labor Board on Flatbush Avenue and J Street when you guys were supposed to take the 59th Street Bridge to minimize the prob- lems of having an accident” (which Freire characterized as his “exact words”) simply did not have the ring of truth. Rather, the evidence suggests that Freire’s discussion with Dominguez related specifically to his displeasure regarding Ortiz filing of the petition. As Freire acknowledged, Dominguez responded that he had told Ortiz “not to do it.” It is obvious from the con- text that this comment relates specifically to the filing of the decertification petition (which is the singular thing Ortiz did that the others did not), and Dominguez’s attempt to deflect the responsibility for this undertaking onto Ortiz. Freire offered no other specific testimony regarding anything else Dominguez may have reported to him at this time (except for some vague reference to Ortiz “problems”), or anything else the two of them may have discussed. In this regard, I note that although Dominguez was called as a witness by Respondent, he was not questioned regarding his conversation with Freire. Under these circumstances, where the content of this discussion is cited by Respondent in support of its contentions regarding its motive for firing Ortiz, and where Dominguez, as a current and long- term employee, has a pecuniary interest in testifying favorably for his employer,22 I draw an adverse inference from Respon- dent’s unexplained failure to adduce corroborative testimony from Dominguez on this issue. See International Automated Machines, 285 NLRB 1122, 1123 (1987). I infer, therefore, that had Dominguez been asked about this discussion and had testi- fied truthfully, such testimony would have been adverse to Respondent’s position herein, and conclude that Freire and Dominguez specifically discussed the filing of the petition dur- ing their conversation, and further, that Freire made his dis- pleasure about this known to Dominguez. When questioned by Respondent’s counsel about what he said to Ortiz, Freire testified in essence that he questioned what they were doing on Flatbush Avenue with his trucks and his time, that Ortiz was on his “last notice” and was fired. Freire, however, did not offer this testimony in a convincing manner: he appeared hesitant and uncomfortable.23 By Freire’s own admission, he told Ortiz that what he had done at the Labor Board was going to get him fired. In that brusque statement there was no reference to any final notice or misappropriation of employer resources. Respondent argues that the provisions of the collective- bargaining agreement establish that the unauthorized use of 22 In finding that Dominguez would have the propensity to testify in a fashion favorable to his employer, I note that he is among the most senior of employees, who was not laid off in 2005. I also note that Dominguez and Ortiz have a prior history of work-related animosity and find this to be an additional reason why Dominguez would be favorably predisposed toward his employer and would not attempt to slant his testimony to benefit Ortiz. 23 In this regard I note that Freire testified on several occasions dur- ing the course of the this consolidated hearing and his demeanor when offering this testimony stood in contrast to what it appeared to be on other occasions. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016 company vehicles for personal business is a dischargeable of- fense, and further cites to Freire’s testimony that he is unaware of any other circumstances of such unofficial use. While it is not entirely clear to me that the express terms of the collective- bargaining agreement fully support this contention, I have ac- knowledged that Respondent has the prerogative to insist that its employees use its time and equipment for job-related as- signments and, as the Board has often held, it is not within the purview of the trier of fact to substitute its business judgment for that of the employer. See Super Tire Stores, 236 NLRB 877 fn. 1 (1978). Nevertheless, the unrebutted record evidence es- tablishes that the drivers used the trucks for personal matters: stopping for breakfast en route to work locations, driving to lunch during their work shift, and stopping for a drink on the way back to the shop. Moreover, there is no evidence that such activities were out of the ordinary. Further, there is no evidence that these stops and detours were subject to company scrutiny, or that employees were ever told that they could not use the trucks for such a purpose. Moreover, Dominguez testified, without contradiction, that he was never questioned about his selection of a route; that on other occasions had used downtown bridges to return to the facility and that there was never one particular route that the drivers were supposed to follow.24 Additionally, there is the fact that only Ortiz, the signatory to the petition, was fired while the others were, at most, given a verbal warning. Respondent argues that this discrepancy in the level of discipline meted out stems from the fact that only Ortiz was subject to a “last chance” agreement and further that, due to business concerns, it could not afford to discharge an entire crew of employees. In this regard, Respondent places signifi- cant reliance upon the fact that employees were severely repri- manded for their conduct on the following day and threatened with discharge if they ever appropriated Respondent’s time and trucks for personal errands again.25 24 Furthermore, there is no evidence that this has changed since the events described herein. 25 In an apparent attempt to rationalize the disparate treatment of Ortiz as compared with his coworkers, Respondent contends that in “hindsight” it is obvious that the employees were “in cahoots” to go to the Board as there was no other valid reason for taking a downtown bridge on their way back to the shop, but further argues that Freire was not cognizant of their complicity at the time. This argument is based upon conjecture as there is no probative evidence that the employees, as a group, planned to detour to downtown Brooklyn to enable Ortiz to file the petition. Further, such an argument fails to lend support to Respondent’s position herein. To the contrary, it highlights that there are significant factual deficits in Respondent’s proffered defense. In particular, Freire offered scant testimony as to what Dominguez may have told him in their telephone discussion and, as noted above, none was adduced from Dominguez. In this regard, the fact that Freire called Dominguez in the first instance is indicative of the fact that he consid- ered him, as foreman, responsible for the actions of the crew and the route that was taken. Moreover, contrary to Respondent’s suggestion, there is no evidentiary basis for me to conclude that Freire somehow deemed or had any basis to consider that Ortiz was accountable for the route taken back to the shop on that occasion. In light of the fact that Respondent bears the burden of proof as to these matters, I find such evidentiary deficits to be significant. As an initial matter, I do not credit the testimony, offered by Freire and Suarez, that employees were threatened with dis- charge during this meeting. As noted above, Suarez offered an exaggerated account of Ortiz involvement and misconduct in the 2003 incident which led to his suspension, one which did not comport with the contemporaneous account he had pro- vided to Freire. I further fail to credit Suarez’s improbable as- sertion that he did not know the nature of the “personal busi- ness” that employees had engaged in and for which they were being reprimanded. I find, therefore that Suarez, a co-owner of the company and long term business associate of Freire’s, has a propensity to offer false testimony if he believes it will support Respondent’s position herein. Moreover, not one of the three employees who testified regarding this meeting reported a threat of discharge. I find that this is precisely the sort of warn- ing that employees would find of significance and would tend to recall. Again, I find such a lack of corroboration to be sig- nificant. Based upon the foregoing, I find that Respondent’s assertion, as stated in its brief, that the three employees were “vehemently admonished” and “explicitly warned” that they would be fired if they engaged in similar misconduct in the future is not supported by the evidence. Thus, I find that the other employees who, like Ortiz, took Respondent’s time and trucks on a detour allegedly for the purpose of running a personal errand were given scant disci- pline. Unlike Ortiz they were not discharged, they were not suspended, they were not issued a “last-chance” letter, no warn- ing was placed in their file, and they were not threatened with discharge. This lack of meaningful employee discipline stands in sharp contrast to Ortiz termination. The disparate severity of his punishment raises a strong inference of pretext. Respondent’s counters this with reliance on Ortiz so-called “last chance” letter. I find, however, that Respondent has failed to sustain its burden of establishing that this would have pre- cipitated Ortiz discharge had he not engaged in protected con- duct, but simply had taken a longer route back to the shop and stopped for a drink with his coworkers in downtown Brooklyn, as did they. Nor does it, in my mind, sufficiently explain the variance in the discipline meted out to employees. In reaching this conclusion, I note that Ortiz admitted that he understood that by agreeing to the terms of the letter, he was acknowledging that he would be discharged if he engaged in subsequent misconduct.26 However, this letter had been issued 3 years previously, without any intervening instances of wrongdoing. There are other factors which militate against a determination that this letter would have served as the basis for Ortiz discharge absent his protected conduct. In particular, I note that Freire testified that he rarely discharged employees, and Respondent has presented no evidence regarding any other instances of employee discipline (other than the earlier incident involving Ortiz and Dominguez).27 Further supporting this 26 General Counsel argues that the terms of the letter are not as broad in scope as Respondent suggests inasmuch as there is specific reference to termination only for starting further fights or giving “any of his superiors problems.” 27 Cf. Met West Agribusiness, Inc., 334 NLRB 84, 89 (2001), cited by Respondent, where the Board found that the employer satisfied its rebuttal burden based upon a final warning issued to an employee. In IBERIA ROAD MARKINGS CORP. 1017 determination is the relatively light punishment meted out to the others coupled with Respondent’s general lack of supervi- sion of employees regarding routes taken or stops made during the work day. Thus, while Respondent has presented what appears on its face to be a legitimate basis for its determination to discharge Ortiz, there is strong, direct, and unrebutted evidence of unlaw- ful motivation. This is coupled with a significant lack of cor- roboration with regard to two important aspects of Respon- dent’s proffered defense, in particular regarding what Freire discussed with Dominguez in their initial conversation after the petition was filed and with respect to the manner of discipline issued to the other employees. Given these considerations, and the logical inferences to be drawn from the other facts and cir- cumstances of this case, as discussed above, I conclude that Respondent has failed to sustain its burden of establishing that it would have discharged Ortiz regardless of his protected con- duct. Accordingly, I find that Respondent has violated Section 8(a)(1) (3) and (4) as alleged in the complaint. Accordingly, I recommend that the challenge to Ortiz ballot be overruled. See Regency Service Carts, 325 NLRB 617, 627 (1998). IV. THE OTHER CHALLENGED BALLOTS As noted above, Local 8A and the Petitioner challenged the ballot Miguel Freire (Miguel) and Petitioner challenged the ballot of Danny Travers (Travers).28 Travers’ ballot was chal- lenged on the basis that he voluntarily quit his employment in December 2005 to accept another job. The stated basis for the challenge to Miguel’s ballot was that, as the son of the Presi- dent and co-owner of the Employer, he is aligned with man- agement.29 At the hearing Local 8–A raised the following additional is- sues: (1) that the Employer is not in the construction industry and therefore the Regional Director applied the incorrect voter eligibility standard and (2) that a consideration of whether the challenge to Travers’ ballot should be sustained properly in- volves an inquiry into whether Travers abandoned interest in continued employment by obtaining a job elsewhere while on layoff and whether he manifested an intent not to return to work for the Employer. In its posthearing brief, Local 8–A raises additional arguments regarding the challenge to Miguel’s ballot alleging that the challenge should be sustained because (1) between the time that he was last employed and the date of the election, Miguel had started his own sign hanging business, in competition with the Employer and (2) Miguel did not work at any time during the 12 month period immediately preceding the voter eligibility date, and is therefore ineligible to vote under the Daniel Construction formula applied by the Regional Di- rector. that instance, however, the employee in question had two infractions within months of receiving the final warning. Moreover, the employer had a history of treating other employees in a similar fashion. 28 Local 8–A contends that Travers is an ineligible voter herein, as well. 29 It was additionally initially alleged that both Travers and Miguel performed bargaining unit work only intermittently. The 2005–2006 Lay Off and Recall As noted above, the Employer’s employees are laid off dur- ing the winter season. In 2005, this took place as of December 7, and was announced by the posting of a notice to employees listing both those few employees who would remain employed and those being laid off, in order of seniority. This notice was prepared by Office Manager Maria Lago. Among those workers laid off on this occasion were Miguel and Travers. At the time, Miguel had the least seniority of all workers.30 That following spring, Freire determined that, due to a downturn in business, he required fewer employees, and recalled only 8 of 17 em- ployees listed on the layoff list. As with layoffs, recalls are done on the basis of seniority and neither Travers nor Miguel were recalled that spring, and were not recalled at any time prior to the election. At that time, based upon his position on the seniority list, Travers was the next employee subject to recall. Local 8-A’s Challenge to the Voter Eligibility Formula At the hearing, Local 8–A sought to adduce evidence relat- ing to additional Employer business operations including sign posting and sign painting. In response to an objection from the Employer,31 I inquired as to the relevance of such testimony, at which time counsel for Local 8–A made the following state- ment: It is our position that Daniel Construction is directed to con- struction. And what we believe is that this is a typical 9(c) op- eration, not a shape up or discrete jobs where crews are cre- ated and then let go for particular jobs. What we have here is a typical bargaining unit. A non-construction unit. In its brief Local 8–A argues that even without being given the opportunity to develop the record as to any additional types of work performed by the Employer, it is clear from the testi- mony that the Employer has a core group of employees that come back year after year, and that there is no evidence of in- termittent, as opposed to seasonal, employment or that a sub- stantial number of the employees involved work for several different employer’s during the year.32 Counsel for Local 8-A acknowledged, however, that no re- quest for review of the Acting Regional Director’s Decision and Direction of Election had been filed. Nor were there objec- tions to the election. Accordingly, I ruled that I would not allow 30 As discussed in further detail below, Miguel had the least seniority despite an initial 1999 hire date because he worked primarily during summer vacations from college and according to the provisions of the collective-bargaining agreement was ineligible to accrue seniority for those years. 31 The objection was sustained. 32 Local 8–A apparently relies upon this argument only insofar as it advances its position regarding the challenges under consideration herein. As noted above, the record shows that, in addition to the three employees who had remained employed during the winter months, eight unit employees were recalled in 2006. Fourteen voters whose ballots were not challenged voted in the election. Accordingly, it would appear that several voters cast their ballots while on layoff status, pur- suant to the Daniel Construction formula. There is no contention by Local 8-A that any of the other voters who may have voted pursuant to this standard should be deemed ineligible to vote herein. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018 relitigation of the voter eligibility formula in the instant pro- ceeding, and hereby affirm that ruling. See Sitka Sound Sea- foods, 325 NLRB 685 (1998), where the Board affirmed the Regional Director’s overruling of objections to an election which were, in essence, an attempt to relitigate the eligibility formula used therein, where the Board had previously denied review as to that issue.33 Miguel Freire Miguel, who is Freire’s son, also has a familial relationship with two other owners of the Employer. The Excelsior list submitted by the Employer indicates that during the time frame of the election, Miguel and Freire lived on the same street, but not at the same street address.34 Miguel attended college be- tween 1999 and 2002 and worked only summers during this time. The record establishes, however, that he was not the only employee to have done so during this period. Miguel subse- quently worked for the Employer on a seasonal basis, and it appears from the record that this was during 2004–2005. Mi- guel accrued no seniority during the years that he worked solely during his summer vacation periods and consequently, had the least seniority of all of the employees. While employed, Mi- guel’s terms and conditions of employment were governed by the collective-bargaining agreement with Local 917, as well as other shop-wide practices. Thus, he worked a regular shift, the same hours as other employees, earned the contractual wage rate, and enjoyed contractual benefits. There is no evidence that he enjoyed special privileges such as reduced work hours or longer break or meal periods. The record additionally estab- lishes that Miguel never worked as a foreman, had no supervi- sory or managerial authority, and was a member of Local 917. Ortiz alleged that Miguel was afforded special privileges such as: “[g]oing to Spain. When they need him, he comes whatever days he needs, like in the summer. When he used to go to school and when they need people, he calls his son.” As noted above, however, there is undisputed record evidence that other laborers employed by the Employer have worked only during vacation periods while attending school. Moreover, Freire testified that notwithstanding the requirement in the col- lective-bargaining agreement that vacations be taken during winter months, he would allow employees to take vacation during the summer as long as no other employee was taking off at the same time.35 In mid-October 2005, Miguel was granted a leave of absence to assist an injured older brother in running his business. There is no evidence that any other employee has been granted such a privilege; however the record does estab- 33 I note that in Steiny & Co., supra at 1328 fn. 16, the Board, citing Dick Kelchner Excavating Co., 236 NLRB 1414, 1416 fn. 10 (1978) stated that one exception to the application of the Daniel Construction formula in the construction industry exists where the employer clearly operates on a seasonal basis. Nevertheless, the time for Local 8-A to have raised any such or related argument was during the underlying representation case hearing or in a request for review of the Acting Regional Director’s Decision and Direction of Election. 34 I take administrative notice of the Regional Director’s findings in this regard. 35 Freire identified Ortiz, Dominguez, and Vazquez as being among those employees who took vacations during the summer months, and Ortiz confirmed that this was the case as to him. lish that other employees have taken sick leave in order to care for relatives. Miguel was subsequently laid off in December 2005, and has not been recalled since that time. In the summer of 2006, Miguel, together with a partner, started his own busi- ness installing street signs. It is well settled that a “party seeking to exclude an individ- ual from voting has the burden of establishing that the individ- ual is, in fact, ineligible to vote.” Regency Service Carts, Inc., 325 NLRB 617, 627 (1998) (quoting Golden Fan Inn, 281 NLRB 226, 230 fn. 24 (1986)). The Board “has long hesitated to include the relatives of management in bargaining units because their interests are sufficiently distinguished from those of other employees.” Palagonia Bakery, 339 NLRB 515, 536 (2003); R&D Trucking, Inc., 327 NLRB 531, 532 (1999); T.K. Harvin & Sons, 316 NLRB 510, 533 (1995). “The greater the family involvement in the ownership and management of the company, the more likely the employee relative will be viewed as aligned with management and hence excluded.” NLRB v. Acton Automotive, 469 U.S. 490, 494–495 (1985); Palagonia Bakery, supra at 536. The Board however, does not exclude an employee simply because he or she is related to a member of management. International Metal Products Co., 107 NLRB 65 (1953). Rather, the Board considers a variety of factors in deciding whether an employee’s familial ties are sufficient to align his interests with management and thus warrant his exclusion from the bargaining unit. In this regard, the Board utilizes an “ex- panded community of interest test” to determine whether rela- tives of owners of closely-held corporations should be excluded from the unit, weighing such factors as how high a percentage of stock the parent or spouse owns, how many of the share- holders are related to one another, whether the shareholder is actively engaged in management or holds a supervisory posi- tion, how many relatives are employed as compared with the total number of employees, and whether the relative lives in the same household or is partially dependent on the shareholder. Futuramik Industries, Inc., 279 NLRB 185 (1986) (citing NLRB v. Action Automotive, supra). An employee relative may be excluded from the unit even though he or she enjoys no special job related privileges, if other criteria establish that his interests are aligned with management, NLRB v. Action Automotive, supra at 495; see also Palagonia Bakery, supra at 536. In the instant case, Miguel is a relative of management; thus, it need not be shown that he enjoys job-related privileges in order to find his interests more closely aligned with management and, therefore, that he does not share a community of interest with other bargaining unit employees. Id. (and cases cited therein). Although it is not essential that job related privileges be shown, it is however, an important factor considered by the Board in assessing whether the employee in question shares a sufficient community of interest with other employees. In Blue Star Ready Mix, 305 NLRB 429, 430–431 (1991), the Board overruled the challenge to the ballot of the grandson of one owner (and nephew of another), finding that he shared a com- munity of interest with other employees. In that instance, the employee in question was a college student who lived with his IBERIA ROAD MARKINGS CORP. 1019 owner-grandfather.36 Although he had started work at a slightly higher wage than other employees, he was otherwise subject to the same time, attendance, and disciplinary procedures and received the same benefits. In the absence of any significant job related privileges, the Board found this relative of management shared a community of interest with other employees. Cf. Luce & Sons, Inc., 313 NLRB 1355, 1356 (1994); R&D Trucking Co., supra (relatives of management who enjoyed special job- related privileges excluded from unit.) In the instant case, Miguel is the son of one, and related to two other owners of the Employer who collectively own 60 percent of the stock of the corporation. Moreover, Freire is apparently the highest ranking manager of the Employer. Nev- ertheless, there is insufficient probative evidence to establish that Miguel received any job-related privileges as a result of his relationship to Freire, or any of the other owners to whom he is related. Although Miguel was able to work during his summer vacations from college, this option was also available to other employees. Similarly, although Miguel was apparently allowed to take vacation time during his work season, Freire’s testi- mony, which was corroborated by the Petitioner, was that other employees could do so as well. Miguel was subject to the terms and conditions of employment set forth in the Local 917 collec- tive-bargaining agreement, including the contractual seniority rules and at no time occupied a supervisory or managerial posi- tion. Although Miguel was apparently allowed to take a leave of absence to assist another family member who was recuperat- ing from an injury, there is record evidence that other employ- ees are allowed to take sick leave to care for themselves or other family members. Under all the circumstances, therefore, I do not view this as a job related privilege that would disqualify Miguel from eligibility in light of the other factors which would militate toward his placement in the unit. Blue Star Ready Mix, supra. I further note that although Freire testified that the two currently share a home, the Excelsior list submitted by the Em- ployer showed that Miguel and Freire did not live together at the time of the election, although they resided on the same street. Nor is there evidence that Miguel was a dependent of Freire’s at any relevant time. Cf. Futuramik Industries, supra at 186. In its brief, Local 8–A apparently contends that the Regional Director erred in finding that Miguel met the Daniel Construc- tion eligibility formula based upon December 2005 payroll records. Relying upon these and prior records, the Regional Director found that Miguel was employed for at least 45 days during the 24 months immediately preceding the October 19, 2006 election eligibility date, and had “some employment” during the 12 months preceding that date, consisting of 40 hours during the payroll period ending December 10, 2005. As Local 8–A notes in its brief, the hours in question were listed under a different classification from that of other employees and at the hearing Office Manager Lago testified that this pay- 36 The employee in question additionally assisted in caring for his grandparents. The Board found that this assistance was voluntary and not related to the performance of his job duties. ment was for accrued vacation time. The Employer’s payroll records otherwise show that Miguel last worked during the payroll period ending October 15, 2005 (with a pay date of October 21), and that during this period he worked 24 hours on unspecified days. Thus, Local 8–A argues Miguel was not em- ployed during the 12-month period immediately preceding the voter eligibility date and therefore he is an ineligible voter herein. The issue of whether Miguel’s work history satisfies the Daniel Construction voter eligibility formula, raised for the first time in Local 8–A’s posthearing brief, is not arguably en- compassed by those issues set for hearing by the Regional Di- rector. Moreover, although Local 8–A may have a valid claim that it would not have had access to the underlying evidence so as to enable it to advance such an argument as an initial matter, both the payroll records and Lago’s testimony became part of the record during the course of the hearing. This newly-asserted basis for the challenge to Miguel’s ballot was not raised by Local 8–A at any time where the other parties could be pro- vided with notice or have an opportunity to respond or to pre- sent evidence in response to such assertions and thus, was not litigated herein. Local 8–A has provided no legal authority to persuade me that it would be proper to consider this issue under such circumstances. I conclude therefore, that even if I were to assume that the evidence would support Local 8–A’s conten- tions in this regard,37 it is not appropriate for me to consider this newly asserted and clearly not litigated basis for the chal- lenge to Miguel’s ballot. See, e.g., J.K. Pulley Co., 338 NLRB 1152, 1153 (2003) (citing Precision Products Group, 319 NLRB 640 (1995).38 Based upon the foregoing, I conclude that the Petitioner and Local 8–A have failed to meet their respective burdens of es- tablishing that Miguel is not an eligible voter herein. Accord- ingly, I recommend that the challenge to his ballot be over- ruled. Danny Travers Travers had been employed as a laborer with the Employer since 2001. Freire, Lago, and Ortiz all offered testimony that at the time of his layoff in December 2005, Travers had not quit his employment. He applied for unemployment benefits later that winter, and sought and obtained employment as a chef. Ortiz testified that, in April 2006, he heard “rumors” that Travers had quit. A few months later, during the summer, Ortiz and his fellow crew members had occasion to meet Ortiz for 37 The payroll records and other evidence relied upon by Local 8–A, establish that there is some ambiguity as to whether Miguel was em- ployed or would be deemed to have been employed during the 12- month period immediately preceding the election eligibility date. How- ever, as noted above, as this issue was not litigated it remains an open question. In any event, Local 8–A, as the party asserting the basis for the challenge, would have the burden of proof in this matter. 38 Local 8–A additionally raises the argument that Miguel is ineligi- ble to vote because, at the time of the election, he was the part-owner of a sign-hanging company. Again, this contention, based upon evidence adduced at the hearing, is plainly beyond the scope of those issues set for hearing and litigated herein. In any event, the mere fact that Miguel may have been the co-owner of another business does not render him an ineligible voter. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020 lunch. According to Ortiz, at this time Travers stated that he was going to culinary school and enjoyed being a chef. Accord- ing to Freire, at no time did Travers notify the Employer that he did not intend to return to work. Travers did not testify herein, and there is no further substantive testimony regarding his status at any relevant time. Petitioner challenged Travers’ ballot on the grounds that he had voluntarily quit his employment prior to the election. At the hearing in this matter, Local 8–A raised a secondary argument to the effect that Travers evinced an intention not to return to work for the Employer, and that this renders him an ineligible voter herein. In its brief, Local 8–A raises the further argument that the challenge to Travers’ ballot should be sustained be- cause he was not called back to work in December 2006 be- cause of seasonal, weather-related issued but because of a downturn in business that necessitated fewer employees. Local 8-A argues that where there is a layoff caused by a decline in the amount of available work, the employer does not have an intent to recall the employee and there is no reasonable expec- tation of working in the same workplace in the future. The record evidence establishes that Travers was laid off for the winter season in December 2005, along with most of Re- spondent’s other employees. Both Freire and Lago testified that Travers never informed them that he had quit his employment. Ortiz stated on cross-examination that Travers never said that he was quitting in December 2005. Based upon the record herein, there is insufficient probative evidence that Travers voluntarily quit his employment prior to the last job for which he was employed, Daniel Construction, supra; Steiny & Co., supra. I recommend, therefore, that the challenge to his ballot be overruled.39 CONCLUSIONS OF LAW 1. The Respondent/Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 917 and Local 8–A are each labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging Alecc Ortiz because he filed a decertifica- tion petition with the Board, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. 39 As noted above, in its brief Local 8-A further argues that the chal- lenge to Travers’ ballot be sustained because he did not have a reason- able expectation of recall due to economic exigencies. This argument is subsumed by the Regional Director’s application of the Daniel Con- struction formula, which determines voter eligibility. Moreover, such an argument was not previously alleged by either the Petitioner or Local 8–A as a basis for a challenge to Travers’ ballot, nor is it argua- bly encompassed by the stated basis for challenge and was not litigated herein. Accordingly, I find that this issue is not properly before me. J.K. Pulley Co., supra. The Respondent having discriminatorily discharged Ortiz, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended40 ORDER The Respondent, Iberia Road Markings Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employ- ees to encourage or discourage membership in any labor or- ganization or for soliciting or obtaining signatures or filing with the National Labor Relations Board any petition for decertifica- tion of a labor organization. (b) In any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act (a) Within 14 days from the date of the Board’s Order, offer Alecc Ortiz full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privilege previ- ously enjoyed. (b) Make Alecc Ortiz whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of this deci- sion. (c) Within 14 days from the date of the Board’s Order, re- move from its files any reference to the unlawful discharge and within 3 days thereafter notify Ortiz in writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in Brooklyn, New York copies of the attached notice marked “Appendix.”41 Copies of the notice, on forms provided 40 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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. 41 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- IBERIA ROAD MARKINGS CORP. 1021 by the Regional Director for Region 29 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since October 2, 2006. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER RECOMMENDED that the challenges to the bal- lots of Alecc Ortiz, Miguel Freire, and Danny Travers be over- ruled and that they be opened and counted. 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 No- tice. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT discharge or otherwise discriminate against employees to encourage or discourage membership in any labor organization or for soliciting or obtaining signatures or filing with the National Labor Relations Board any petition for decer- tification of a labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed to them by Section 7 of the Act. WE WILL Within 14 days from the date of the Board’s Order, offer Alecc Ortiz full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- lege previously enjoyed. WE WILL make Alecc Ortiz whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge and WE WILL within 3 days thereafter notify Ortiz in writing that this has been done and that the discharge will not be used against him in any way. IBERIA ROAD MARKINGS CORP.