Jason Lopez' Planet Earth Landscape, Inc.

JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 358 NLRB No. 46 383 Jason Lopez’ Planet Earth Landscape, Inc. and La- borers Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America. Cases 31–CA–029817 and 31– CA–030010 May 22, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND FLYNN On December 5, 2011, Administrative Law Judge Ger- ald M. Etchingham issued the attached decision. The Acting General Counsel filed exceptions and a support- ing brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, and conclusions,1 to adopt the recommended Order as modified and set forth in full below,2 and to modify the remedy. AMENDED REMEDY Having adopted the judge’s finding that the Respond- ent violated Section 8(a)(5) and (1) by laying off em- ployees Ruben Olguin Leyva (Olguin) and Omar Mota Garcia (Mota) without giving the Union an opportunity to bargain, we amend the remedy to require that the Re- spondent give the Union notice and an opportunity to bargain before implementing any layoffs. See Consoli- dated Printers, Inc., 305 NLRB 1061, 1068 (1992). In addition, the judge provided that backpay be com- puted in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). Because the Respondent’s unfair labor practices resulted in cessation of employment, those violations are appro- priately remedied under the quarterly Woolworth back- pay formula. See Raven Government Services, 336 NLRB 991, 992 (2001). Thus, backpay shall be comput- ed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We do not adopt the judge’s recommendation to re- quire the Respondent to provide the Union a list of the 1 No exceptions were filed regarding the violations found. The Act- ing General Counsel’s exceptions involve only the remedy, Order, and notice. 2 We shall modify the judge’s recommended Order and notice to conform to the violations found and the Board’s standard remedial language. names and addresses of its employees. This remedy is typically ordered when an employer’s misconduct has necessitated a second election or has prevented organiz- ing for an initial election, so that the petitioner must have an opportunity to contact employees away from the workplace. See, e.g., Federated Logistics & Operations, 340 NLRB 255, 256–257 (2003), review denied 400 F.3d 920 (D.C. Cir. 2005); Excel Case Ready, 334 NLRB 4, 5 (2001). Here, the Union is the certified exclusive collec- tive-bargaining representative of the unit employees. As such, it may obtain this information from the Respond- ent, upon request, in order to identify and contact the employees it represents. However, in agreement with the judge, we find that a reading of the notice by Respondent’s president and owner, Jason Lopez, or by a Board agent in Lopez’ pres- ence, is appropriate here. The Respondent’s violations of the Act are sufficiently serious and widespread that the reading of the notice is necessary to enable employees to exercise their Section 7 rights free of coercion. See HTH Corp., 356 NLRB 1397, 1411 (2011); Carwash on Sun- set, 355 NLRB 1259, 1263 (2010); Homer D. Bronson Co., 349 NLRB 512, 515–516 (2007), enfd. mem. 273 Fed. Appx. 32 (2d Cir. 2008); Concrete Form Walls, Inc., 346 NLRB 831, 838–840 (2006). As the judge found, and we agree, the Respondent laid off Olguin be- cause of his activities as the leader of the organizing campaign and a witness for the Union in the underlying representation proceeding, and laid off Mota because of his active role in the organizing drive. In a unit of only 15 employees, the Respondent’s layoff of the 2 primary union supporters and organizers on the heels of the elec- tion would reasonably chill the exercise of Section 7 rights by the entire unit. In addition, the Respondent committed numerous other serious violations, including threatening to close the business and reopen it under a different name if the Union prevailed in the election, promising Olguin more lucrative jobs if he abandoned his support for the Union, and providing money to Ol- guin and his coworkers to discourage them from engag- ing in organizational activities. Because Lopez personal- ly committed these unfair labor practices and thus creat- ed the atmosphere of intimidation, this remedy would assure employees that he acknowledges their rights and will not interfere with the exercise of those rights in the future. Contrary to our dissenting colleague, we find that the Respondent’s violations had a widespread impact war- ranting the notice reading remedy, even though most of them were directed at employee Olguin. In Concrete Form Walls, 346 NLRB at 838, the Board ordered spe- cial remedies, including the reading of the notice, based DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384 on the employer’s unlawful discharge of 4 employees who voted in an election in a 25-person unit. In that case, the Board found that the discharges would have a “deep and lasting impact” on each unit employee. We disagree with our colleague’s view that Concrete Form Walls is distinguishable. After the swift postelection discharges of Olguin and Mota, the unit employees here would reasonably view themselves as highly vulnerable to retaliation based on their selection of the Union, like the employees in that case would based on participation in a Board election. In both cases, the discharges con- veyed a clear message to employees not to participate in the selection of a union.3 Moreover, in Concrete Form Walls, the Board found one additional 8(a)(1) violation, a promise of a wage increase to employees who provided documentation establishing their eligibility for employ- ment under Federal immigration law, and an 8(a)(5) re- fusal-to-bargain violation. Id. Here, in view of the Re- spondent’s numerous independent 8(a)(1) violations, as well as the layoffs in violation of Section 8(a)(3), (4), and (5), a notice reading remedy is all the more warrant- ed.4 3 Our colleague argues that Concrete Form Walls is distinguishable from the instant case due to the employer's reliance on Federal immi- gration law as the pretext for discharging the four employees there. Neither the judge nor the Board in that case, however, suggested that the employer’s reference to immigration law was critical in granting the notice reading remedy. The Board there also granted a broad cease- and-desist order and a Gissel bargaining order, which is reserved for violations that seriously undermine the possibility of a fair second election. With specific regard to the appropriateness of the Gissel bargaining order, the Board considered the employer’s retaliation against the four employees by investigating their immigration status and discharging them because they voted in the election. In this case, the Union was certified, and we need not consider this extraordinary remedy. 4 Member Flynn would not order a notice reading remedy. The Re- spondent’s violations, although serious, were not widespread. Indeed, most of them were directed at a single employee, Olguin. In finding that the Respondent’s violations warrant notice reading, Member Flynn’s colleagues rely on their presumptive effect on the rest of the unit. In most of the cases his colleagues cite, however, the Board or- dered notice reading where employers’ widespread violations actually affected numerous employees. See Carwash on Sunset, supra (ordering notice reading where multiple agents of the respondent, on multiple dates, subjected employees to coercive threats, promises, and interroga- tions, and where the respondent unlawfully discharged or caused the discharge of seven employees); HTH Corp., supra (ordering notice reading where the respondents committed “numerous and wide-ranging unfair labor practices,” including conducting an unlawful poll of em- ployees’ union activities and sympathies, threatening an assembled group of roughly 25 employees with job loss, unlawfully withdrawing recognition from the union and making numerous unilateral changes, and unlawfully discharging 7 employees); Homer D. Bronson, supra (ordering notice reading where the respondent’s managers, in speeches to the assembled work force, threatened that unionization would result in plant closure). Member Flynn would adhere to the standard the cited ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Jason Lopez’ Planet Earth Landscape, Inc., Nipomo, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their un- ion membership, sympathies, and/or activities. (b) Threatening to close its business because its em- ployees engaged in activities on behalf of the Laborers Pacific Southwest Regional Organizing Coalition, La- borers’ International Union of North America (the Un- ion), or other protected concerted activities. (c) Promising employees benefits, including more lu- crative prevailing wage job assignments, if they abandon their support for the Union. (d) Giving employees money in order to discourage them from supporting the Union. (e) Laying off its unit employees without prior notice to the Union and without affording the Union an oppor- tunity to bargain with respect to the layoffs and their ef- fects. (f) Laying off employees because they support the Un- ion or engage in protected concerted activities. (g) Laying off employees for testifying at a Board hearing. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Before laying off unit employees, notify and, on request, bargain with the Union as the exclusive bargain- ing representative of employees in the following bargain- ing unit: Included: All full-time and regular part-time landscap- ing employees employed by the Employer [Respond- ent] in all counties within the State of California. precedent exemplifies and reserve the special remedy of notice reading for cases where violations are both serious and widespread. Concrete Form Walls, supra, in which the violations were less wide- spread than in the just cited cases, is the exception that proves the rule. There, the respondent justified its unlawful discharge of four Hispanic employees as compelled by Federal immigration law, and 85 percent of the remaining work force stood “in virtually the identical situation as the four discharged employees.” 346 NLRB at 838–839. Under those circumstances, the Board necessarily inferred a widespread impact despite less than widespread violations. This case does not present such uniquely compelling circumstances. JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 385 Excluded: Confidential employees, secretaries, and su- pervisors and guards as defined by the Act, as amend- ed. (b) Within 14 days from the date of this Order, offer employees Olguin and Mota full reinstatement to their former jobs, or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. (c) Make employees Olguin and Mota whole for any loss of earnings and other benefits suffered as a result of the Respondent’s unilateral changes and unlawful dis- crimination against them, in the manner set forth in the remedy section of the judge’s decision as amended here- in. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful actions taken against Olguin and Mota and, within 3 days thereafter, notify them in writing that this has been done and that the unlawful layoffs will not be used against them in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days from the date of this Order, post at its Nipomo, California facility copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily 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, notices shall be dis- tributed 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 5 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- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” employees by such means.6 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 em- ployees and former employees employed by the Re- spondent at any time since June 18, 2010. (g) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. (h) Within 14 days of the date of this Order, hold a meeting or meetings, scheduled to ensure the widest pos- sible attendance, at which the attached notice marked “Appendix” will be publicly read by the responsible cor- porate executive, Jason Lopez, president, in both English and Spanish, in the presence of a Board agent, or at Re- spondent’s option, by a Board agent in Lopez’ presence. 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 vio- lated 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 bene- fit and protection Choose not to engage in any of these protected activities WE WILL NOT coercively question you about your un- ion membership, sympathies, and/or activities. WE WILL NOT threaten to close our business because you engage in activities on behalf of the Laborers Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America (the Union), or other protected concerted activities. WE WILL NOT promise you benefits, including more lucrative prevailing-wage job assignments, if you aban- don your support for the Union. WE WILL NOT give you money in order to discourage you from supporting the Union. 6 J. Picini Flooring, 356 NLRB 11 (2010). Member Flynn did not participate in J. Picini Flooring but recognizes it as extant precedent, which he applies for institutional reasons. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386 WE WILL NOT lay you off without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT lay you off for supporting the Union or engaging in protected concerted activities. WE WILL NOT lay you off for testifying at a Board hearing. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, before implementing any changes in your terms and conditions of employment by laying you off, notify and, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the following bargaining unit: Included: All full-time and regular part-time landscap- ing employees employed by the Employer [Respond- ent] in all counties within the State of California. Excluded: Confidential employees, secretaries, and su- pervisors and guards as defined by the Act, as amend- ed. WE WILL, within 14 days from the date of the Board’s Order, offer Ruben Olguin Leyva and Omar Mota Garcia full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Ruben Olguin Leyva and Omar Mota Garcia whole for any loss of earnings and other benefits suffered as a result of our unilateral changes and discrim- ination against them, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful layoffs of Olguin and Mota, and WE WILL, within 3 days thereafter, inform them in writing that this has been done and that the layoffs will not be used against them in any way. JASON LOPEZ’ PLANET EARTH LANDSCAPE, INC. Juan Carlos Ochoa Diaz, Esq., for the General Counsel. Erik Benham, for the Respondent. Perfecto Ramirez, for the Charging Party. DECISION STATEMENT OF THE CASE GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried in Santa Maria, California, on March 29, April 18–21, and September 6, 2011. (Tr.1 602–610, 630–659.) The 1 For ease of reference, testimonial evidence cited herein will be re- ferred to as “Tr.” (Transcript) followed by the page number(s); docu- mentary evidence is referred to either as “GC Exh.” for a General Laborers Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America (the Charging Party or the Union) filed the initial charge in Case 31–CA– 029817 on June 29, 2010,2 which was amended subsequently on August 20, and a charge in Case 31–CA–030010 on October 29, which was later amended on December 30, and the Region- al Director for Region 31 issued the consolidated complaint (the complaint) on February 28, 2011. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act (the Act) by laying off employees Ruben Olguin Leyva (Olguin) and Omar Mota Garcia (Mota) without notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to the layoffs and their effects. The complaint also alleges that by participating in the acts referenced above, the Respondent also violated Section 8(a)(3) and (1) when it laid off employees Olguin and Mota because of their Union or protected concerted activities. The complaint further alleges that Respondent violated Sec- tion 8(a)(4) and (1) by laying off employee Olguin because he testified at a representation hearing before the Board in Case 31–RC–008811. Finally, the complaint alleges that the Re- spondent violated Section 8(a)(1) by interrogating employee Olguin, promising him prevailing wage jobs, threatening to close its business, and giving its prounion employees money. As the trial went forward to conclusion, counsel for the Act- ing General Counsel sought and I granted leave to further amend the complaint to better conform to the evidence present- ed. (Tr. 30–31, 33–36, 653–657; GC Exhs. 2, 21, and 23.) Ap- plying the Board’s standard set forth in Folsom Ready Mix, Inc., 338 NLRB 1172 fn. 1 (2003), I granted this request, as the proposed amendments did not materially prejudice the Re- spondent; the amendments involved new factual matters but included much of the same evidence put forth at trial as was required to litigate the matters arising from the original com- plaint and as such I find that Respondent had adequate time to properly defend the new factual allegations.3 Unless otherwise explained, findings of fact herein are based on party admissions, stipulations, and uncontroverted testimony regarding events occurring during the period of time relevant to these proceedings. On the entire record, including my observa- tion of the demeanor of the witnesses, and after considering the Counsel exhibit, “R. Exh.” for a Respondent exhibit, followed by the exhibit number(s); reference to the General Counsel’s posttrial brief shall be “GC Br.” for the General Counsel’s brief, followed by the applicable page numbers. 2 All dates are in 2010, unless otherwise indicated. 3 Initially, the Acting General Counsel sought and I granted Bannon Mills, 146 NLRB 611, 614 fn. 4 633–634 (1964), sanctions for Re- spondent’s continued failure to produce documents at trial in response to a March 7, 2011 document subpoena. See Tr. 47, 179–180, 267; GC Exh. 3. Later, the Acting General Counsel changed his position and sought leave and I granted a trial continuance for Acting General Coun- sel to evaluate whether to seek subpoena enforcement at the district court. Tr. 355–360, 492–495, 508, 593–594, 624–625. Finally, the Acting General Counsel determined that district court enforcement was unnecessary and moved for a trial resumption which I granted without timely opposition. GC Exh. 22. JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 387 brief filed by the Acting General Counsel,4 I find the following events occurred in the circumstances described below during the period relevant to these proceedings. On the entire record,5 including my observation of the de- meanor of the witnesses, and after considering the brief filed on October 7, 2011, by the Acting General Counsel for the reasons set forth below I find that Respondent violated the Act as al- leged. FINDINGS OF FACT I. JURISDICTION The Respondent is a California corporation with offices and activities in Nipomo, California, with projects throughout Santa Barbara County, California. The Respondent is engaged in the business of commercial and residential landscaping services for governmental and nongovernmental customers who pay either a prevailing wage or a non-prevailing wage depending on the project. The parties stipulated and I find that during the 12- month period ending June 10, the Respondent in conducting its business operations, provided services valued at $14,880 for Hensel-Phelps Construction Co. at its construction project at the Vandenburg Air Force Base, a base of the United States Air Force, located in the State of California. (Tr. 508, 510.) II. ALLEGED UNFAIR LABOR PRACTICES A. Background As stated above, the Respondent, a California corporation, is engaged in the business of landscape contracting providing commercial and residential landscaping services in and around northern Santa Barbara County, California, with its business located in Nipomo, California. (Tr. 20, 58–60; GC Exhs. 4 and 11 at 2.) Respondent is owned by Jason Lopez (Owner Lopez) who also acts as the Respondent’s president with the added final authority to hire, fire, and layoff the Respondent’s em- ployees. Id. Owner Lopez’ brother, Martin Lopez (MLopez), also has the authority to direct the Respondent’s employees’ work activities and hire employees at the Respondent. (Tr. 82, 192–193, 522–523.) Owner Lopez admitted that MLopez is the Respondent’s supervisor. (Tr. 523.) The Respondent is a mem- ber of, or participates in, an association or other employer group known as the Landscape & Irrigation Joint Journeymen & Apprentice Training Committee of Southern California that engages in collective bargaining. (GC Exhs. 4, 10, and 11 at 2.) From June 10, 2009 to June 10, Respondent performed work at Allan Hancock College, Vandenberg Air Force Base, and Solvang Elementary School. (Tr. 181.) In conducting its busi- ness, the Respondent derived at least $500,000 in gross revenue from the performance of its landscaping services and purchased materials or services directly from outside California valued at $5000 during the 12-month period ending June 10. (GC Exhs. 4 and 11 at 2.) In addition, during this same time period, the 4 At the close of hearing, all parties were provided the opportunity to submit a closing brief with the announced filing deadline of Friday, October 7, 2011. Neither the Charging Party nor the Respondent timely filed closing briefs. See Tr. 657–659. 5 All revisions to the transcript have been noted and corrected. Respondent’s gross amount of its purchases from firms which, in turn, purchased those goods directly from outside California equaled or exceeded $50,000. Id. Finally, the Respondent employed approximately 18–20 unit individuals during the same relevant time period. (Tr. 121, 465–66; GC Exhs. 4, 11 at 2, and 18.) The following employ- ees of the Respondent (the unit), constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All full-time and regular part-time landscaping em- ployees employed by the Employer [Respondent] in all coun- ties within the State of California. Excluded: Confidential employees, secretaries, and supervi- sors and guards as defined by the Act, as amended. (GC Exh. 17.) The unit landscaping employees would perform basic garden and landscaping work for the Respondent that included manual and electric hammer digging, irrigation pipe installation, use of tractors, grass cutting, plant maintenance and planting. (Tr. 193–194.) B. The January Beginning of the Union Campaign at Respondent In or about January, the Respondent’s employees began to seek representation from the Union in talks with its representa- tive, Perfecto Ramirez, in part because the Respondent was consistently late in paying employees. (Tr. 198–199, 380, 453.) (See also GC Exh. 8.) In addition to later testifying on behalf of the Union at the preelection hearing as stated below, employee Olguin was the leader in the Union’s organizing campaign and he regularly helped organize and attend union meetings. (Tr. 200–201, 454.) Employee Mota was also working directly with the Union in the initial organizing drive and he would make telephone calls to the Respondent’s employees to inform them of upcoming meetings with union representatives. (Tr. 414, 454.) Specifically, employee Mota spoke to coworkers to con- vince them to support the Union, and he also helped organize and regularly attended Union meetings. (Tr. 381–382, 454.) After several months of organizing and meetings, in May, the Union filed a representation petition which became Region 31 Case 31–RC–8811. (Tr. 200–202; GC Exhs. 13, 14 and 15.) In addition to organizing employees, the Union regularly deals with employers about wages and rates of pay, vacation benefits, among other things, and employees regularly participate in union meetings and elect union leadership. (Tr. 149–152, 381, 404, 453–454; GC Exh. 10.) C. The June Representation Hearing The resulting representation hearing took place over several days in June, including June 17, and employee Olguin testified on behalf of the Union. (Tr. 202–203, 458.) Employee Olguin was previously hired at the Respondent by Owner Lopez in approximately mid-2007. (Tr. 192.) Owner Lopez attended the hearing as well, including June 17, and saw employee Olguin attend the hearing and testify on behalf of the Union. (Tr. 63– 64, 70, 202–203; GC Exh. 5 at 44, 246.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388 On or about June 18, Owner Lopez spoke to employee Ol- guin alone at the beginning of a workday while other employ- ees were milling around the Respondent’s yard. (Tr. 64–65, 67, 70, and 203–204, 292.) Employee Olguin understands most English statements but speaks only patchy English as well while Owner Lopez speaks a little bit of Spanish and admits that he roughly is able to communicate with employee Olguin. (Tr. 81, 117, 204–205, 207–208.) Speaking in both English and Spanish, Owner Lopez asked Olguin if he knew what the Union was. (Tr. 204–205.) Olguin responded that he was aware of the benefits a union can provide. (Tr. 205.) Owner Lopez then told Olguin that Olguin did not know what the Union was and of- fered him prevailing wage jobs,6 “[I]f [Olguin] want[s] more money or if [he] want[s] prevailing work, just tell me.” (Tr. 205, 292, 296.) Owner Lopez further offered Olguin prevailing wage work at a military base if he wanted them and Owner Lopez admitted to Olguin that Owner Lopez did not want a unionized work force at the Respondent. Id. Olguin responded by telling Owner Lopez that he would think about it and the conversation turned to work matters. (Tr. 206.) Next, employee Olguin gave Owner Lopez a receipt to be re- imbursed for $20 that Olguin had spent on gas for work. (Tr. 206.) Owner Lopez’ response to this was to give employee Olguin $1007 and Owner Lopez told him to buy 6 quarts of oil and to use the rest of the money to buy lunch for employee Olguin and two other coworkers. (Tr. 206, 296, 316.) Prior to this occasion, Owner Lopez had never given employee Olguin extra money beyond expense reimbursements. (Tr. 207.) Owner Lopez then told Olguin: “Think about it. If I want, I can close down the company [the Respondent] and I [can] open it again the day after tomorrow with a different name. What are the people going to do?” (Tr. 207.) On July 13, Owner Lopez, as the Respondent’s president, signed a Project Agreement for “newly signed employers” with the local Union which acknowledges the July 13 collective- bargaining agreement between the Respondent and the Union. (Tr. 152–153; GC Exhs. 9 and 10.) The project was limited to a project between the Respondent and Contractor Hensel-Phelps located at Vandenberg Air Force Base but during the time peri- od that the Respondent worked the project, the project labor agreement incorporates, and the parties agree to be bound by the collective-bargaining agreement of the International Union. (Tr. 153, 162–165, 177; GC Exhs. 9 and 10.) Subsequently, the Regional Director issued a Decision and Direction of Election on August 18. (GC Exh. 12.) 6 As credibly explained by employee Olguin, prevailing wage jobs are government jobs that pay approximately $30 per hour more than other projects at Respondent. Tr. 194, 205–206. 7 There is conflicting testimony as Owner Lopez testified that he gave employee Olguin $200 while employee Olguin convincingly testified with no pause that he received a $100 bill from Owner Lopez on June 18. Tr. 70–71, 206, 573; GC Exh. 5 at 251. As referenced below, employee Olguin was by far the more credible witness than Owner Lopez and I credit employee Olguin’s testimony over Owner Lopez. D. The September Union Election On the morning of September 17, the Board’s Region 31 conducted the election in its Case 31–RC–8811 at the Respond- ent’s facility yard in Nipomo, California. (Tr. 83, 197, 213, 324–326, 425.) As the election was under way, while approxi- mately 12 employees were gathered outside of the Respond- ent’s area housing the ballots, employee Mota arrived and met with his coworkers to encourage them to vote in the presence of Owner Lopez who was seated in his truck approximately 15 feet away from the employees and observed Mota meet with his coworkers. (Tr. 382–383, 511–512.) Mota handed out coffee and donuts to his coworkers. (Tr. 382.) After talking to his coworkers, employee Mota led them into the Respondent’s adjacent construction yard area to vote while Owner Lopez watched from a short distance. (Tr. 324–326, 385, 511–512.) Employees Mota and Olguin voted on September 17 with the other employees and Olguin also acted as the union election observer by the polling place though he could not actually see the area outside of the yard, including the parking lot or inside the Respondent’s office during the election. (Tr. 210, 214, 272, 329, 384–385.) Once the polls closed, the Board agent in charge of the elec- tion conducted the vote count and announced, in the presence of the Respondent’s representative, Erik Benham,8 that the votes cast were 9–8 in favor of the Union, with 3 determinative challenges pending. (Tr. 214, 345, 461; GC Exh. 16.) E. The Discharges of Employees Mota and Olguin Later in the afternoon on Friday, September 17, after the election had been completed, the Respondent laid off and fired employee Mota who had worked for the Respondent as a land- scaper since 2008. (Tr. 213, 377, 387, 443; GC Exh. 19.) At that time, the Respondent also laid off two other employees. (Tr. 473.) Owner Lopez admits that he was aware of employee Olguin’s union activity during the preceding months. (GC Exh. 7.) Although the Respondent has asserted that the reason for the 8 As stated above, Benham also participated at trial as the Respond- ent’s nonattorney representative on behalf of the Respondent and its president, Owner Lopez, though he did not comply with my March 31, 2011 order that he file a written Notice of Representation with the Division of Judges “as soon as possible.” Tr. 8, 77–78, 171. Moreover, I find that the Respondent was not proceeding at trial in pro se as the Respondent selected Benham as its nonattorney representative and had ample time and opportunity since the original June charge to secure a different representative. Tr. 171, 319–320. The NLRB has jurisdiction to proceed against the corporate Respondent here, though it was not represented at the administrative hearing by an attorney but by its nonattorney representatives. See Secs. 102.21, 102.38, and 102.177 of the Board’s Rules and Regulations (“. . .attorney or nonattorney repre- sentative of record . . . .” and any party can appear at hearing “in per- son, by counsel, or by other representative, . . . .”). See also Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Board, 99 Cal.App.4th 1094, 1103 (2002) (California administrative agency had jurisdiction over corporate licensee despite licensee not being repre- sented by an attorney at administrative hearing). Here where more than a year has passed from the filing of the initial charge, I find that the Respondent had ample time and ability to retain legal counsel by the close of trial. See Patrician Assisted Living Facility, 339 NLRB 1153 fn. 3 (2003). JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 389 layoff was lack of work, the termination letters dated Septem- ber 17 also states this, Owner Lopez also admits to employee Mota that Owner Lopez’ belief that employee Mota, another employee named Omar, and the second Omar’s brother–the three of them–had filed a “complaint” with the Union was one reason for his layoff. (Tr. 86, 387–388, 428–430, 576, 579–581; GC Exhs. 7 and 19.) In addition, Mota credibly explained that the house project in Nipomo that he was working when he was laid off had another 2 months to go to complete the installation of sidewalks and irrigation pipes. (Tr. 385–386.) Mota also described a number of the Respondent’s ongoing projects at the time of his layoff including projects at Vandenberg Air Force Base, one on Broadway in Santa Maria, one in Santa Barbara, one at a school in Solvang, and one on Route 46. (Tr. 388– 389.) On Monday, September 20, the next business day after the election, Owner Lopez laid off employee Olguin allegedly be- cause there was no work. (Tr. 86, 214–215, 330, 576, 579–581; GC Exhs. 7 and 20.) At trial, the Respondent argued that em- ployee Olguin was laid off because he did not have a valid driver’s license despite being informed by employee Olguin in December 2009 that he did not have a valid driver’s license. (Tr. 298–301, 361–362, 522.) No mention of any failure on Olguin’s part to have a valid driver’s license was included in his lay off letter. (GC Exh. 20.) Up until that time, employee Olguin had worked for the Re- spondent more than 2 years. (Tr. 118, 192.) Since February 1 and continuing until his layoff on September 20, employee Olguin worked at the Respondent with the gardeners or mainte- nance crew. (Tr. 216, 242.) Before that time, Olguin worked full time for the Respondent on prevailing wage jobs. (Tr. 245.) Employee Olguin estimated that he regularly worked 50 to 52 hours per week for the Respondent and averaged $700 per week in earnings for most regular work and almost $2000 per week when he worked on a prevailing wage government jobs for the Respondent. (Tr. 194, 205–206, 216.) Mota explained that he worked full time averaging between 8–10 hours per day depending on the type of work and he was similarly paid $8 per hour for “regular” landscaping work and up to $30 per hour for “government jobs” (Tr. 378, 420.) Owner Lopez admitted that he did not notify the Union prior to laying off employees Mota and Olguin. (Tr. 87, 152, 463– 464.) Owner Lopez further admits that there have been times when he would rehire former employees after they had been fired or laid off. (Tr. 87.) Within a month of his layoff, employee Mota went to speak with Owner Lopez at the Respondent’s facility to ask if he could return to work. (Tr. 390–391.) When Mota asked Owner Lopez if he was going to give Mota work, Owner Lopez began to laugh and told employee Mota that there was no way he would do so because employees Mota and Olguin had filed a “complaint.” (Tr. 391.) Employee Olguin also spoke to Owner Lopez after his layoff. (Tr. 218.) Owner Lopez told employee Olguin at that time approximately 9 a.m. at a jobsite that every- one from the Union were good-for-nothing assholes who simp- ly wanted employee Olguin’s money. (Tr. 219–220.) At the time of the layoffs, the amount of work at the Re- spondent had not changed. At that time, the Respondent was working on numerous projects, and employee Mota was work- ing 8-hour days, just as he had throughout his employment with the Respondent. (Tr. 378, 388–389.) Similarly, at the time of his layoff, employee Olguin was working in the gardening maintenance crew and the amount of work on that crew had not changed; in fact, employee Olguin was working the same num- ber of hours he had always worked for the Respondent. (Tr. 194, 216.) Employee Olguin had previously stopped driving the Respondent’s truck as its regular driver Mario who left in pro- test of nonpayment of wages in May had returned on August 26 or 27. (Tr. 296–298, 346–347.) Moreover, by October, only a month after laying off em- ployees Mota and Olguin, the Respondent hired three new em- ployees who were identified by employee Mota as wearing the Respondent’s yellow company shirts and even Owner Lopez acknowledged that one new employee was working for the Respondent after the layoffs.9 (Tr. 90, 217–218, 389–391, 464– 466, 470, and 587; GC Exhs. 8 and 18.) By December, at least two of the Respondent’s employees, Venegas and Estrada, signed a December 10 letter to the Respondent complaining of nonpayment of wages. (GC Exh. 8.) These two respondent employees were not listed on the Excelsior list submitted in August listing the Respondent active employees eligible to vote in the September election. (Tr. 465; GC Exhs 8 and 18.) Owner Lopez testified that his brother, MLopez, hired these two em- ployees at the Respondent. (Tr. 549.) At no time before trial had the Respondent called employee Olguin back to work. (Tr. 217.) After the election, the challenged ballots were resolved and on November 10, the Regional Director for Region 31 certified the International Union as the exclusive bargaining representa- tion of the unit. (Tr. 345, 462–463; GC Exh. 17.) No timely objections to the certification were filed by the Respondents. Id. III. DISCUSSION AND ANALYSIS A. Credibility The key aspects of my factual findings above with respect to the Respondent’s engaging in commerce through its generation of revenues and expenses, Owner Lopez’ and MLopez’ true supervisory roles with the Respondent, the interrogation, threats and promises of prevailing wage jobs and money, and the un- derlying reasons which led to the discharge of employees Mota and Olguin incorporate the credibility determinations I have made after carefully considering the record in its entirety. The testimony concerning the material events in 2010 contain sharp conflicts. Evidence contradicting the findings, particularly tes- timony from Owner Lopez, has been considered and rejected for the reasons that follow. My credibility resolutions have been formed by my consid- eration of a witness’ opportunity to be familiar with the sub- jects covered by the testimony given; established or admitted 9 Owner Lopez denied hiring any new workers after the election and the firing of employees Olguin and Mota. Tr. 88. I reject this testimony as not credible and inconsistent with the letter from employees showing three new employees since September 20 who signed a December 10 letter stating that unless they get paid in full, they will not come back to work with the Respondent. Tr. 89; GC Exh. 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390 facts; the impact of bias on the witness’ testimony; the quality of the witness’ recollection; testimonial consistency; the pres- ence or absence of corroboration; the strength of rebuttal evi- dence, if any; the weight of the evidence; and witness demeanor while testifying. More detailed discussions of specific credibil- ity resolutions appear herein in those situations that I perceived to be of particular significance. Employee Olguin’s demeanor at trial was impressive. He had worked with the Respondent’s president, Owner Lopez, for over almost 3 years before being laid off on September 20. Olguin’s chronology of events and detailed recollection were quite credible especially when verified numerous times by Mo- ta, Ramirez, and even infrequently by Owner Lopez. He was especially believable when he discussed his conversation with Owner Lopez on June 18 and recalled both Owner Lopez’ statements and his own responses. Employees Mota and Olguin were also credible witnesses as they were earnest, genuine, and their testimonies were reasona- ble and consistent with the record. In addition, they appeared serious and respectful of the hearing process. In contrast, Own- er Lopez either seemed unable to appreciate the seriousness of the hearing process, or did not care to directly answer questions posed to him and was very evasive and unbelievable except when consistent with Olguin’s or Mota’s testimony. Employee Olguin was especially credible as he explained how he knew that the Respondent had hired new employees other than him after his layoff because over the years that he worked at the Respondent, he got to know all the workers and he recognized the new employees hired by the Respondent since his layoff. (Tr. 218.) Ramirez from the Union provided a convincing explanation that at least two employees working for the Respondent in De- cember, Jose Luis Venegas Jr. and Donato Estrada were not listed on the Excelsior list of the Respondent’s employees eli- gible to vote at the September election. (Tr. 464–466, 587; GC Exhs. 8 and 18.) I reject Owner Lopez’ contrary testimony (Tr. 88) though he did admit that his brother MLopez hired Venegas and Estrada at the Respondent. (Tr. 548–550, 587.) Further- more, the Respondent’s other employees were not under the control of the Acting General Counsel and the failure to call any such witnesses should not affect the credibility of employ- ees Olguin’s and Mota’s testimony. As stated above, I found key elements of the testimony given by the Respondent’s principal witness, Owner Lopez, that con- flict with the testimony of employee witnesses unworthy of belief especially when the testimony contradicts his earlier testimony from the representation hearing or other documentary evidence. In virtually all of the significant instances, reliable documentary evidence failed to support accounts provided by the Respondent’s key witness. Owner Lopez’ testimony was also marked by an effort to re- cant prior signed admissions that the Respondent met the Board’s commerce requirements in the form of signed com- merce questionnaires tendered to the Region on or about June 10 (GC Exh. 4). His behavior at the hearing was marked by a continued refusal to produce subpoenaed documents (with the exception of one single project contract), and a refusal to tender other subpoenaed materials although he was directed to do so. I did not find Owner Lopez credible given his demeanor at trial and his disrespect for the trial process. Therefore, I reject his testimony except for the noted admissions referenced above. Similarly, his testimony was marked by what could only be an intentional failure to recall answers to questions, and a com- plete refusal to answer other questions although he was directed to do so. Owner Lopez denied the Respondent engaged in commerce within the meaning of the Act. Based upon the sub- mitted evidence, noting Owner Lopez’ refusal to answer certain questions, and to supply certain subpoenaed records, I have concluded the Respondent in fact is an employer in commerce meeting the Board’s requirements as set forth above. My con- clusion that the Respondent is an employer in commerce will be further discussed in the analysis section of this decision. Owner Lopez was also not credible that he spoke to employ- ee Olguin about having a valid driver’s license on September 15 and that this allegedly was the first time he ever heard that employee Olguin did not have a valid driver’s license. (Tr. 520–522.) Also it is not credible that Owner Lopez laid off Olguin for not having a valid driver’s license as the September 19 termination letter makes no legitimate reference to Olguin not having a driver’s license. (Tr. 522, 569; GC Exh. 20.) It is more credible that this shifted theory for laying off employee Olguin was first developed at trial by the Respondent’s repre- sentative, Benham, and not considered before April 2011. Fur- thermore, at the time of his layoff, Olguin was no longer re- sponsible for driving the Respondent’s truck. (Tr. 575, 588.) I also reject Owner Lopez’ self-serving testimony that his broth- er, MLopez, made a list of four or five of the Respondent’s employees to fire during the week of September 17 or that the Respondent had too many employees to begin with since the list was not produced and MLopez did not testify. (Tr. 522– 523, 526.) B. At All Material Times, the Respondent was an Employer Engaged in Commerce within the Meaning of Section 2(2), (6), and (7) of the Act The Acting General Counsel alleges in paragraphs 2 and 3 of the complaint that the Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent, however, refused to admit that at all material times, it was an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. (Tr. 19.) As stated above, though, as admitted in the Questionnaire on Commerce Information admittedly signed by Owner Lopez on June 10, I find that in conducting its business in Nipomo, Cali- fornia, for residential and commercial customers as a California corporation, the Respondent derived at least $500,000 in gross revenue from the performance of its retail and wholesale land- scaping services and purchased materials or services directly from outside California valued at $5000 during the 12-month period ending June 10. (Tr. 62; GC Exhs. 4 and 11 at 2.) The Respondent did not deny signing the commerce information questionnaire on June 10 nor was any credible evidence put forth to dispute the accuracy of the information provided within the questionnaire. I find that the Acting General Counsel has put forth evidence sufficient to show that the Respondent’s JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 391 gross revenues satisfy the Board’s retail standard. See Carolina Supplies & Cement Co., 122 NLRB 88 (1958). In addition, during this same time period, the Respondent’s gross amount of its purchases from firms which, in turn, pur- chased those goods directly from outside California equaled or exceeded $50,000. Id. Alternatively, the Respondent’s purchase of materials or services directly from outside California valued at $5000 during the same 12-month period, also admitted in the same questionnaire, is sufficient to establish statutory jurisdic- tion. (GC Exhs. 4 and 11 at 2.) See also Pioneer Concrete Co., 241 NLRB 264, 265 (1979), enfd. 637 F.2d 698 (9th Cir. 1981). Finally, the Respondent employed approximately 18 individu- als during the same relevant time period. (Tr. 465–466; GC Exhs. 4, 11 at 2, and 18.) Thus, I agree with the Acting General Counsel’s argument. (GC Br. at 8–9.) Consequently, I find that at all material times, the Respondent was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act as alleged in paragraphs 2 and 3 of the complaint. C. At All Material Times, the Union was a Labor Organization within the Meaning of Section 2(5) of the Act The Acting General Counsel alleges in paragraph 4 of the complaint that at all material times, the Union has been a labor organization within the meaning of Section 2(5) of the Act. The Respondent, once again, refused to admit that the Union is a labor organization within the meaning of Section 2(5) of the Act. (Tr. 19.) However, based on the undisputed testimony of Angelo Arevalos, a 28-year union representative and the local Union’s vice president and business agent, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act which regularly deals with employers about wages and rates of pay, and whose employees regularly participate in un- ion meetings and elect union leadership. (Tr. 148–178, 452– 490; GC Exh. 10.) Moreover, on November 10, the Union was certified by the Board in a representation proceeding involving this Respondent’s business. (Tr. 345, 462–463; GC Exh. 17.) As a result, I further find that at all material times, the Union was a labor organization within the meaning of Section 2(5) of the Act as alleged in paragraph 4 of the complaint.10 D. Supervisory Status of Owner Lopez and Supervisor/Agent Status for MLopez Despite its admission that Owner Lopez, the Respondent’s owner and president, has final authority to hire, fire, and lay off the Respondent’s employees, the Respondent challenges the supervisor and agent status for Owner Lopez. (See Tr. 19, 60.) Similarly, despite the Respondent’s admission through its pres- 10 The Regional Director also found that the Union was a labor or- ganization in his decision in the R-case. GC Exh. 12 at 3–6. The Re- spondent did not file any timely exceptions to the Regional Director’s factual findings in his decision. While I do not rely on the Regional Director’s decision, I take administrative notice of it and I note that the Respondent did not offer any new reliable evidence proving that the Regional Director’s factual findings were incorrect. Tr. 188. No con- vincing arguments or supplemental reliable evidence have been prof- fered by the Respondent in this case to dispute the Union’s labor organ- ization status. ident, Owner Lopez, that his brother, MLopez, is a supervisor who is in charge and hires employees, the Respondent also refused to stipulate to the supervisor and agent status for MLopez. (See Tr. 19, 60, 523.) Under Section 2(11) of the Act a supervisor is any person: Having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recom- mend such action, if in connection with the foregoing the ex- ercise of such authority is not a merely routine or clerical na- ture, but requires the use of independent judgment. 29 U.S.C. § 152(11). Each of these criteria need not be satisfied for an employee to be classified as supervisor under Section 2(11). National Welders Supply Co., 129 NLRB 514 (1960). Moreover, the Supreme Court has suggested that an employee may be classi- fied as a supervisor if he meets any 1 of the 12 criteria. NLRB v. Yeshiva University, 444 U.S. 672 (1980). However, to be classified as a supervisor the employee must (1) have authority, (2) to use independent judgment, (3) in performing such super- visory functions, and (4) in the interest of management. NLRB v. Healthcare & Retirement Corp of America, 511 U.S. 571 (1994). However, making routine assignments without the use of independent judgment has been found to be insufficient to meet the requirements of a statutory supervisor. Stanford Hotel, 344 NLRB 558 (2005). Owner Lopez fits several of the Act’s enumerated criteria in- cluding having final authority for hiring, laying off, and dis- charging employees. (See Tr. 19, 60.) The Respondent’s writ- ten work contracts, termination letters, and other key events such as the Respondent’s representative at the representation hearing all show that Owner Lopez, as the Respondent’s owner and president, had full authority to act for the Respondent in all employee and labor matters. (See GC Exhs. 4, 5, 7–9, 11, 19– 20.) Employees were directed to contact Owner Lopez or MLopez for any problems or complaints they had related to work. Also, Owner Lopez as evidenced by his June 18 conversa- tion with employee Olguin concerning his offer to provide Ol- guin and other employees with higher paying prevailing wage jobs shows that Owner Lopez had the ability to directly impact the earning capacity of the landscaper employees by assigning them more or less lucrative jobs. Although the Respondent claims that Owner Lopez does not have any supervisory authority over its employees, it is clear that Owner Lopez is responsible for assigning work and hiring, laying off, and firing employees. It is telling that at the trial in this matter, Owner Lopez suddenly began saying that his broth- er MLopez was the employees’ supervisor and hired employees to create the appearance that he had no authority over the land- scape employees though Owner Lopez refused to stipulate to this fact. In addition to the primary supervisory status criteria, Owner Lopez also meets many of the secondary criteria the Board has developed including employees’ perception that Owner Lopez is a supervisor as well as his direct involvement in employee DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392 Olguin’s and employee Mota’s lay offs. See Ken-Crest Ser- vices, 335 NLRB 777, 779 (2001). In addition, Owner Lopez is inextricably linked with management and all of his actions are in the interest of management. Owner Lopez is the namesake, owner, founder, and president of the business. Despite the Respondent’s claims that Owner Lopez did not have any authority over the employees, it is clear that he did have actual control and authority over the landscape employees and that he directly supervised them. The record is rife with examples of how Owner Lopez exerted that control and as such, I find that Owner Lopez is a supervisor within the mean- ing of Section 2(11) because he is admittedly vested with final authority to hire, lay off, and fire the Respondent’s employees, assign and direct their work, and discipline them. I further find that Owner Lopez’ brother, MLopez, is also a supervisor at the Respondent under Section 2(11) of the Act, because admittedly by Owner Lopez, MLopez is a supervisor who is also in charge and hires employees as their supervisor. (Tr. 523.) Consequently, I find that Owner Lopez and MLopez are supervisors within the meaning of Section 2(11) of the Act. E. Respondent Violated Section 8(a)(5) and (1) of the Act by Laying Off Employees Olguin and Mota Without Prior Notice to the Union and Without Affording the Union an Opportunity to Bargain with the Respondent The Acting General Counsel alleges in paragraphs 6 and 10 of the complaint that, on September 17 later in the day after the representation election for employee Mota, and on September 20 for employee Olguin, the Respondent laid them off without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this conduct and the ef- fects of this conduct in violation of Section 8(a)(5) and (1) of the Act. As I found above, Owner Lopez admitted and the un- ion representatives confirmed that the Respondent did not noti- fy the Union prior to laying off employees Mota and Olguin. (Tr. 87, 152, 463–464.) Therefore, I further find that Owner Lopez did not bargain with the Union prior to laying off em- ployees Mota and Olguin. The complaint alleges, and the evidence submitted supports, that on September 17, a representation election was conducted among employees in the unit and on November 10, the Union was certified as the exclusive collective-bargaining representa- tive of the unit. (Tr. 83, 197, 213–214, 324–326, 345, 425, 461–463; GC Exhs. 16 and 17.) Thus, the layoffs on employees Mota and Olguin took place between the election and the certi- fication of the Union. The Board has held in Consolidated Printers, 305 NLRB 1061, 1067 (1992), that no unilateral changes may be made by an employer during the period of time between the results of the election and eventual certification. Accord, Ebenezer Rail Car Services, 333 NLRB 167 (2001). Here, there is no question that a change in conditions of em- ployment took place on September 17 after the representation election and again on September 20 for employees Mota and Olguin, when they were unilaterally laid off. I also rely on the following well-established principles. Sec- tion 8(a)(5) and (d) of the Act obligate an employer to bargain with the representative of its employees in good faith with re- spect to “wages, hours and other terms and conditions of em- ployment.” NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958); Fiberboard Corp. v. NLRB, 379 U.S. 203, 210 (1964). Section 8(a)(5) also obligates an employer to notify and consult with a union concerning changes in terms and conditions of employment before imposing such changes. NLRB v. Katz, 369 U.S. 736, 743 (1962). When a majority of the unit employees have selected the union as their representative in a Board- conducted election, the obligation to bargain, at least with re- spect to changes in terms and conditions of employment, com- mences not on the date of certification, but as of the date of the election. Alta Vista Regional Hospital, 357 NLRB 326, 327 (2011). Accord: Mike O’Connor Chevrolet-Buick-GMC Co., 209 NLRB 701 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975). The Board explained in Mike O’Connor Chevrolet, supra, The Board has long held that, absent compelling economic considerations for doing so, an employer acts at its peril in making changes in terms and conditions of employment dur- ing the period that objections to an election are pending and the final determination has not yet been made. And where the final determination on the objections results in the certifica- tion of a representative, the Board has held the employer to have violated Section 8(a)(5) and (1) for having made such unilateral changes. Such changes have the effect of bypassing, undercutting, and undermining the union’s status as the statu- tory representation of the employees in the event a certifica- tion is issued. To hold otherwise would allow an employer to box the union in on future bargaining positions by implement- ing changes of policy and practice during the period when ob- jections or determinative challenges to the election are pend- ing. (Id. at 703 (footnotes omitted).) The Respondent’s stated position at trial was that because the election was not certified until November and because the 9–8 vote in favor of the Union on September 17 included 3 chal- lenged ballots, the Respondent “was not bound by the union because there was no determination on that day [September 17] . . . there was no winning . . . [so Respondent] who has employ- ees at will who he [Respondent] can layoff, fire, do basically whatever he wants” without any risk of being subject to the Act. (Tr. 344–345, 374–375.) As shown above, however, this position is contrary to Board law as referenced above. See also Whitewood Maintenance Co., 292 NLRB 1159, 1211 (1989), enfd. sub nom. Texas World Service Co. v. NLRB, 928 F.2d 1426 (5th Cir. 1991). Moreover, the Respondent admits that it did not notify the Union prior to laying off employees Mota and Olguin and that it did not bargain with the Union prior to laying off employees Mota and Olguin. The record contains only the Respondent’s self-serving and conclusory statements that because there was no work the changes were necessitated by compelling economic considera- tions. No evidence was submitted, however, showing extraor- dinary, unforeseen events occurring that had a major economic effect on the Respondent. As stated above, this evidence is contradicted by other evidence and no evidence was presented showing that the Respondent made its decision to fire Olguin and Mota before the union election. Thus, I find that: (1) the JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 393 Respondent’s shifting reasons for laying off employee Olguin; (2) the Respondent’s hiring new employees soon after the layoffs and its not offering employees Olguin and Mota theirs jobs back before hiring new workers; (3) Olguin’s and Mota’s credible testimony that at the time of their layoffs their amount of work and work hours remained unchanged; and (4) the Re- spondent’s incorrect application of current Board law repudi- ates its unsupported argument that there were compelling eco- nomic reasons for their employees’ layoffs. In so doing, the Respondent assumed the risk. Because the final determination in the representation proceeding resulted in the certification of the Union, the Respondent violated Section 8(a)(5) and (1) of the Act by its unilateral actions referred to above. F. Discriminatory Treatment of Discharged Union Employees Motive-based allegations of discrimination are decided under the framework of the Board’s Wright Line decision.11 Dis- charge because of an employee’s membership in or activities on behalf of a labor organization violates Section 8(a)(3). The General Counsel’s initial burden under Wright Line is to show that the alleged discriminatee’s protected conduct was a moti- vating factor in the discharge. The elements commonly required to support such a showing are union or other protected activity by the employee, employer knowledge of that activity, and antiunion animus on the part of the employer. See, e.g., Austal USA, LLC, 356 NLRB 363 (2010); Willamette Industries, 341 NLRB 560, 562 (2004). The timing of the discharge in relation to the alleged protected conduct may also be relevant. See, e.g., Best Plumbing Supply, 310 NLRB 143 (1993); Embassy Vaca- tion Resorts, 340 NLRB 846, 848 (2003). Generally, the Acting General Counsel relies on evidence12 such as the timing of the employer’s action,13 pretextual mo- tives,14 inconsistent treatment of employees,15 and shifting ex- planations provided by the employer.16 Fluor Daniel, Inc., 311 NLRB 498 (1993). “Since motive is critical to a finding of an 8(a)(3) violation, but since direct evidence of motive is rare, one must look to all of the attendant circumstances to determine whether the Respondent acted improperly or not.” Keller Mfg. Co., 237 NLRB 712, 734 (1978). See also Atlantic Metal Products, Inc., 161 NLRB 919, 922 (1966). Moreover, where the employer’s “given reason for termination is implausible, then that fact tends to prove an attempt to disguise the true, and unlawful, motive.” Keller Mfg. Co., citing Capitol Records, Inc., 232 NLRB 228 (1977). See also J. S. Troup Electric, 344 NLRB 1009 (2005) (Board will infer an unlawful motive if the 11 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 12 See also Asociacion Hospital Del Maestro, 291 NLRB 198 (1988) (finding that the employee’s union activities were widespread and known to the employer and that there was companywide union ani- mus); White-Evans Service Co., 285 NLRB 81 (1987) (animus found where employer fired two of the most outspoken union supporters and refused to rehire them even though they continued seeking employees). 13 Bay State Ambulance Rental, 280 NLRB 1079 (1986). 14 Abbey Island Park Manor, 267 NLRB 163 (1983). 15 Carpenters Health & Welfare Fund, 327 NLRB 262 (1998). 16 NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263 (7th Cir. 1987). employer’s action is “baseless, unreasonable, or so contrived as to raise a presumption of unlawful motive”). Inferences of animus and discriminatory motivation may be warranted under all the circumstances of a case, as noted even without direct evidence. Evidence of suspicious timing, false reasons given in defense, failure to adequately investigate al- leged misconduct,17 departures from past practices, tolerance of behavior for which the alleged disciminatee was fired, disparate treatment of the discharged employees, and reassignments of a prounion from former duties isolating the employee, all support inferences of animus and discriminatory motivation. Adco Elec- tric, 307 NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic Data Systems Corp., 305 NLRB 219 (1991); Bryant & Cooper Steakhouse, 304 NLRB 750 (1991); Bourne Manor Extended Health Care Facility, 332 NLRB 72 (2000); Visador Co., 303 NLRB 1039, 1044 (1991); In-Terminal Ser- vices Corp., 309 NLRB 23 (1992); Nortech Waste, 336 NLRB 554 (2001); Bonta Catalog Group, 342 NLRB 1311 (2004); L.S.F. Transportation, Inc., 330 NLRB 1054 (2000); and Medic One, Inc., 331 NLRB 464 (2000). Once the General Counsel makes a showing of discriminato- ry motivation, the burden of persuasion shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). In other words, under Wright Line, an employer cannot carry its burden of persuasion by merely showing that it had a legitimate reason for imposing discipline against an employee, but must show by a preponderance of the evidence that the action would have taken place even without the protected conduct. North Carolina License Plate Agency #18, 346 NLRB 293, 294 (2006). If the evidence produced by the employer is found to be pretextual, the inference of wrongful motive established by the Acting General Counsel is left intact. Frank Black Mechanical Services, 271 NLRB 1302 (1984); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). In short, a finding of pretext defeats any attempt by the employer to show that it would have discharged the discriminatee absent his or her (protected) union activities. Golden State Foods Corp., 340 NLRB 382 (2003). 1. Olguin’s layoff violated Section 8(a)(3) and (1) The Acting General Counsel alleges in paragraphs 7 and 11 of the complaint that, on September 20 after the representation election for employee Olguin, the Respondent laid him off which is a form of discrimination in regard to the hire or tenure or conditions of employment of its employees, thereby discour- aging membership in a labor organization in violation of Sec- tion 8(a)(3) and (1) of the Act. As such, the Acting General Counsel asserts that Olguin was terminated for engaging in 17 The Board advises that the investigation should be full and fair. The Board has also noted, however, that while an employer’s failure to conduct a full and fair investigation into alleged misconduct of an em- ployee may constitute evidence of discriminatory intent, such failure will not always constitute evidence of such intent. Hewlett Packard Co., 341 NLRB 492 (2004). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394 union and protected concerted activities and that the Respond- ent’s action violated Section 8(a)(3) and (1). The Wright Line burden-shifting analysis set forth above is applicable to Ol- guin’s termination. Therefore, the Acting General Counsel must establish that Olguin was engaged in protected conduct, that the Respondent knew about his protected conduct and that union animus was a motivating factor in the Respondent’s decision to terminate Olguin. On this record, the Acting General Counsel has met his ini- tial burden of proving that the Respondent fired Olguin because he, along with Mota, was a leader in the Union’s campaign and because he was subpoenaed to testify in a Board proceeding in support of the Union’s election petition. Olguin clearly engaged in protected concerted activities by testifying at the Board hear- ing on June 17. Owner Lopez attended the hearing as well, including on June 17, and saw employee Olguin attend the hearing and testify on behalf of the Union. (Tr. 63–64, 70, 202– 203; GC Exh. 5 at 44, 246.) As stated above in addition to his testifying on behalf of the Union at the preelection hearing as stated above, employee Olguin was the leader in the Union’s organizing campaign and he regularly helped organize and attend union meetings. (Tr. 200–201, 454.) The Respondent initially argued that Olguin’s layoff was due allegedly because there was no work. (Tr. 86, 214–215, 330, 576, 579–581; GC Exhs. 7 and 20.) At trial, the Respondent’s argument shifted and became that employee Olguin was laid off because he did not have a valid driver’s license despite being alerted by employee Olguin in December 2009 that he did not have a valid driver’s license. (Tr. 298–301, 361–362, 522.) Thus, I find that the Acting General Counsel has presented evidence that establishes that the reasons given for the Re- spondent’s layoff of Olguin are pretextual—that is, either false or not in fact relied upon and the Respondent fails by definition to show that it would have taken the same action for those rea- sons, absent the protected conduct, and thus there is no need to perform the second part of the Wright Line analysis. See Gold- en State Foods Corp., 340 NLRB 382, 385 (2003). See also Rood Trucking Co., 342 NLRB 895, 898 (2004). In addition, the Respondent’s animus against the Union is shown by the independent 8(a)(1) violations I have found as described below. Furthermore, there is suspicious timing as Olguin was laid off on the first business day after the Union’s successful election on September 17. I find that employee Ol- guin’s sudden September 20 layoff being so close in time to the Union’s successful election is further evidence of the Respond- ent’s antiunion animus. Finally, as stated above, when Mota asked Owner Lopez if he was going to give Mota his job back, Owner Lopez began to laugh and told employee Mota that there was no way he would do so because employees Mota and Ol- guin had filed a union “complaint.” (Tr. 391.) Employee Olguin also spoke to Owner Lopez after his layoff. (Tr. 218.) Owner Lopez told employee Olguin at that time at a jobsite that every- one from the Union were good-for-nothing assholes who simp- ly wanted employee Olguin’s money. (Tr. 219–220.) In these circumstances, the Acting General Counsel has met his burden of showing improper antiunion animus for the job termination of employee Olguin. Where, as here, the Acting General Counsel makes a strong showing of discriminatory motivation, the respondent’s Wright Line defense burden is substantial. Bally’s Atlantic City, 355 NLRB 1319, 1321 (2010). I find that, on this record, the Re- spondent has not overcome that substantial burden and persua- sively shown that it would have fired Olguin absent his union and protected activities. Also, much of the Respondent’s de- fense is reliant on testimony at trial from Owner Lopez which I have found to be contradictory and noncredible. Consequently, I reject the Respondent’s noncredible version of the facts por- trayed through Owner Lopez as he was an unreliable witness. The Respondent has not shown that it would have terminated Olguin in the absence of his union leadership, support and pro- tected concerted activities including his testifying for the Union at the June Board proceeding. Consequently, I find that the Respondent violated Section 8(a)(3) and (1) of the Act by lay- ing off employee Olguin. 2. Mota’s layoff violated Section 8(a)(1) and (3) On this record, the same Wright Line analysis applies to the termination of Mota, as the Acting General Counsel asserts that Mota was also laid off for engaging in protected concerted activities and that the Respondent’s action violated Section 8(a)(3) and (1). Like employee Olguin, Owner Lopez viewed employee Mota as one of the union leaders and witnessed Mo- ta’s direct assistance to the Union at the union election on Sep- tember 17. Owner Lopez also had knowledge that employee Mota was working directly with the Union in the initial organ- izing drive and he would make telephone calls to the Respond- ent’s employees to inform them of upcoming meetings with union representatives. (Tr. 414, 454.) Specifically, employee Mota spoke to coworkers to convince them to support the Un- ion, and he also helped organize and regularly attended union meetings. (Tr. 381–382, 454.) On September 17, as the election was under way, while em- ployees were gathered outside of the Respondent’s work yard area housing the ballots, employee Mota arrived to greet his coworkers to encourage them to vote in the presence of Owner Lopez who was seated in his truck approximately 15 feet away. Owner Lopez observed Mota meet with his coworkers and hand out coffee and donuts to them. (Tr. 382–383, 511–512.) After talking to his coworkers, employee Mota led them into the ad- jacent construction yard area to vote while Owner Lopez watched from a short distance. (Tr. 324–326, 385, 511–512.) Employee Mota also voted on September 17 with the other employees. (Tr. 210, 214, 272, 329, 384–385.) Mota’s protect- ed concerted activity is protected by the Act. As with Olguin, at the time of Mota’s layoff on September 17, the Respondent knew of Mota’s protected concerted activities in support of the Union. It does not take a leap of faith to tie Mota’s termination to the same unlawful treatment from the Respondent that began at the time the Respondent’s principal met with Olguin on June 18 and described the threats, interrogation, and promises discussed below that would follow the prounion landscapers Olguin and Mota. As with Olguin, the Respondent’s numerous unfair labor practices demonstrate antiunion animus as does the suspicious timing of the Respondent’s layoff in relation to the union elec- JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 395 tion that was directed towards Mota to retaliate against him. Significantly, the Respondent laid off Mota later the same day as the successful election on September 17. Where, as here, the Acting General Counsel makes a strong showing of discrimina- tory motivation, the respondent’s Wright Line defense burden is substantial. Bally’s Atlantic City, 355 NLRB 1333, 1336 (2010). I find that, on this record, the Respondent has not over- come that substantial burden and persuasively shown that it would have fired Mota absent his union and protected activity. The Respondent argues that Mota was justifiably terminated due to a lack of work. At trial, however, neither Owner Lopez nor his brother presented any evidence as Owner Lopez claimed that MLopez had prepared a list of employees to lay off that included employee Mota well in advance of the Sep- tember 17 election. Instead, Owner Lopez fabricated facts that ignored more credible testimony. In addition, Owner Lopez’ true animus toward employee Mota came forth, as stated above, when Mota asked Owner Lopez if he was going to give Mota his job back, Owner Lopez began to laugh and told employee Mota that there was no way he would do so because employees Mota and Olguin had filed a union “complaint.” (Tr. 391.) In these circumstances, the Acting General Counsel has met his burden of showing improper antiunion animus for the job ter- minations of employees Olguin and, as discussed below, Mota. In conclusion, I find that the Respondent has not shown that it would have terminated Mota in the absence of his union lead- ership and protected concerted activity including his assisting employees at the union election. Consequently, I find that the Respondent violated Section 8(a)(3) and (1) of the Act by lay- ing off employee Mota. G. The Respondent Violated Section 8(a)(4) and (1) of the Act by Laying Off Employee Olguin Because he Testified at the Representation Hearing in Case 31–RC–008811 The Acting General Counsel alleges in paragraphs 8 and 12 of the complaint that employee Olguin’s testimony at the June representation hearing in Case 31–RC–008811 caused the Re- spondent’s September 20 lay off of him in retaliation or dis- crimination against employees for filing charges or giving tes- timony under the Act in violation of Section 8(a)(4) and (1) of the Act. I agree and find that the evidence referenced above shows that the Respondent unlawfully laid off employee Olguin be- cause he testified at the June representation hearing in Case 31– RC–8811. The same Wright Line analysis discussed above under Section 8(a)(3) and (1) of the Act for the Respondent’s unlawful layoff of employee Olguin because of his union ac- tivities also applies to the instant retaliation allegations under Section 8(a)(4) and (1) of the Act. See Freightway Corp., 299 NLRB 531, 532 fn. 4 (1990) (Board applies Wright Line analy- sis exactly the same to alleged 8(a)(4) violations). Moreover, Owner Lopez’ animus toward employee Olguin’s appearance and testimony on June 17 is further demonstrated by his unlaw- ful acts the very next day after the June 17 representation hear- ing as discussed below including illegal interrogation, threats, and promises of extra money and prevailing wage jobs. Conse- quently, I find that the Respondent violated Section 8(a)(4) and (1) of the Act by laying off employee Olguin because he testi- fied at the June representation hearing. H. Independent 8(a)(1) Violations The complaint alleges at paragraphs 9 and 13 that the Re- spondent violated Section 8(a)(1) of the Act at the June 18 meeting between Owner Lopez and employee Olguin when Owner Lopez: (1) interrogated employee Olguin about the his union activities and sympathies; (2) threatened employee Ol- guin with closing the business if he or his fellow employees selected the Union as their bargaining representative; (3) prom- ised employee Olguin the more lucrative and higher paying prevailing wage jobs to discourage him and his fellow workers’ support for the Union; and (4) gave employees money to dis- courage their support for the Union. I find that on June 18, Owner Lopez spoke to employee Ol- guin alone at the beginning of a workday while other employ- ees were milling around the Respondent’s yard. Speaking in both English and Spanish, Owner Lopez initiated the conversa- tion topic concerning the Union and asked Olguin if he knew what the Union was. Olguin responded that he was aware of the benefits a union can provide. Owner Lopez then told Olguin that Olguin did not know what the Union was and offered him higher paying prevailing wage jobs, “[I]f [Olguin] want[s] more money or if [he] want[s] prevailing work, just tell me.” Later, Owner Lopez said to Olguin: “Think about it. If I want, I can close down the company [the Respondent] and I [can] open it again the day after tomorrow with a different name. What are the people going to do?” Traditionally, the Board looks to the “totality of the cir- cumstances” in determining whether a supervisor’s questions to an employee about his protected activity were an unlawful in- terrogation under the Act. Rossmore House, 269 NLRB 1176 (1984), affd. sub nom UNITE HERE v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In Medcare Associates, Inc., 330 NLRB 935 (2000), the Board listed a number of factors considered in de- termining whether alleged interrogations under Rossmore House were coercive. These are referred to as “Bourne factors,” so named because they were first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). These factors include the back- ground of the parties’ relationship, the nature of the information sought, the identity of the questioner, the place and method of interrogation, and the truthfulness of the reply. Under this test, either the words themselves, or the context within which they are used, must suggest an element of interference or coercion. Stabilus, Inc., 355 NLRB 836, 849 (2010). Based on my factual findings set forth above, I find merit in all of the complaint allegations concerning the June 18 meeting between Owner Lopez and employee Olguin just 1 day after Owner Lopez witnessed Olguin testify on behalf of the Union at the representation hearing and before Olguin would return to testify later that month. (Tr. 64–65, 67, 70, 81, 117, 194, 203– 208, 292, 296, and 316.) First of all, the conversation between the two contained, among other things, Owner Lopez’ interro- gation of employee Olguin as it took place in the context of a hostile conversation as Olguin had not brought up the Union in the conversation prior to Owner Lopez doing so and the con- versation evolved to Owner Lopez’ unprovoked veiled threat of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396 business closure if employee Olguin continued his support for the Union. See Hoffman Fuel Co., 309 NLRB 327, 327 (1992) (Employer’s questioning union supporters of their union senti- ments coupled with veiled threats of a business shutdown con- stitutes unlawful interrogation.). Moreover, I find that Owner Lopez had no legitimate purpose for questioning employee Olguin about the Union and, similar to the facts in Hoffman Fuel Co., the totality of Owner Lopez’ conversation with em- ployee Olguin “had a reasonable tendency to restrain or coerce [employee Olguin] in engaging in union activities and therefore constitute[s] a coercive interrogation.” Hoffman Fuel Co., 309 NLRB at 327. Under these circumstances, I find that the Re- spondent violated Section 8(a)(1) of the Act by coercively in- terrogating Olguin on June 18 about his union activities and sympathies. Cumulatively, these statements are alleged to unlawfully threaten employee Olguin and other prounion employees with the loss of their employment should they choose the Union as their collective-bargaining agent. The lead case on this subject, and others, is NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), where the Court stated: An employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of bene- fit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control. . . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities, and known only to him, the state- ment is no longer a reasonable prediction based on available facts, but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. Owner Lopez threatened the Respondent’s employees that by joining the Union, Olguin and other union landscapers will lose their jobs at the Respondent. In the context of the Respondent’s other contemporaneous unfair practices, it is clear that the job terminations or layoffs would be caused by the Respondent’s reaction to the union campaign and a successful union election. Thus, Owner Lopez’ statement amounted to an unlawful threat of reprisal not made on the basis of objective fact. See Patsy Bee, Inc., 249 NLRB 976, 977 (1980) (Finding violation where employer had no indication from union that it would make demands which would cause economic hardship, let alone plant closure; nor did he have evidence that his customers might even pull their contracts.). Under these circumstances, I further find that the Respondent violated Section 8(a)(1) of the Act by threatening its employees with closing the business on June 18 if they selected the Union as their bargaining representative. Furthermore, Owner Lopez’ promise to the Respondent’s employees including Olguin on June 18 of higher paying pre- vailing wage jobs to discourage their support for the Union was violative of Section 8(a)(1) of the Act and constitutes interfer- ence with the employee’s Section 7 rights. At that time, Owner Lopez clearly knew of the union activity and the Board hearing the day before with resumption later in the month, and he was intent on defeating the organizing campaign by improperly influencing Olguin with increased benefits in return for him not testifying for the Union later in the month and further support- ing the Union at the Respondent. Finally, consistent with my factual findings set forth above, I further find that Owner Lopez also gave the Respondent’s em- ployees money when he handed employee Olguin $100 for the first time on June 18 and told him to use the money not only as reimbursement for minor work expenses but to buy Olguin and other respondent employees lunch. I further find that this $100- money payment was intended at least in part as an inducement to dissuade employee Olguin from continuing to support the Union. See Bourne Co., 144 NLRB 805, 815 (1963) (Employer violates Sec 8(a)(1) of the Act by giving money to an employee during a union organizing drive.). Here, too, Owner Lopez’ monetary inducement to employee Olguin and his coworkers is violative of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Owner Lopez and MLopez are supervisors within the meaning of Section 2(11) of the Act. 4. By laying off employees Olguin and Mota on September 17 and 20, 2010, respectively, without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this conduct and the effects of this conduct, the Re- spondent violated Section 8(a)(5) and (1) of the Act. 5. By laying off employees Olguin and Mota on September 17 and 20, 2010, respectively, because they support the Union or engage in protected concerted activities, such as testifying at a representation hearing or assisting employees cast their bal- lots in support of the Union, the Respondent violated Section 8(a)(3) and (1) of the Act. 6. By laying off Employee Olguin on September 20, 2010, because he testified at a representation hearing before the Board in Case 31–RC–008811, the Respondent violated Section 8(a)(4) and (1) of the Act. 7. Respondent engaged in conduct in violation of Section 8(a)(1) of the Act: (a) By interrogating employee Olguin about his union mem- bership, sympathies and/or activities on June 18, 2010. (b) By threatening employee Olguin on June 18, 2010, to close its business if he continued his union organizational activ- ities. (c) By promising employee Olguin prevailing wage jobs on June 18, 2010, if he refrained from union organizational activi- ties. (d) By giving employee Olguin and his co-workers money on June 18, 2010 if they refrained from union organizational activities. 8. Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. JASON LOPEZ’ PLANT EARTH LANDSCAPE, INC. 397 9. The above violations are unfair labor practices within the meaning 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 from engaging in such conduct in the future and to take certain affirmative action designed to effectuate the policies of the Act. To remedy the Respondent’s violations of Section 8(a)(1) of the Act, I shall recommend that the Respondent post and abide by the attached notice to employees. Having found that Respondent unlawfully laid off employees Ruben Olguin Leyva (Oliguin) and Omar Mota Garcia (Mota), I shall order it to offer them full and immediate reinstatement to their former jobs, or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Back pay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010). The Respondent shall also be required to remove from its files any and all references to the unlawful lay offs, and to notify employees Olguin and Mota in writing that this has been done and that such adverse actions will not be used against them in any way. [Recommended Order omitted from publication.]