A.P.R.A. Fuel Oil

National Labor Relations Board - Board Decisions

Nov 12, 1992

309 N.L.R.B. 480 (N.L.R.B. 1992)

480
309 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 The Respondent also submitted a letter requesting that the report
and recommendation of United States Magistrate Judge Zachary W.
Carter, a copy of which the Respondent attached to its letter, be
made a part of the record.
3 We note that at sec. III,F, par. 27, the eighth sentence should in
relevant part state, ‘‘However, Novillo never testified about his rela-
tionship with Benavides . . . .’’
4 Chairman Stephens and Member Devaney agree that Board
precedent dictates rejection of the Respondent’s exceptions regarding
the effect of the alleged unlawful alien status of employees Victor
Benavides and Alberto Guzman on their reinstatement rights. Be-
cause this case involves a Gissel bargaining order and is subject to
an outstanding 10(j) injunction, they would leave to another case any
reconsideration of the Board’s law in this area.
For the reasons articulated by the court in Del Rey Tortilleria v.
NLRB, 140 LRRM 2826 (7th Cir. July 17, 1992), Member Oviatt
finds that Victor Benavides and Alberto Guzman are not entitled to
reinstatement.
5 With regard to the General Counsel’s remaining exceptions con-
cerning violations the judge failed to find, we find these to be either
unsupported by record evidence or cumulative to those violations al-
ready found.
6 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
7 In the course of finding a Gissel bargaining order appropriate, the
judge considered and rejected the Respondent’s contention that Su-
pervisor Zarkos’ participation in the union campaign tainted a suffi-
cient number of cards to dissipate the Union’s majority status. Sub-
sequent to the issuance of the judge’s decision, United States Mag-
istrate Judge Zachary W. Carter denied a 10(j) application for a pre-
liminary injunction ordering the Respondent to recognize and bar-
gain with the Union principally because he found that Zarkos’ par-
ticipation tainted the cards. In this regard, we note that determina-
tions in cases involving a 10(j) application for a preliminary injunc-
tion are not binding on the Board. See NLRB v. S.E. Nichols, Inc.
862 F.2d 952 (2d Cir. 1988).
Further, for the reasons set forth by the judge, we find that
Zarkos’ participation in the union campaign did not taint a sufficient
number of cards to dissipate the Union’s majority status. In reaching
that conclusion, however, we do not rely on the judge’s finding that
Zarkos was a low-level supervisor. See Cal-Western Transport, 283
NLRB 453, 454–455 (1987).
8 As discussed below, because we find employees Gomez and
Muniz to be dual-function employees, we find that the judge prop-
erly included them in the unit and counted their authorization cards
for purposes of determining the Union’s majority status. We further
find it unnecessary to pass on the Respondent’s contention that
Novillo, a supervisor, solicited and secured authorization cards from
three employees and that therefore these cards are tainted and should
not be counted. In this regard, we note that the Union has estab-
lished, without reliance on these cards, that at least 13 unit employ-
ees out of a unit of 19, a clear majority, had signed authorization
cards.
Finally, the judge, in his discussion of the Union’s card majority,
failed to mention card signer McClain. We find this omission harm-
less error because as a statutory supervisor, McClain would not be
included in the unit and her authorization card would not be counted.
A.P.R.A. Fuel Oil Buyers Group, Inc., Prudential
Transportation, Inc. and Amer-National Heat-
ing Service, Inc. and Local 553, International
Brotherhood of Teamsters, AFL–CIO1 and
Jesus Campos and Albert Guzman and
Damaris Gomez. Cases 29–CA–15517, 29–CA–
15589, 29–CA–15446, 29–CA–15459, 29–CA–
15571, 29–CA–15518, 29–CA–15467, 29–CA–
15482, and 29–RC–7760
November 12, 1992
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 8, 1991, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed exceptions and a supporting
brief, a brief in support of the judge’s decision, and an
answering brief.2
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 briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions, as modified below, and to adopt the rec-
ommended Order as modified.4
1. The General Counsel has excepted, inter alia, to
the judge’s failure to find that the Respondent violated
the Act when management officials Vincent and Rob-
ert Latora informed employee Jesus Campos that the
Respondent would work in its manner, with or without
the Union, that Campos would be terminated when the
Union came in, and when Vincent and Robert Latora
offered Campos recall from layoff and increased vaca-
tion pay if he withdrew his unfair labor practice charge
against the Respondent. We find merit in the General
Counsel’s exceptions. Concerning the first statement, it
is well established that an employer violates Section
8(a)(1) by conveying the message to employees that it
would be futile to join or support a union. Ideal Eleva-
tor Corp., 295 NLRB 347, 351 (1989). Concerning the
second statement, it is equally well established that
promising benefits to employees in order to induce
them to withdraw charges filed with the Board violates
Section 8(a)(1). Alfa Leisure, Inc., 251 NLRB 691
(1980).5
2. In view of the Respondent’s numerous violations
of the Act, including the additional findings above, we
agree with the judge’s recommendation that a Gissel6
bargaining order is warranted.7 As of December 31,
1990, the Union enjoyed the support of a majority of
the Respondent’s employees.8 Shortly after the cards
were signed, the Respondent embarked on a campaign
to destroy the support the Union enjoyed among the
Respondent’s employees. As set forth above and in the
findings of the judge that we adopt, the Respondent:
(1) illegally discharged 6 unit employees in a unit of
19 within 5 weeks of first learning of the union cam-
paign; (2) threatened employees with a plant shutdown
if the Union came in; (3) threatened to discharge em-
481A.P.R.A. FUEL OIL
9 See, e.g., NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980);
Highland Plastics, 256 NLRB 146, 147 (1981).
10 See Koons Ford of Annapolis, 282 NLRB 506, 508 (1986),
enfd. mem. 833 F.2d 310 (4th Cir. 1987), cert. denied 485 U.S. 1021
(1988).
11 See Highland Plastics, supra.
12 Salvation Army Residence, 293 NLRB 944, 945 (1989), enfd.
mem. 923 F.2d 846 (2d Cir. 1990).
13 Salvation Army, supra at 945; Amazing Stores, 289 NLRB 163,
fn. 2 (1988), enfd. 887 F.2d 328, 331 (D.C. Cir. 1989).
14 Salvation Army, supra at 945.
15 Action Auto Stores, 298 NLRB 875 (1990) (quoting Indiana
Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1301–1302 (1988), enfg. 287
NLRB 796 (1987)).
ployees supporting the Union; (4) interrogated employ-
ees concerning their union sympathies; (5) promised
employees raises and vacation pay if they would aban-
don their support for the Union; (6) created the impres-
sion of surveillance; (7) coerced affidavits from em-
ployees to revoke their authorization cards; (8) con-
veyed the message that it would be futile for employ-
ees to join or support the Union; and (9) offered em-
ployees benefits in exchange for their withdrawal of
unfair labor practice charges.
These unfair labor practices, which commenced so
rapidly after the Respondent learned of the employees’
union activity on December 31, 1990, include many
examples of ‘‘hallmark violations,’’9 including some of
the most pernicious—threats of plant closure and dis-
charge, and subsequent discriminatory discharges.
These are the most flagrant forms of interference with
Section 7 rights and are more likely to destroy election
conditions for a longer period of time than are other
unfair labor practices because they tend to reinforce
the employees’ fear that they will lose their employ-
ment if union activity persists.10
In issuing the bargaining order here, we do not rely
solely on the number and nature of the unfair labor
practices that the Respondent committed. We have also
considered the fact that most of the violations were
committed by individuals at the top of the management
hierarchy—the great majority by Vincent and Robert
Latora, president of Prudential Transportation, Inc. and
general manager of APRA, Prudential, and Amer-Na-
tional Heating Service, Inc., respectively. Further, we
have considered the small size of the unit involved.
Thus, the judge found that at the time the Respondent
learned of the employees’ union activity, there were 19
persons in the unit. Given the entirety of the cir-
cumstances here, we conclude a bargaining order is
fully warranted.
The Respondent argues, however, that the judge
erred in rejecting its Exhibit 9, a chart showing em-
ployee turnover. It contends that the Board should con-
sider whether substantial turnover of employees in the
bargaining unit has sufficiently cured the effect of any
employer misconduct and allows for the holding of a
fair election. Although, contrary to the judge, we admit
Respondent’s Exhibit 9, we note that the Board has
specifically held that ‘‘the validity of a bargaining
order depends on an evaluation of the situation as of
the time the unfair practices were committed . . . .’’11
Thus, ‘‘the evidence the Respondent proffers regarding
changes of this nature [i.e., a change in the composi-
tion of the unit] . . . [is] irrelevant . . . when assess-
ing the propriety of issuing a Gissel bargaining order
[citations omitted].’’12
Even assuming the relevance of the evidence of
turnover that the Respondent relies on, we find this
evidence would not remove the basis for issuing a bar-
gaining order for the following reasons. First, we note
that most of the misconduct in this case was commit-
ted by the Respondent’s highest officials, who are still
in charge of the Respondent’s operations, and the
breadth of their unfair labor practices shows that the
Respondent, through these officials, is deeply commit-
ted to opposing the Union without regard to the law-
fulness of its means and is not likely to retreat from
that strategy.13 Their conduct indicates the substantial
likelihood that they will renew their unlawful tactics
among current or future employees to keep out the
Union or any other labor organization as an employee
bargaining representative. Moreover, the Latora broth-
ers’ continued presence ‘‘can serve only to reinforce in
the minds of the employees the lingering effects of the
Respondent’s violations.’’14 In addition, we again note
that the Respondent’s violations were ‘‘numerous and
pervasive in nature and that many of them were ‘hall-
mark’ violations, including threats of discharge and nu-
merous threats of plant closure, which are ‘among the
most flagrant’ of unfair labor practices.’’15 For all the
above reasons, we agree with the judge that a Gissel
bargaining order is warranted here.
3. The judge found that the unfair labor practices al-
leged as objectionable conduct also warranted setting
aside the election in the consolidated representation
case. Because he had set aside the election, the judge
also recommended that the representation proceeding
be dismissed. Contrary to the judge, although we agree
that a Gissel bargaining order is warranted, we do not
agree that the representation proceeding should there-
fore be dismissed.
We adopt the judge’s recommendation to overrule
the challenges to the ballots of employees Campos,
Medina, Benavides, and Alberto Guzman. We further
agree with the judge that challenges to the ballots of
Muniz and Gomez should be overruled, but for the fol-
lowing reason. We find that Muniz and Gomez are
dual-function employees because they are regularly
employed for sufficient periods of time to demonstrate
that they have a substantial interest in the unit’s wages,
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 See Oxford Chemicals, 286 NLRB 187 (1987).
17 We note that the judge did not recommend any disposition of
the challenges to the ballots of Novillo and Torres. The judge, how-
ever, found Novillo to be an ‘‘admitted supervisor.’’ The judge also
noted Torres’ testimony, which is uncontradicted, that he possesses
the authority to hire and fire employees. On the basis of that testi-
mony, we find that Torres is a supervisor within the meaning of Sec.
2(11) of the Act. In light of the finding that Novillo and Torres are
both statutory supervisors, they are not properly included in the unit
and we sustain the challenges to their ballots.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
hours, and conditions of employment.16 In this regard,
we note that Muniz, whom the judge found to be a
credible witness, testified that, while employed by the
Respondent, she spent approximately 35–40 percent of
her time dispatching oil deliveries and another 10–15
percent of her time dispatching service calls. Similarly,
Gomez, whom the judge also found to be a credible
witness, testified that while employed by the Respond-
ent, she spent approximately 40 percent of her time
operating the dispatch radio for both service and deliv-
ery calls. Clearly, Muniz and Gomez, regularly em-
ployed as dispatchers, have a substantial interest in the
unit’s wages, hours, and conditions of employment and
are properly included in the unit.17
We find that the overruled challenged ballots should
be opened and counted. If, on the basis of these bal-
lots, the Petitioner wins the election, it is entitled to a
certification of representative. This certification of rep-
resentation shall be in addition to our bargaining order.
See Eddyleon Chocolate Co., 301 NLRB 887 (1991).
Accordingly, we shall remand Case 29–RC–7760 to
the Regional Director.
AMENDED CONCLUSIONS OF LAW
Add the following to paragraph 4.
‘‘(j) Conveying the message to employees that it
would be futile for them to join or support the Union.
‘‘(k) Promising employees benefits to induce them
to withdraw charges filed with the Board.’’
ORDER
The Respondent, A.P.R.A. Fuel Oil Buyers Group,
Inc., Prudential Transportation, Inc. and Amer-National
Heating Service, Inc., Brooklyn, New York, its offi-
cers, agents, successors and assigns, shall
1. Cease and desist from
(a) Interrogating its employees regarding the
Union’s organizational campaign.
(b) Interrogating its employees about their union
sympathies and the union activities of their fellow em-
ployees.
(c) Threatening to fire its employees for failing to
disclose their union activities.
(d) Offering to give raises and additional vacation
pay to its employees if they would withdraw their sup-
port for the Union.
(e) Directing and assisting its employees to sign an
affidavit to withdraw support from the Union.
(f) Threatening to cease operating the Company if
the Union is certified as the employees’ representative.
(g) Offering to reinstate an employee to his former
job if he votes against the Union in the Board election.
(h) Interrogating its employees about the leaders of
the union campaign among the employees.
(i) Discharging its employees because of their mem-
bership in, and activities on behalf of, the Union.
(j) Creating an impression among its employees that
their union activities were under surveillance.
(k) Conveying the message to employees that it
would be futile for employees to join or support the
Union.
(l) Promising employees benefits to induce them to
withdraw charges filed with the Board.
(m) Refusing to recognize and, on request, bargain
with the Union in the following appropriate unit:
All full-time and regular part-time drivers, serv-
icemen, dispatchers and mechanics employed by
the Respondent at its Brooklyn, New York loca-
tion, excluding all clerical employees, managers,
guards and supervisors as defined in the Act.
(n) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their Sec-
tion 7 rights
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Muniz, Gomez, Campos, Medina,
Benavides and Alberto Guzman immediate reinstate-
ment to their former positions of employment or, if
those positions are no longer available, to substantially
similar positions without prejudice to their seniority or
other rights and privileges and make them whole for
the loss they suffered as a result of the discrimination
in the manner set forth in the remedy section.
(b) Expunge from its files any reference to these ter-
minations and notify these employees in writing that
this has been done and that the evidence of this unlaw-
ful activity will not be used as a basis for future ac-
tions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination or copying, all
records and documents necessary to analyze and deter-
mine the amount of backpay owed to Muniz, Gomez,
Medina, Campos, Benavides, and Alberto Guzman.
(d) Recognize and, on request, bargain with the
Union in the appropriate unit set forth above.
(e) Post at its facility in Brooklyn, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’18 Cop-
483A.P.R.A. FUEL OIL
ies of the notice on forms provided by the Regional
Director for Region 29, after being signed by Respond-
ent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered,
defaced or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the challenges to the
ballots of Vasillios Zarkos, Pedro Guzman, Pedro
Santana, Eduardo Torres, Patricio Novillo, and Angel
Marquez are sustained, and that the challenges to the
ballots of the following employees are overruled: Luz
Muniz, Damaris Gomez, Jesus Campos, Ismael Me-
dina, Victor Benavides, and Alberto Guzman, and
Ramon Lajara.
IT IS FURTHER ORDERED that Case 29–RC–7760 is
severed from Cases 29–CA–15517, 29–CA–15589, 29–
CA–15518, 29–CA–15446, 29–CA–15459, 29–CA–
15571, 29–CA–15467, 29–CA–15482, and that it is re-
manded to the Regional Director for Region 29 for ac-
tion consistent with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 29 shall, within 10 days from the date of this de-
cision, open and count the ballots of Luz Muniz,
Damaris Gomez, Jesus Campos, Ismael Medina, Victor
Benavides, Alberto Guzman, and Ramon Lajara and
that he prepare and serve on the parties a revised tally.
If the final revised tally in this proceeding reveals
that the Petitioner has received a majority of the valid
ballots cast, the Regional Director shall issue a certifi-
cation of representative. If, however, the revised tally
shows that the Petitioner has not received a majority
of the valid ballots cast, the Regional Director shall set
aside the election, dismiss the petition, and vacate the
proceedings in Case 29–RC–7760.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate our employees regarding
the organizational campaign of Local 553, International
Brotherhood of Teamsters, AFL–CIO.
WE WILL NOT interrogate our employees about their
union sympathies and the union activities of their fel-
low employees.
WE WILL NOT threaten to fire our employees for
failing to disclose their union activities.
WE WILL NOT offer to give raises and additional va-
cation pay to our employees if they would withdraw
their support for the Union.
WE WILL NOT direct and assist our employees to
sign affidavits to withdraw their support from the
Union.
WE WILL NOT threaten to cease operating the com-
pany if the Union is certified as the employees’ rep-
resentative.
WE WILL NOT offer to reinstate an employee to his
former job if he votes against the Union in the Board
election.
WE WILL NOT interrogate our employees about the
leaders of the union campaign among the employees.
WE WILL NOT discharge our employees because of
their membership in, and activities on behalf of, the
Union.
WE WILL NOT create an impression among our em-
ployees that we are engaging in surveillance of their
union activities.
WE WILL NOT convey the message to our employees
that it would be futile for them to join or support the
Union.
WE WILL NOT promise employees benefits to induce
them to withdraw charges filed with the Board.
WE WILL NOT refuse to recognize and, on request,
bargain with the Union in the unit described below.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their Section 7 rights.
WE WILL recognize and, on request, bargain with the
Union in the following appropriate unit:
All full-time and regular part-time drivers, serv-
icemen, dispatchers and mechanics employed by
us at our Brooklyn, New York location, excluding
all clerical employees, managers, guards and su-
pervisors as defined in the Act.
WE WILL make whole Luz Muniz, Damaris Gomez,
Jesus Campos, Ismael Medina, Victor Benavides, and
Albert Guzman, with interest, for any loss of earnings
they may have suffered as a result of our discrimina-
tion against them, and we will offer them full and im-
mediate reinstatement to their former jobs or, if those
positions no longer exist, to substantially equivalent
positions without prejudice to their seniority or other
rights and privileges.
WE WILL expunge from our files any reference to
the discharges of Muniz, Gomez, Campos, Medina,
Benavides, and Guzman, and will notify them, in writ-
ing, that this had been done and that evidence of this
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1991. 2 Gissel Packing Co., 395 NLRB 575 (1969).
unlawful action will not be used as a basis for future
personnel action against them.
A.P.R.A. FUEL OIL BUYERS GROUP,
INC., PRUDENTIAL TRANSPORTATION,
INC., AND AMER-NATIONAL HEATING
SERVICE, INC.
Craig Cohen, Esq. and Saundra Rattner, Esq., for the Gen-
eral Counsel.
H. Elliot Wales, Esq. and Lionel Marks, Esq., for the Re-
spondents.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in New York, New York, from August 141
through August 21, 1991. Consolidated complaints and no-
tices of hearing issued on March 11 and 18 and May 16 and
28 based on unfair labor practice charges filed by Local 553,
International Brotherhood of Teamsters, AFL–CIO (the
Union), and Jesus Campos, Albert Guzman, and Damaris
Gomez between January 8 and March 21. On July 18, the
Regional Director for Region 29 issued a Supplemental Deci-
sion on objections and challenges, order consolidating cases,
and notice of hearing. This order consolidated the above-
mentioned complaints with challenges and objections filed by
the Union. The petition was filed by the Union on December
26, 1990; at an election conducted on March 6, the Union
received 5 votes, 7 votes were cast against the Union, and
there were 13 challenged ballots. The Union filed timely ob-
jections on March 13. The Regional Director’s order directed
that I hear and decide the Union’s Objections 1 through 11
as they appear to involve the same facts as the unfair labor
practices alleged in the consolidated complaint. The order
also directs that I hear and rule on challenges to the follow-
ing employees, who are also named in the consolidated com-
plaint as alleged discriminatees: Vasillios Zarkns, Luz
Muniz, Victor Benavides, Albert Guzman, Jesus Campos,
Damaris Gomez, Pedro Santana, Pedro Guzman, and Jamael
Medina.
The consolidated complaint alleges numerous violations of
Section 8(a)(1) of the Act by Vincent Latora, president of
Prudential Transportation, Inc. (Prudential), Robert Latora,
general manager of A.P.R.A. Fuel Buyers Group, Inc.
(APRA), Prudential and Amer-National Heating Service, Inc.
(Amer-National and, at times, collectively called Respondent
or Respondents), and Susana Wong, president of APRA. This
activity is alleged to include threats, interrogation, the cre-
ation of an impression of surveillance, the promise and grant-
ing of benefits in exchange for voting against the Union or
withdrawing their support for the Union, and conditioning an
employee’s recall on the employee withdrawing an unfair
labor practice charge. The consolidated complaint also al-
leges the nine above individuals and Efraim Rosarin as dis-
criminatees; it is alleged that Campos was discriminatorily
laid off, while the others were discharged, in violation of
Section 8(a)(3) of the Act. Finally, the consolidated com-
plaint alleges that all this unlawful activity warrants a Gissel2
bargaining order.
On the entire record, including briefs received and my ob-
servation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
APRA, Prudential, and Amer-National are each New York
State corporations located at a common facility in Brooklyn,
New York (the facility). APRA is engaged in the cooperative
purchase of heating fuel oil for its members; Prudential is en-
gaged in the transportation and delivery of fuel oil to
APRA’s members and to other customers; and Amer-Na-
tional is engaged in servicing oil and gas burners for APRA
members and other customers. During the past year, APRA
derived gross revenue in excess of $100,000 and, during the
same period purchased and received at its facility goods, ma-
terials, and fuel oil valued in excess of $10,000 from other
enterprises located within the State of New York, each of
which other enterprises had received said goods, materials,
and fuel oil valued in excess of $10,000, directly from points
outside the State of New York. During the past year, Pruden-
tial derived gross revenue of approximately $300,000 and
during the same period, purchased and received at its facility
goods, supplies, materials, and repair parts valued at approxi-
mately $20,000 from other enterprises located within the
State of New York, each of which other enterprises had re-
ceived said goods, supplies, materials, and repair parts valued
at approximately $10,000 directly from points outside the
State of New York. During the past year, Amer-National de-
rived gross revenue of approximately $400,000 and during
the same period purchased and received at its facility goods,
materials, and oil and gas burner parts valued at approxi-
mately $20,000 from other enterprises located within the
State of New York, each of which other enterprises had re-
ceived said goods, materials, and oil and gas burner parts,
valued at approximately $20,000 directly from points outside
the State of New York. Respondents are each employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of The Act.
III. THE FACTS
Respondents stipulated that for the purpose of this pro-
ceeding, APRA, Prudential and Amer-National constitute a
single integrated business enterprise and a single-employer
within the meaning of the Act. On December 26, 1990, the
Union filed a petition to represent certain of Respondent’s
employees; on February 6, the Regional Director issued a
Decision and Direction of Election in which he found appro-
priate a unit of all full-time and part-time drivers, service-
men, dispatchers, and mechanics employed by the Respond-
ent, but excluding all other employees, managers, guards and
supervisors as defined in the Act. As stated above, at the
485A.P.R.A. FUEL OIL
election conducted on March 6, the challenges before me
were found to be determinative; the following timely objec-
tions were also filed by the Union:
1. The Employer interrogated employees regarding
their knowledge of Local 553’s organizing efforts, and
their support for and activities on behalf of Local 553.
2. The Employer threatened employees with dis-
charge and discontinuance of operations as a con-
sequence of Local 553’s organizing efforts.
3. The Employer created the impression that the ac-
tivities of employees in connection with Local 553
were being kept under surveillance.
4. The Employer promised employees improved
terms and conditions of employment, including in-
creased wages and vacation time, in an effort to dis-
suade employees from supporting Local 553.
5. The Employer granted wage increases to employ-
ees in an effort to dissuade employees from supporting
Local 558.
6. The Employer impliedly promised employees in-
creased benefits in an effort to dissuade their support
for Local 553 by soliciting their complaints and griev-
ances.
7. The Employer initiated and circulated among their
employees affidavits for them to execute which con-
tained disclaimers of interest of Local 553 and revoca-
tions of authorization for Local 553 to act as the em-
ployee’s collective bargaining representative.
8. The Employer coerced the employees into signing
the affidavits described above in paragraph 7 and
threatened the employees with discharge if they refused
to sign the affidavits.
9. The Employer promised employees increased
wages and benefits if they would refrain from filing un-
fair labor practice charges and giving testimony to the
Board.
10. The Employer provided employee Lucy Muniz
with closer supervision than she was previously subject
to because of her perceived support for and assistance
to Local 553.
11. The Employer engaged in a massive discharge
campaign to eliminate perceived union supporters from
the bargaining unit and to discourage bargaining unit
employees who were not discharged from supporting
Local 553.
As stated above, the Regional Director found that as these
objections mirror the unfair labor practices alleged herein, he
directed that I hear and decide these objections as well. To-
gether with these objections and challenges are the numerous
8(a)(1) allegations, the 10 alleged discriminatees, and a re-
quest for a Gissel bargaining order remedy. As a defense to
this request for a bargaining order and one of the 8(a)(3) al-
legations, Respondent alleges that one of the alleged
discriminatees, Vasillios Zarkos, who allegedly solicited
some of the union authorization cards, was a supervisor with-
in the meaning of the Act and that many of the Union’s
cards are therefor tainted. General Counsel defends that
while Zarkos was a supervisor during a prior period of em-
ployment with Respondent (May 1987 through June 1988),
he was not a supervisor during the period of employment
that preceded the events in question herein.
A. The Unit
By a Decision and Direction of Election dated February 6,
the Regional Director found that the following of Respond-
ents employees constitute an appropriate unit:
Included: All full-time and part-time drivers, service-
men, dispatchers and mechanics employed by the Em-
ployers at their Brooklyn, New York facility.
Excluded: All other employees, notice clerical em-
ployees, managers, guards and supervisors as defined in
the Act.
The complaint alleges that the above constitutes a unit ap-
propriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act; Respondent simply de-
nied this allegation. As the Board stated in Kline’s Potato
Chips, 274 NLRB 628 at 629:
It is well settled that in the absence of newly discov-
ered and previously unavailable evidence or special cir-
cumstances, a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues that were or could have been litigated in the
prior representation proceeding.
See also Venture Packaging, 294 NLRB 544 (1989), Re-
spondent either could have, or did, litigate the unit issue in
the prior representation matter. It denied the appropriate unit
allegation herein without alleging any newly discovered and
previously unavailable evidence. I therefore find that the unit
alleged in the complaint and found appropriate by the Re-
gional Director in his Decision and Direction of Election, is
an appropriate unit herein.
B. The Organizing Campaign
Zarkos (who is usually called Billy by his fellow workers)
testified that in about the summer and fall of 1990 he spoke
with many of Respondent’s English-speaking employees
about the need for a union; they talked about the long hours
and what they considered to be inadequate pay. Shortly
thereafter, Zarkos learned that one of Respondent’s drivers
had met William Ness, the Union’s president and business
agent while at an oil terminal; the driver gave Ness’ tele-
phone number to Zarkos who called him, in about October
1990. Ness asked him if Respondent’s employees were inter-
ested in joining the Union and he said that they were. Ness
asked how many employees there were and Zarkos said
about 20. Ness asked Zarkos to find a place where he could
meet with the employees away from Respondent’s facility
and Zarkos chose a bakery in Brooklyn where they met on
November 15, 1990. Zarkos informed the English-speaking
employees of the meeting; Muniz informed the Spanish-
speaking employees.
Ness came to the meeting with two of the Union’s busi-
ness agents and a Spanish interpreter. In addition to Zarkos
and Muniz, the following employees attended this meeting:
Nelson Zuleto, Heriberto Echevarria, Alberto Guzman, Pedro
Guzman, Jesus Campos, Bernardo Campos, Angel Marquez,
and Pedro Santana. Ness told the employees of the contracts
that it has with other employers and the benefits that it hoped
to achieve for the employees. During this meeting, the inter-
preter translated Ness’ speech into Spanish. Ness also asked
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Muniz testified that Santana attended the November 15, 1990
union meeting and identified his union authorization card, dated No-
vember 15, 1990, as having been signed at that time. Santana testi-
fied that he actually signed the card on November 16, 1990; Muniz
gave him the card on that day at Respondent’s facility and he signed
it ‘‘because we might benefit.’’
4 Only two oil drivers testified. Campos returned to Respondent’s
employ in August 1990; in December he received a raise to $500
a week for 6 days, $583 for 7 days. Medina began working for Re-
spondent in September 1990 at $290 a week. In December 1990 he
received an increase to $450.
if there were any supervisors present and the answer was no.
Ness (and the interpreter) then explained about how union
authorization cards work. The above-mentioned 10 employ-
ees signed the cards; Muniz looked over each of them and
gave them to Ness.3 The cards state (in English): ‘‘I hereby
authorize [the union] to be my exclusive representative for
purposes of collective bargaining.’’ Zuleta was called by Re-
spondent as a witness. He testified that when the union rep-
resentative handed him a card to sign he asked Zarkos what
he should do and Zarkos told him to fill out the information
on the card and sign it. At one point, he testified that he
signed the card voluntarily; at another point, he testified that
he did not sign the card because he wanted to join the
Union. Rather: ‘‘He was new working there so he was afraid
if he didn’t signed he would be fired’’—by Zarkos. After
these two employees executed the authorization cards,
Muniz, Alberto, and Pedro Guzman asked Ness for addi-
tional cards. We gave them cards and told them that cards
were not to be signed on Respondent’s time or premises and
that employees should not be pressured to sign the cards.
Between the time of this meeting, and the filing of the pe-
tition, December 26, 1990, Ness received another 10 signed
authorization cards. Muniz testified that she asked Ness for
additional cards because she knew of employees who wanted
to sign cards, but could not attend the meeting because they
were working. Within the next few days she spoke to a num-
ber of employees at work who had not been to the meeting.
In this manner within the next day or two, she obtained
signed union authorization cards from Santos Santana,
Mohamed Kwara, Edgar Romaro, Gomez, Antonio Coronel,
Ramon Lajara, Benavides, Abdul Karim Atrach, and Ishmael
Medina. She testified that Pedro Guzman obtained an author-
ization card from Rosario; Rosario testified that Muniz gave
him the union authorization card he signed on November 16,
1990. In addition, Muniz obtained a signed authorization
card from Margie McClain, an admitted supervisor for Amer-
National. She also asked Patrick Novillo, an admitted super-
visor, to sign a card, but he refused. Other than these above-
named individuals, the only other employees employed by
Respondents on about November 15, 1990, were Jose Monta,
Wilson Cuesta, and Emily Williams. Medina testified that he
first spoke to Zarkos about the Union in about September
1990: ‘‘Because we saw so much abuse.’’ They decided to
wait until the wintertime, Respondent’s busiest period, before
speaking to the Union. He signed a union authorization card
on November 16, 1990, at Respondent’s facility; Muniz gave
it to him. He knew of the benefits the Union was offering,
so he signed. Benavides also signed a union card given him
by Muniz at Respondent’s facility on that day. Kwara testi-
fied that Zarkos gave him the union authorization card to
sign and Muniz and Novillo told him that it would be good
to sign it.
Novillo initially testified that he asked Atrach, Romaro,
and Coronel to sign cards for the Union; subsequently, he
appeared to modify this by testifying that when these em-
ployees asked him if he would fire them if they didn’t sign
a union card, he told them ‘‘it’s okay . . . to sign the card.’’
He testified that he never signed a union card. Muniz gave
him a card to sign between Thanksgiving and Christmas; he
told her that he would like to sign the card later that day or
the next day because he was too busy. He asked to keep the
card which he would return to her shortly, signed. She re-
fused to let him keep the card, saying that she didn’t have
any more cards and she needed them to give to the other em-
ployees. Zarkos testified that he neither made any promises
to the employees in exchange for signing cards for the
Union, nor did he threaten them with consequences for refus-
ing to sign union cards. All he told employees he spoke to
was: ‘‘The union has benefits, they have a good salary.
That’s all.’’
C. Zarkos’ Supervisory Status
Zarkos’ supervisory status is relevant in two areas: his al-
legedly discriminatory discharge and whether his involve-
ment in the union campaign tainted enough cards to dissipate
the Union’s majority status. Zarkos had two periods of em-
ployment with Respondent, separated by about a year. He
testified that he began working for Prudential in about 1985
delivering oil; in about 1987, when Vincent Latora (Vincent),
the president of Prudential and his brother, Robert Latora
(Robert), the general manager of Respondents (both of whom
basically ran Respondents), went to jail Zarkos was put in
charge of the garage. He could hire, but not fire, people and
he dispatched the drivers and mechanics. The parties stipu-
lated that during this portion of his employment with Re-
spondent he was a supervisor within the meaning of the Act.
In about June 1988, Linda Wong (also called Susana Wong)
fired Zarkos. In November 1989, shortly after being released
from prison, Robert located Zarkos and rehired him. He testi-
fied that Robert told him that he would be a truckdriver at
$550 a week; instead, he became the dispatcher at $500 a
week.4 As dispatcher, his job was to assign the deliveries
(through the delivery tickets) to the drivers in the most effi-
cient way. During this second period of employment with
Respondent, which lasted until January 1, he could not, and
did not, hire employees. On one occasion, he fired Medina
and Vincent rehired him the same day and told Zarkos that
he wasn’t supposed to fire anybody. He testified that ‘‘this
time’’ he thought that he had the authority to fire Medina be-
cause he didn’t make his deliveries. It was his job to see that
the drivers made their deliveries properly; if they didn’t, he
told them so. If that was not effective, he told Vincent or
Robert. Shortly before Zarkos was fired, he had a problem
with the only driver for evening deliveries, Angel Marquez,
calling in sick for two straight Mondays; Zarkos told him to
call him before coming in next and he would tell him if he
had deliveries for him to make. In an affidavit given to the
board, he stated: ‘‘I did reprimand employees, but all other
authority that I used to have was given back to Vinnie and
Bob.’’
Robert testified that when he and Vincent were in prison
Zarkos was managing Prudential; he had the power to hire
487A.P.R.A. FUEL OIL
and fire employees and to see ‘‘that the company worked the
way it should have worked . . . He was in charge of the en-
tire operation.’’ While they were away, Wong, Vincent’s
wife, fired Zarkos. When Robert and Vincent returned, they
rehired him for the same position he had prior to being
fired—managing the Prudential operation, and he had the
same powers he always had: hiring and firing drivers, pur-
chasing and selling vehicles and parts, and seeing that the
trucks were properly maintained. Robert testified that Vin-
cent is the president of Prudential and does the dispatching
for the oil drivers as well.
A number of other witnesses also testified regarding
Zarkos’ employment status. Campos, who began working for
Respondent in May 1988 and left a month later, returned in
December 1988 and again left in April 1989 (on both occa-
sions due to the lack of a required license), testified that dur-
ing his final period of employment with Respondent he
worked from May 1990 through February 4. As to whether
Zarkos was a supervisor, he testified: ‘‘I don’t know if he
was a supervisor or not. He assigned us the deliveries.’’ He
testified that Zarkos did not have the title of manager. In an
affidavit given to the Board, Campos stated:
I believe the title of Zarkos was manager. I never saw
him hiring or firing any employee. I heard that he had
this authority. I never saw him discipline, promote,
transfer, layoff, recall or reprimand any employee.
Medina began working for Respondent on September 18,
1990; about 2 weeks later, he and Zarkos had a disagreement
over a nondelivery and Zarkos told him that he was fired.
Two days later, Medina called the facility to arrange to pick
up his check and he spoke to Vincent, who asked him why
he wasn’t at work. Medina told him that Zarkos had fired
him and Vincent said that Zarkos didn’t have the authority
to fire him and he returned to work. He testified that he
worked ‘‘under Vinnie’s supervision.’’ As to whether Zarkos
(Billy) was his supervisor, he testified: ‘‘Billy’s not my su-
pervisor. Just my dispatcher. He just gave me my tickets,
that’s all.’’ Miguel Marquez testified that in December 1990
Zarkos hired him to paint a truck for Respondent. Wilson
Cuestra, who is employed by Respondent, testified that he
was hired by Zarkos on October 1, 1990; he was interviewed
by Zarkos with Muniz as the interpreter. Zarkos asked him
about his experience and Cuestra said that he was a welder.
Zarkos said that only cleaning work was available, told him
the pay, the days and hours of work, and told him to begin
the next day, which he did. Although he was employed as
a cleaner, he worked on the trucks on several occasions at
Zarkos’ direction. He testified that Zarkos gave out delivery
tickets to the oil drivers and spent most of his time on the
radio talking to the drivers about their deliveries. Zuleta testi-
fied that he was interviewed, and hired, by Zarkos.
Novillo, the manager for Amer-National, testified that dur-
ing the period prior to Zarkos’ discharge, he was the man-
ager for the oil drivers; he had the power to hire and fire
the drivers, although the only individual who he could spe-
cifically remember was Medina He also decides on the rate
of pay, work schedule, and overtime for the oil drivers. He
testified that Vinnie prepared the delivery tickets for the oil
drivers, but Zarkos made adjustments in these deliveries the
following day if he saw that certain drivers were too busy.
Eduardo Torres, who replaced Zarkos beginning January 2,
and is still employed by Respondent, testified that as man-
ager for Respondent he hires and fires employees and super-
vises the work of the drivers. Prior to February 1990 he
worked for Respondent under Zarkos; Zarkos was the general
manager for Respondent and he managed the operation and
the garage. He hired and fired employees. Cesar Padilla was
employed by Respondent from May 1987 through July 1990.
He testified that during this entire period (except, of course,
during the period when he was not employed by Respondent)
Zarkos was the manager; while Torres was there, Torres was
the supervisor under Zarkos. Vincent prepared the delivery
tickets for the following day; Zarkos did not do dispatching.
Steve Chung, chief accountant for Respondent, testified that
in August 1990 he prepared job descriptions for certain posi-
tions at Respondent. In this regard, he interviewed the em-
ployees and ‘‘asked them what kind of job they have been
doing.’’ He then prepared the job description and gave a
copy to each of the employees involved. The job description
for Zarkos is dated August 21, 1990, and states:
As the transportation manager, the above employee
Zarkos is responsible to:
1. Open up the garage and office every morning and
keep the key in a safe place.
2. Hire and discharge drivers and oversee their work
in a proper manner to protect the company’s interest.
3. Negotiate salaries with drivers and make appro-
priate periodic adjustments.
4. Prepare work schedules and organize days-
off/vacations for drivers.
5. Gather payroll information such as who has
worked how many days and furnish it to the book-
keeper on Monday for payroll preparation.
6. Assign trucks to individual drivers and organize
their delivery routes. Every night, Vincent Latora will
divide the delivery tickets, write down the names of the
drivers on them according to their delivery routes and
leave them on the counter for the drivers to pick up the
next morning.
7. Order all necessary parts and supplies for the
trucks.
8. Oversee operating conditions of the trucks and co-
ordinate their repair schedules.
9. Hire and supervise truck mechanics.
Amarilho Rosa testified that he was interviewed by Zarkos
and a Spanish-speaking woman (presumably Muniz) in Octo-
ber 1990 for a cleaning job. Zarkos hired him and directed
his work as well. Respondent’s payroll records state that
Rosa was employed by Amer-National.
D. Respondent’s Knowledge of the Union Campaign
As stated above, the Union filed its petition on December
26, 1990; the supplemental decision incorrectly states that the
petition was filed on December 16, 1990. A copy of the peti-
tion with the accompanying information was sent to Re-
spondent by certified mail on December 26, 1990. The return
receipt states that it was received by Gomez on December
31, 1990. Gomez testified that she signed for the letter (a big
yellow envelope) on that day, showed it to Muniz (they were
expecting it) and then placed the letter on the counter where
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all the mail is placed. Later that day she saw Robert pick up
this mail and take it to the back of the office. Gomez, who
was Respondent’s receptionist at the time, also testified that
at the end of December 1990 she handled many calls from
Ariella Bernstein (the Board agent handling the representa-
tion case) for Robert and he spoke to her during this period.
Muniz testified in a similar fashion that Gomez signed for
the letter because Muniz was busy, showed it to Muniz, and
placed it on the counter ‘‘until Bob Latora pick it up.’’ It
is not clear from this testimony whether Muniz actually saw
Robert pick up the letter. Medina testified that on the after-
noon of December 31, 1990, he saw Vincent with a letter in
his hand; it was a yellow envelope about 11-by-14 inches.
As stated above, Ness instructed the employees not to so-
licit union authorization cards during work time at Respond-
ent’s facility; Muniz, obviously, did not follow these instruc-
tions. Benavides, Alberto Guzman, and Rosario each testified
that they were told not to talk to Robert or Vincent about
the Union. Santana testified that on about November 17,
1990, he told Novillo that he and everybody else had signed
a union card and asked Novillo if he wanted to sign a union
card; Novillo declined to do so, but said that he wouldn’t
‘‘rat’’ on them. Novillo testified that he spoke to employees
about the Union during this period, but he never told Robert
or Vincent that the employees were signing for, or were in-
terested in the Union and, as far as he knows, in November
and December 1990 Robert and Vincent were not aware of
this union activity.
Robert testified that he did not receive the Board’s cer-
tified letter until January 2; on that day he found the enve-
lope and the enclosed letter in the photostat machine in Re-
spondent’s office. Shortly after finding this letter in this man-
ner, Wong questioned Muniz (in Robert’s presence) whether
she had received and opened the envelope; she refused to an-
swer. Robert testified further that earlier on that same day he
had received phone calls from Bernstein asking questions
about Respondent. He didn’t know who she was or who she
represented; she said that she represented the government,
but her questions were ‘‘very ungovernment like.’’ Later that
day when he found the letter in the photostat machine he re-
alized that she was a representative of the Board.
E. The 8(a)(1) Allegations
As stated above, the consolidated complaints contain too
many 8(a)(1) allegations to recite verbatim herein; many of
them correlate with the objections filed by the Union that are
also before me. All of these allegations except one involve
Vincent and Robert; the remaining one involves Wong. The
only allegations that will be discussed herein are those that
are supported by testimony.
Muniz testified that at about lunchtime on January 2,
Wong called her into the office and asked her what was
going on with the Union. She also asked about the union
meeting; Muniz denied everything. Wong then called Vincent
into the office and said: ‘‘She doesn’t want to cooperate.’’
Vincent said that Novillo and Marquez had spoken to him
about the Union and they knew what was going on. Vincent
then wrote down names of employees whom he said attended
the union meeting. Neither Vincent nor Wong testified. I find
that this interrogation and impression of surveillance violated
Section 8(a)(1) of the Act.
Zarkos testified that on the evening of January 1, Vincent
and Robert came to see him and asked: ‘‘Who started this
mess?’’ When he asked what mess, they asked: ‘‘Who called
the union?’’ Zarkos denied any knowledge. They then asked
him how much money he wanted to withdraw from the
Union. Zarkos refused this offer. This testimony is undenied.
If Zarkos is found to be an employee herein, I find that this
violates Section 8(a)(1) of the Act.
Campos testified that on December 31, 1990, he received
a telephone call from Vincent at about 11 p.m.; this was the
first time that Vincent had called his home. Vincent said that
two people had told him that they had been at the union
meeting and had asked forgiveness and he had forgiven
them. Vincent told Campos that he should tell him every-
thing about the Union: who called the Union, who signed the
cards, and who attended the meeting. He said that if Campos
didn’t tell him he would fire him and that he should think
it over since he had a family. I find that this violates Section
8(a)(1) of the Act.
Campos testified further that on January 3, Robert called
him into the office; Vincent, who was also present, did most
of the talking. They asked who called the Union and if
Muniz was the one; he should tell them everything. They
wanted him to be the third person to beg forgiveness because
he was a good worker and they didn’t want to lose him. If
the Union offered him a $1 raise, they would give him
$1.50. That he would be without a job if the Union came
in. Campos said that he didn’t know anything. Vincent said
that if he didn’t know anything, he had a paper for him to
sign. The paper was in English and Campos had difficulty
understanding it, and he asked what it was. Vincent said that
it simply said that he didn’t know anything about the Union
and that if the Union won, Respondent would shut down. He
said: ‘‘Jesus, who is against me, or who wishes to harm the
company, will be fired.’’ These statements are uncontradicted
and I find that they violate Section 8(a)(1) of the Act. The
paper and statement that Campos referred to (and Benavides
and Alberto Guzman also testified about) states:
I llll, the undersigned, an employee of Pruden-
tial Transportation, Inc. state that I have not petitioned,
nor signed any petition or card requesting Local 553-
I.B.I. AFL–CIO to represent me for purposes of collec-
tive bargaining.
If Local 553-I.B.I. AFL–CIO has filed any card with
the NLRB bearing my signature for the purpose of rep-
resenting me in support of any petition for collective
bargaining, I hereby state that my signature was ob-
tained through misrepresentation, fraud or duress by my
supervisory employee William Zarkos under threat and
implication of losing my job, and that it is not my in-
tention to have Local 553-I.B.I. AFL–CIO file a peti-
tion for collective bargaining for me, and I hereby re-
voke any such authority.
Sworn to before me
llthis day of January 1991 llllll
llllll
Notary Public
Robert testified regarding these affidavits; he testified that
Nelson Zuleta and other employees told him that Zarkos
489A.P.R.A. FUEL OIL
5 On January 8, the Union filed the initial unfair labor practice
charge alleging that Zarkos’ (as well as other) discharges violated
Sec. 8(a)(1) and (3) of the Act.
(whom Respondent alleges was a supervisor) pressured them
to sign union authorization cards. He was informed by coun-
sel that the way to attack the Union’s cards and showing of
interest was through notarized affidavits from the employees
stating that they were not interested in the Union and had
never asked the Union to represent them. On about January
4, his attorney faxed him the above affidavit and he had it
retyped and duplicated. On January 8, copies of these affida-
vits were placed in two places at the facility: for the drivers
they were placed in the front of the facility where they pick
up their delivery tickets and for the servicemen and mechan-
ics they were placed in the back where the parts are distrib-
uted. On that day he made an announcement over the loud-
speaker about the availability of these statements for employ-
ees who signed something that they didn’t agree with or had
been forced to sign a union card, and a notary was present
at the facility to verify signatures of any employee who
signed the affidavit. He never spoke to any of the employees
personally about the affidavits. The affidavits remained in
these places for the entire day. As to whether he knew who
had signed a union card, he testified:
No. No. I was told by my attorney to make sure not
to approach anybody individually so that not to give the
impression that people had to sign them or were forced
to sign them. To make sure that there was no misunder-
standing or impropriety involved. Everything had to be
100 percent above board and everything had to be done
extremely so that nothing could happen. So that the
government couldn’t twist it.’’
He testified that he never told any employee of benefits that
they would receive if the Union were not brought in.
In an affidavit that Robert gave to the Board, he states:
‘‘On January 8, 1991, waited in my office for the people to
come in. The Employees came in individually and into the
office to sign the affidavits. No one told them to enter the
office.’’ On cross-examination, he testified that he didn’t see
the employees sign these affidavits in his office, because his
office is ‘‘pretty big.’’ As to whether the notary he hired for
the day was sitting in his office that day, he testified: ‘‘She
might have been standing. I wasn’t looking at her . . . I
didn’t want to give the impression that I was watching over
her shoulder or that I was watching what the employees
did.’’ After some additional bantering by Robert, he testified
that the employees came into his office to sign the affidavits,
the notary was there to notarize their signatures and that he
was in the room at this time, as well, although he did not
see the employees sign the affidavits.
Benavides signed an identical affidavit on January 8; he
testified that on that day, Vincent called him into his office
and asked him if he had attended the union meeting, and
Benavides answered that he had not. Vincent then asked him
if he had signed a card for the Union and he said that he
did because all had signed it. Vincent then gave him the affi-
davit, said that he should sign it if he wished to continue
working for Respondent, otherwise, ‘‘I should look for a job
elsewhere.’’ The affidavit in evidence has his name typed at
the top and is notarized. He testified that it wasn’t notarized
in his presence and he doesn’t know whether his name was
on the top at the time that he signed it.
Alberto Guzman also signed an identical affidavit on Janu-
ary 8; he testified that on that day Vincent gave him the affi-
davit outside his office. He told him to sign it because he
would lose his job if—he didn’t sign it. The affidavit that
he signed which is in evidence is notarized; Guzman testified
that it was not notarized in his presence.
In cases such as this an employer may allow its employees
to exercise their Section 7 rights without violating the Act;
in this regard, an employer’s ministerial acts in assisting em-
ployees does not necessarily violate the Act. Central Wash-
ington Hospital, 279 NLRB 60 (1986). However, in the in-
stant matter, Respondent initiated and was the sole partici-
pant in the attempt to destroy the Union’s majority status.
The employees were simply told to sign, or they would lose
their jobs. In addition, the requests to sign the affidavit were
accompanied by a threat of discharge if the employees failed
to comply with the request. By these actions Respondent vio-
lated Section 8(a)(1) of the Act. Texaco, Inc., 264 NLRB
1132 (1982). The accompanying interrogation and threats to
Benavides and Albert Guzman also violate Section 8(a)(1) of
the Act.
Campos also testified in support of other allegations as
well. He testified that in mid-January he was called to Rob-
ert’s office; Robert told him that a Government agency was
going to investigate to determine whether the employees
wanted the Union and that ‘‘we should think well about it
because if the Union would win, he would shut down the
company and we would be left without a job.’’ He told
Campos that if the Union came in, it would bring in its own
drivers ‘‘and they would leave us without a job.’’ Campos
testified that during this period he informed one of the other
employees that Zarkos had won his case with the Board;5 the
following day, Vincent called him into his office and told
him that he was going to fire him for saying that Zarkos had
won his case. Vincent also told him that if the Union won
the election he would fire him anyway because he would dis-
continue his route. Campos was terminated on about January
14; the nature of this will be discussed further below together
with the other terminations. Campos testified that on March
4, 2 days before the election, Robert told him that if he voted
for Respondent, he would receive 2 weeks paid vacation, in-
stead of 1, and that he would get his job back. Robert testi-
fied that he never discussed any union matters with Campos
and told the employees that they had the right to sign or not
to sign the cards; ‘‘That it was entirely up to them.’’ For rea-
sons stated more fully below, I found Robert to be a witness
lacking credibility. I therefore credit Campos regarding the
above incidents and I find that by this activity, Respondent
violated Section 8(a)(1) of the Act.
Medina testified that in about mid-December, Vincent
asked him if he knew anything about the Union. Medina de-
nied any knowledge of the Union. Vincent said that if the
Union got in it would kick all the employees out and put its
drivers in. I find that this undenied threat and interrogation
violates Section 8(a)(1) of the Act.
Alberto Guzman testified that sometime after January 8,
Vincent called him into his office and asked him to tell him
the names of the union leaders; Guzman said that he didn’t
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
speak English well and could not understand him. Vincent
asked him why he was knifing him in the back. He testified
further that about a day later, Robert called him into the of-
fice and told him that he would shut down the business be-
cause of the problems that the Union had caused and that
Guzman could go back to his country. I find that by the
above two statements to Guzman, Respondent violated Sec-
tion 8(a)(1) of the Act.
In addition to the above, including the promise of benefits
to employees for withdrawing their support from the Union,
there is also an allegation that on about the week of January
7, Respondent, by Robert and Vincent, promised and granted
wage increases to its employees if they abandoned their sup-
port for the Union. Campos, whose final period of employ-
ment for Respondent began in August 1990, testified that at
the end of December 1990 he asked for a raise; he told Vin-
cent that he was working long hours and was entitled to
more money and overtime pay. This was the first raise he
had requested during his 1990 employment with Respondent.
He was given a raise in January; at that time, his salary was
increased by $150 and Respondent began to pay him over-
time. This increased his weekly salary by about $300 to
about $900. He was not told why he received the increase
and the overtime pay. Medina, who began working for Re-
spondent in September 1990 delivering oil, testified that
when he was hired he was told that he would be paid $450
a week, but he was only paid $290 a week. In early Decem-
ber 1990 he was increased to $450 because he was doing ad-
ditional deliveries.
Eduardo Torres, who replaced Zarkos on January 2, testi-
fied about raises; however, his testimony on this subject is
very confusing. On direct examination he testified that
Campos asked him for a raise and he gave it to him (without
specifying an amount) 2 weeks before he told Campos to
take a week off. Subsequently, he testified that Campos
asked for a raise, but he never gave it to him. On cross-ex-
amination his testimony became somewhat clearer: appar-
ently, Campos asked for a raise and when Torres informed
Campos of his layoff for 1 week, he told him that when he
returned to work he would receive the increase. because
Campos refused to return (according to Torres) he never re-
ceived the increase. Robert testified that three employees re-
ceived wage increases after the petition was filed; the two
that he named were Campos, whose salary was increased
from $583 to $650 a week and ‘‘Areberto,’’ whose salary
was increased from $500 to $600 or $650 a week. The third,
apparently, was Nelson, whom Torres referred to in his testi-
mony. Robert testified that the employees were given the in-
creases because they threatened to quit if they were not
granted.
The sole evidence in this regard involves three or four em-
ployees: Campos received a raise in about early January;
however, he requested the raise (for the first time during this
final employment period) and was given the raise without
any mention of the Union. Medina received an increase in
early December 1990, prior to the time that I find Respond-
ent learned of its employees’ union activity. He testified that
he received the increase (to the amount he had been prom-
ised months earlier) because he was taking additional deliv-
eries. Again, no mention of the Union was made to him
when he received the increase. Finally, Areberto and Nelson
Zuleta received increases, but there is no evidence regarding
these increases. It is, of course, an unfair labor practice for
an employer to grant a wage increase to its employees in the
midst of an organizing campaign where the purpose is to
convince the employees that there is no need for the Union,
that benefits are granted without the Union. In the famous
words of Justice Harlan in NLRB v. Exchange Parts Co., 375
U.S. 405 (1964), ‘‘the suggestion of a fist inside the velvet
glove.’’ The grant or promise of benefits made during an or-
ganizational campaign will be considered unlawful unless the
employer can provide an explanation, other than the organi-
zational activity, for the timing of the grant or announcement
of such benefits. Village Thrift Store, 272 NLRB 572 (1984).
The evidence establishes that 3 or 4 employees received in-
creases in a unit of about 25 employees. The two employees
who received increases who testified about it, testified that
they had requested the increases and were doing extra work
entitling them to the increases. In addition, it is clear from
the evidence described above (as well as evidence that will
be described below) that this was not an employer expert in
the art of subtlety; from about January 1, Robert and Vincent
were extremely busy making threats and promises to employ-
ees and interrogating them, all involving the union campaign.
The fact that none of these wage increases were accompanied
by a comment about the Union indicates to me that they
were as Campos and Medina saw them, deserved increases
and nothing more. For this reason, I recommend that this al-
legation, together with Objection 5, be dismissed.
F. The 8(a)(3) Allegations and the Challenges
The consolidated complaint alleges that Respondent termi-
nated 10 employees in violation of Section 8(a)(3) of the
Act. There are nine challenged voters whose eligibility must
be determined herein; the only one alleged discriminatee
whose status as a challenged voter is not an issue herein is
Rosario.
The principal actors in this matter were Robert and Vin-
cent. Vincent did not testify. While Robert was questioned
on direct examination he appeared to be knowledgeable, ar-
ticulate and, apparently, fairly credible. During questioning
on cross-examination he became a different person; to say
that he was hostile, evasive, uncooperative, sarcastic and ar-
rogant would not capture the full flavor of his testimony. For
example, prior to Robert’s testimony, there was testimony
that Robert and Vincent had been imprisoned in about 1987.
When Robert was asked about this on direct examination, he
spent four pages of—transcript principally blaming the dis-
trict attorney for this conviction before interrupted the testi-
mony. He testified as he wanted to, not in response to ques-
tions asked of him. For these reasons, I discredit his testi-
mony. One of the issues involved in the 8(a)(3) allegations
is when Respondent (Robert and Vincent) first learned of the
Union’s organizing campaign. General Counsel alleges that
they learned of it in about mid-November 1990 or, at the lat-
est, on December 31, 1990, when they received the Board’s
letter notifying them of the petition. I find that the evidence
is insufficient to establish knowledge prior to December 31,
1990. Although McClain and Novillo, admitted supervisors,
were asked to attend the meeting and sign cards, there is no
evidence that this information was conveyed to Robert or
Vincent, and I believe Novillo’s denial that he informed
them of the union solicitations. McClain did not testify. An
additional reason for finding that Respondent had no knowl-
491A.P.R.A. FUEL OIL
6 At the representation hearing on January 16, Robert testified:
Q. Who is the principal supervisor of Prudential?
A. Until recently the principal manager and supervisor was
William Zarkos. Right now the company is without such a su-
pervisor manager.
Q. So there is not a manager now?
A. Not at this moment. They’re in the process of seeking one.
edge of this union activity prior to December 31 is the pre-
cise reason for finding that it learned of the union activity
on December 31, 1990 (in addition to the fact that I found
Muniz and Gomez to be credible witness)—the extent of Re-
spondent’s antiunion conduct beginning on that day. An em-
ployer who engaged in unfair labor practices to the extent
that Respondent did commencing on December 31, 1990,
and January 1, would not have waited to do so if they
learned of the Union’s organizing campaign a month to 6
weeks earlier. Respondent’s actions establish that it went ‘‘in
full gear’’ immediately upon learning of its employees’
union activities. I find that this occurred on the afternoon on
December 31, 1990. As regards each of the 10 alleged
discriminatees, Robert testified that none were discharged for
any reason connected to their union activities.
Zarkos
As stated above in the discussion of Zarkos’ status, he re-
turned to Respondent’s employ in about November 1989; at
that time he was told that he would be a driver being paid
$550 a week. Instead, he was paid $500 and, he testified, he
was made the dispatcher for the oil deliveries. Also, as stated
above, he was very active in contacting the Union and noti-
fying the employees of the meeting on November 15, 1990.
On January 1 (none of Respondent’s employees worked that
day) at about 8 p.m., Vincent and Robert came to see Zarkos
at the bakery that Zarkos’ girlfriend owns. Zarkos testified
that they went inside and asked him: ‘‘Who started this
mess?’’ Zarkos asked what mess and either Robert or Vin-
cent asked: ‘‘Who called the Union.’’ Zarkos said that he
didn’t know. They then asked him how much he wanted to
stop being in the Union. Zarkos said that they hadn’t given
him money before when he worked long hours and he didn’t
want any now. He told them that he couldn’t stop the Union.
They told him that he was fired and asked him to return the
keys to the garage, which he did. They then mentioned an
oil spill and he said that it wasn’t his fault. He testified that
during the last 2 months of his employment with Respondent
there were problems with truck maintenance, trucks breaking
down, and oil spills. Wilson Cuesta, who began working for
Respondent on October 1, 1990, as a cleaner, testified that
in about the middle or end of December 1990 he found oil
delivery tickets and customer account cards in the waste bas-
ket next to Zarkos’ desk. He showed them to Zarkos, who
said that they were no good. Cuesta never informed Robert
or Vincent about these cards.
Torres, who left Respondent’s employ in February 1990
and returned on January 1 to replace Zarkos, testified that on
the evening of December 31, 1990, or January 1, he received
messages from Robert and Vincent that they wanted to talk
to him. He returned the calls and they met that evening at
Robert’s home. They asked him if he would be interested in
returning to Respondent’s employ; he said that he was. It is
unclear from his testimony whether they told him at this
meeting that he would replace Zarkos, although that is what
he did the following day. Initially he testified that they told
him that he would replace Zarkos; then he testified that they
didn’t tell him this. Finally, he testified that they said he
would replace Zarkos and he would be doing his job. Miguel
Marquez, testified that in December 1990 he was hired by
Zarkos to paint one of Respondent’s trucks. While he was
there he observed Zarkos and a Mexican man loosening the
tires of a truck. He asked the Mexican man if they were
changing the tire and he said that they weren’t, they were
just trying to leave them loose. Marquez said that was dan-
gerous, but the Mexican told him not to worry, if the truck
was damaged they would get another one. On December 24
or 25 he met with Robert and told him of what he had seen.
Robert testified that Zarkos was fired on January 1; prior
to that time, ‘‘there had been a long series of complaints
from drivers that the trucks were in a state of disrepair.’’ He
was also aware of a large number of trucks breaking down
on the road. He considered it mismanagement until Decem-
ber 31, when Marquez told him that he had seen Zarkos
loosening the bolts and tires of one of the trucks. The next
day he and Vincent went to the home of Zarkos’ girlfriend
and told him that he was fired and that somebody would be
hired to replace him. Nothing was said to him about the
Union because they did not know at the time of the union
campaign at the facility. It was not till the following day that
they learned of the campaign. In addition to this alleged sab-
otage of Respondent’s trucks, Robert testified that from the
mid-1990 they were dissatisfied with his work:
There were trucks breaking down in the middle of the
street. Oil spills all over the place. He used to get driv-
ers to complain about everything. It looked as if he was
harassing the driver. Insulting everybody. He was treat-
ing everybody like a dog that worked for him. He al-
ways had an imperial attitude, but somehow it got
worse and worse.
He testified that in June 1990 he and Vincent spoke to him
and told him that as soon as they could find a replacement
he would be let go; ‘‘Somehow that made things worse.’’
On cross-examination, Robert testified that he and Robert
gave Zarkos the warning in June that he would be fired as
soon as they could locate a replacement because he was
doing a terrible job. The only reason they kept him as an
employee was because ‘‘he was Vinnie’s best friend and they
had known each other for many, many years.’’ and that they
needed time to find a replacement. He testified that Torres
was hired on January 1 to replace Zarkos.6 As to the fact
that Torres was hired the same day that Zarkos was fired, he
testified that they had to ‘‘beg’’ Torres to work for them, al-
though it was Vincent who spoke to Torres.
In this and all the subsequent 8(a)(3) allegations I shall be
following the Board’s guidelines as set forth in Wright Line,
251 NLRB 1083 (1980). The only fairly credible testimony
is Marquez’ testimony about observing Zarkos sabotaging
Respondent’s trucks. Even that testimony is questionable,
however. Why would they admit sabotage to an employee
who had been hired only a few days earlier. An additional
question is the timing; Marquez testified on a number of oc-
casions that he told Robert of what occurred on the days be-
fore Christmas; why did Respondent wait until January 1, the
day after they learned of the union campaign, to fire him. It
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is the timing that convinces me that Zarkos was fired be-
cause of the union campaign; he was fired the day after they
became aware of it. I find unbelievable Robert’s testimony
that they had informed Zarkos in June 1990 that he would
be fired when they found a replacement. It, apparently, only
took them 1 day to convince Torres to return to their em-
ploy. Why couldn’t they hire him in June 1990 to replace
Zarkos? An additional reason supporting this finding is the
statements Robert and Vincent made to Zarkos on January 1.
For all these reasons I find that Zarkos’ discharge violated
Section 8(a)(3) of the Act, if he was not a supervisor within
the meaning of the Act.
Zarkos testified that he was the dispatcher for the oil driv-
ers, without the power to hire or fire. On the one occasion
when he fired Medina, Vincent rehired him, telling Zarkos
that he was not supposed to fire employees. In his affidavit
he stated that he reprimanded employees. This comports with
his warning to Marquez to call in before reporting next for
work, after Marquez called in sick on two straight Mondays.
Campos testified that Zarkos assigned the deliveries to the
drivers and he heard that he had the authority to hire and
fire, although he never saw him exercise this authority. Me-
dina testified that Zarkos was his dispatcher, not supervisor.
Vincent was his supervisor. When he returned to work after
being fired by Zarkos, Vincent told him that Zarkos didn’t
have the authority to fire him. Marquez, Cuestra, and Rosa
each testified that Zarkos hired them in late 1990, without
apparent approval from anybody else. Chung testified that
when he prepared job descriptions for the employees in Au-
gust 1990 he interviewed the employees to determine what
they did. His job description for Zarkos includes the power
to hire and fire.
With some hesitation, I find that Zarkos was a supervisor
within the meaning of the Act. The reason for my hesitation
is that I found Zarkos to be a generally credible witness and
his weekly wages were similar to the drivers. In addition,
when he fired Medina, that decision was overturned by Vin-
cent. However, the fact that he did fire Medina and gave a
warning to Marquez establishes that he had, or thought he
had, some of these powers. In addition, there was nothing to
refute the testimony of Rosa, Zuleta, Questa, and Marquez
that Zarkos hired them. Finally, Chung testified credibly that
the job description that he prepared for Zarkos stating that
he had the power to hire and fire employees was based on
what Zarkos told him, and when the job description was
completed a copy was given to Zarkos, apparently. without
dissent. For all these reasons I find that Zarkos was a super-
visor within the meaning of Section 2(11) of the Act and that
his termination, otherwise unlawful, does therefore not vio-
late Section 8(a)(3) of the Act. Having found Zarkos to be
a supervisor within the meaning of the Act, I recommend
that the challenge to his ballot be sustained.
Muniz
Muniz began working for Respondent in September 1988;
originally, she was taking phone orders for oil and service.
From the middle of 1989 (when Respondent began employ-
ing computers) until her termination on about January 1, she
prepared the automatic delivery tickets for the drivers and
would occasionally assist on a service call. As stated above,
she was active for the Union in obtaining signed authoriza-
tion cards from the employees. Zarkos used to drive her to
work and did so on January 2 even though he had been fired
the prior day. When she arrived at work that morning, Robert
and Vincent asked her who brought her to work that day and
she said Zarkos they did not respond. She began answering
the phones and doing the automatic delivery tickets, as usual.
At about 10 a.m. that morning, Emily Williams, an office
employee who usually did not report for work until about
noon, asked Muniz to show her how to do the automatic de-
livery tickets; Muniz refused, saying that if she made a mis-
take, she (Muniz) would be blamed for it. She testified that
on that morning Robert stayed in the office where she
worked all morning, paying ‘‘closer attention to what I was
doing.’’ At lunchtime, Wong called her into her office and
asked what was going on; Muniz asked about what? Wong
said that Muniz knew what she was referring to, and she
should talk to her about it. Wong then asked her about the
Union and the meeting; Muniz denied any knowledge of it.
Wong then called Vincent into the office and told him that
Muniz didn’t want to cooperate. Vincent then wrote on a
piece of paper the names of employees whom he said at-
tended the meeting and said that Novillo and Angel had told
him what was going on with the Union. Wong then told her
that this was her last day working for Respondent. Muniz
asked for her paycheck and, as she was leaving, she was
stopped by Robert who tried to convince her to talk to him,
but she again said that she didn’t know anything. He then
asked her about an incident a week earlier when a customer
was told to buy her oil elsewhere. Muniz told him that it
could not have been her, as the call came in at 2 a.m. As
she was leaving, Robert told her not to leave, saying, ‘‘Go
back to work, you’re not my enemy.’’ She returned to work
and worked for the remainder of the day. When she reported
for work the following morning Williams told her that Rob-
ert said that she should sit next to Muniz at the computer
to learn how to do the automatic oil delivery tickets. After
lunch that day, Robert called her into his office and began
to question her as he had the day before; she told him that
she didn’t want to talk about it. She had enough the prior
day. Wong then handed Muniz her checks and told her to
take 2 weeks off ‘‘until everything settles down.’’ Vincent
and Robert were also present. She left shortly after noon.
When she got home she realized that the checks were not
signed. She returned to the office on January 5, at which
time Wong signed and cashed the checks. Two weeks later
she called Wong and asked if she could return; Wong told
her to take 1 more week. One week later she again attempted
to call Wong. She was unable to reach her and spoke to Vin-
cent, who told her that business was slow and that she
should go to the unemployment office in the meanwhile. Re-
spondent’s answer states that Muniz was fired because she
was unable to properly operate the computer that issued the
automatic oil delivery tickets. Muniz testified that from Janu-
ary 2 until Vincent told her to go to unemployment because
work was slow, neither Vincent, Robert, or Wong com-
plained about her inability to perform the job.
Robert initially testified that when Wong questioned
Muniz and Gomez about the allegedly misdirected Board en-
velope on January 2, Muniz refused to answer any of the
questions. ‘‘That infuriated Linda, and Linda fired her.’’
Subsequently, he testified to two other problems. One in-
volved a call from a customer asking for the price of the oil;
she gave the customer the price and the customer said that
493A.P.R.A. FUEL OIL
another company had offered oil at 5 cents a gallon cheaper.
Muniz told the customer that if he didn’t like the price, he
should buy the oil from the other company. Robert testified
that he overheard this conversation, criticized Muniz for her
actions and told her that she was fired. He discussed it with
Wong and she agreed and gave Muniz her checks. Robert
also testified to Muniz’ difficulty with the computer that
issued the automatic delivery tickets for the oil deliveries. In
this regard, Muniz testified that she, occasionally, made mis-
takes with the computer, but that was due to the lack of
training they gave her. Robert testified that Muniz was fired
because of her difficulty with the computer that prints the
automatic oil delivery tickets. It was not a difficult system
to learn, but Muniz could not properly operate it, even
though he sent her for training on ‘‘numerous occasions.’’
There were ‘‘constant complaints’’ from customers about
running dry when they should have received automatic deliv-
eries; in addition, she pressed a wrong key on the computer
and wiped out Respondent’s customer’s accounts, which took
a great deal of time to correct. Because of this, the fact that
she had recently ‘‘developed a terrible attitude,’’ the tele-
phone call where she allegedly told a customer to buy his
oil elsewhere and the Board letter situation, Muniz was fired.
He testified that her discharge was not related to her union
activities and that he never discussed her union activities
with her.
I have no difficulty crediting the testimony of Muniz over
Robert. I have previously discussed why I found Robert to
be a generally incredible witness. In contrast, I found Muniz
to be an articulate and credible witness. The first workday
after Respondent learned of the Union she was questioned
about the Union and told to go home; this order was later
rescinded. The next day there was another attempt to ques-
tion her and she was told to take 2 weeks off, then told to
take another week off, and then basically told that she was
terminated. From a credible Respondent, free of additional
unfair labor practices, these facts might satisfy its burden.
With this Respondent I find that General Counsel has clearly
satisfied its burden and that Respondent has not. I therefore
find that by discharging Muniz on January 3, Respondent
violated Section 8(a)(3) of the Act. I also recommend that
the challenge to her ballot be overruled.
Gomez
Gomez began working for Respondent on November 7,
1990, as a receptionist. She testified that prior to January 14
Respondent had never complained about her work, although
she was having some difficulty with the new phone system
Respondent had installed. On that day, she was called into
the back office and Robert told her that there were com-
plaints about the phone not being answered; he also asked
her if she had spoken to Muniz. He handed her a check for
the prior week’s pay and for the pay for that day, Monday,
January 14. As to how she knew that she was being fired,
she testified that it was a combination of ‘‘the smirk on his
face,’’ complaining about her work and giving her the check.
Robert testified that prior to the employment of Gomez,
Respondent had installed an automated phone system that
was supposed to automatically transfer calls to the requested
department, but the training wasn’t going well and they de-
cided to hire somebody for a short period until their employ-
ees could learn how to properly operate the new system. He
testified that this was the job that Gomez was hired for and
when she was interviewed by Chung he told her that the job
would only be for a couple of weeks or a month and ‘‘until
we got comfortable with the system.’’ Gomez testified that
she was never told that the job would be temporary. Robert
testified that when the new phone system was operating
properly, in January, he told Gomez that her services would
no longer be required because the new phone system was
working properly.
Although not as obvious as the discharges of Zarkos and
Muniz, I find that the discharge of Gomez violates Section
8(a)(3) of the Act. I found Gomez to be a direct, articulate,
and credible witness and credit her testimony over that of
Robert. I therefor credit her testimony that when she was
hired she was not told that the job would be temporary. That,
together with the timing of the discharge, about 2 weeks
after Respondent learned of the Union and fired Muniz, and
Robert’s question to Gomez when he fired her, whether she
had spoken to Muniz, convince me that this discharge was
in retaliation for the union campaign, and therefor violates
Section 8(a)(3) of the Act. I also recommend that the chal-
lenge to her ballot be overruled.
Campos
As stated above, Campos had three periods of employment
with Respondent. He left the first two times in order to ob-
tain a higher form of license. For his last period, he began
in August 1990 as an oil driver. Campos testified that on
February 4, he was called into Robert’s office, and Robert
told him that work was slow and he should take a week’s
‘‘vacation.’’ He testified that work was not slow at the time,
although in an affidavit he gave to the Board he stated:
‘‘Business is a lot slower this year.’’ Robert said that he was
going to ask a different driver to take off a week at a time.
Campos asked why he was going first and Robert said that
he had been working a lot and he wanted him to rest.
Campos asked for the pay for the week he was going to take
off and Robert said that there was no money for it. He had
never before taken off during the winter. He returned to Re-
spondent’s facility on February 11 at 8 a.m. At that time,
Robert told him to take another week off because work was
still slow. Campos asked why he should take another week
off when Robert said that he would give a week vacation to
another driver the second week. Robert said that it was be-
cause he wanted the Union. Campos asked if that was a
problem and Robert said that it was.
Campos testified that he next spoke to Robert on February
18; at that time and at subsequent meetings in March, he
asked Robert if he would put him back to work and Robert
said that he would, but with a new payment system. He
would pay him 2 cents a gallon for each gallon delivered.
Afterward, Campos would purchase the truck and Respond-
ent would pay him 5 cents a gallon for each gallon delivered.
He said that the truck that Campos was driving cost $80,000;
Campos said that he didn’t have such money. Robert said
that he could lend him the money which Campos could repay
over a period of time. Robert gave Campos a New York
State Business Certificate which Robert had filled out under
the name of ‘‘Campos Transportation Co.’’ Campos refused
to sign it saying that he had no money to pay for it, but that
he would rather return as an employee. Robert said that he
no longer wished to have employees. During one of these
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meetings in March, Robert asked him if he was still going
to the meetings. On about March 1, Torres called Campos
and asked him if he wanted to work. Campos said that he
did, because he had no job and he had a family to support.
Torres told him to come to the facility and talk to Robert.
When he spoke to Robert, he repeated about Campos buying
the truck and said that he could earn $15,000 a year. Campos
returned on March 4 and asked Robert whether he really
wanted to give him a job. Robert told him that he was a
good worker, and if he voted for Respondent at the election
2 days later, he would give him his job back.
Respondent’s answer alleges that Campos was hired as a
seasonal employee in 1990 and that he was on furlough and
failed to return to work at the end of that period because he
was collecting unemployment benefits and taking English
lessons. Torres testified that shortly after he returned to Re-
spondent’s employ on January 2, he instituted a system that
when work was slow he would ask the drivers to alternate
taking a week off at a time. Business conditions in January
were: ‘‘It was in between. Not really so good. Last winter,
you know, the weather was not so good.’’ Under this new
system he told Campos to take a week off and return the fol-
lowing week. Campos returned the following week and
Torres had work for him, but Campos said that he wouldn’t
work unless he got paid for the week he was out. He called
Campos on about 15 occasions to work (‘‘I really need
him’’), but he refused to return because he wasn’t paid for
the week and he wanted to go to school to learn English. Be-
cause Campos never returned, he was the only driver who
was told to take a week off during the winter season. Robert
testified that Torres had arranged for each oil driver to take
1 week off; Campos was paid the most so he was chosen
to be first, but after taking the week off he quit. Subse-
quently, Robert had conversations with his lawyer and the
Board agent about rehiring some of the employees to settle
the unfair labor practices that were filed or alleged in the
complaints. Robert said that he would rehire Campos because
he had quit, he had not been fired. Robert testified that he
told the Board agent that he could not rehire Campos ‘‘as
an individual,’’ but ‘‘could something be worked out where-
as if he didn’t actually work for us, that if he has his own
company, if I could give him work through his own transpor-
tation company.’’ He sent the business certificate to the
Board agent who was unsure of its legality. He testified: ‘‘I
made sure that everything was above-board and that they
were apprised every minute of anything that we were going
to do and make sure that it was legal.’’ On cross-examina-
tion he was asked whether he established these kind of sub-
contracting relationships with any of Respondent’s other
drivers. Initially, he was evasive and denied knowledge; sub-
sequently, he testified that he could not recall any.
An exhibit submitted by Respondent establishes that, in
January, Prudential hired six employees (presumably drivers)
and fired four.
Because I do not find credible Robert and Torres’ testi-
mony that they asked him to take a week off and he never
returned, I find that Respondent fired Campos in violation of
Section 8(a)(3) of the Act. Initially, I credit his testimony
that he wanted to return and contacted Robert on numerous
occasions to do so; on two of these occasions Robert in-
formed him that his termination was due to the Union and
his attendance at the union meeting. Respondent’s economic
defense to this layoff is belied by the fact that during the
prior month it hired six drivers. Additionally, I discredit
Robert’s version of the business certificate incident; it strains
credulity to believe that Campos, who 2 months earlier was
earning $500 a week, would be interested in buying his own
oil delivery truck and working as a subcontractor with Re-
spondent, and that a Board agent would promote such an ar-
rangement. Finally, it must be remembered that Campos was
the principal target of Respondent’s 8(a)(1) conduct as de-
scribed above. For all these reasons, I find that Respondent
unlawfully terminated Campos on February 4 and also rec-
ommend that this challenge be overruled.
General Counsel also alleges that Campos was denied a
week’s paid vacation, in violation of Section 8(a)(1) of the
Act. The evidence establishes solely that he received a
week’s paid vacation in May 1990 and not in February. I
find that this allegation is not supported by sufficient evi-
dence.
Medina
Medina began working for Respondent in about September
l990 as an oil delivery driver. He testified that the only prob-
lem that he had at work was on one occasion, Robert asked
him to do a delivery after 5 p.m.; he refused because Re-
spondent wasn’t paying for overtime hours. Vincent told him
that he was in his ‘‘black book’’ because of the incident. No
date was given for this incident, but it was, apparently, be-
fore December 1990 when he was given an increase in salary
for doing additional deliveries. Other than the above ‘‘black
book’’ incident, the bosses never complained about his work
and he never heard of any customer complaints regarding his
deliveries. He testified that on his final day of work, January
3, Robert told him that he wanted to speak to him. While
he was waiting outside the office he saw Campos, who told
him that they were asking him about the Union. Robert and
Wong met with Medina in the office. Robert had oil delivery
tickets in his hand and asked Medina how many tickets he
was doing; Medina said that he was doing 21. Robert said:
‘‘Good, but not good enough.’’ He said that Campos was
doing 30. Medina said that Campos was working long hours
and that he would work long hours as well if Respondent
would pay him overtime. Medina said that he did all the de-
liveries assigned to him and did not return delivery tickets.
Robert told him that he was fired; the only reason he gave
was ‘‘productivity.’’
Respondent alleges that Medina was fired on December
29, 1990, ‘‘during his probationary period for his inability to
fulfill the duties of his job. He returned delivery tickets in-
stead of making deliveries, resulting in many customer com-
plaints.’’ Robert testified that Medina was fired because of
the customer complaints that he failed to make their deliv-
eries. ‘‘What happened is that he kept bringing deliveries
back.’’ Vincent told him that he was fired for this reason.
On cross-examination he testified that it was both Vincent
and Torres who told him that he was fired for his difficulty
in making deliveries. Although this situation is not as obvi-
ous as some of the others discussed above, I find that the
evidence establishes that Medina’s discharge violates Section
8(a)(3) of the Act. He was fired the second day after Re-
spondent became aware of the union campaign. Although
Respondent alleges that he was fired for his many
uncompleted deliveries, he was given a raise a month earlier.
495A.P.R.A. FUEL OIL
Respondent’s answer alleges that he had not completed his
probationary period; other than Benavides, all of the employ-
ees who were questioned about the subject testified that they
were never told of any probationary period. Medina’s answer
to this question was not responsive. Finally, Medina testified
that Vincent asked him if he knew about the Union and said
that if the Union got in they would kick off the existing driv-
ers and put their drivers in. Although Medina placed this in
the middle of December 1990, I find it more likely that it
occurred on December 31, 1990, or January 2. For all these
reasons I find that Respondent unlawfully discharged Medina
on January 3. I would therefor also overrule the challenge to
his ballot.
Benavides
Benavides began working for Respondent on August 15,
1990, as a boiler mechanic. Respondent’s answer alleges a
number of reasons for Benavides’ discharge: it is alleged that
he failed to produce documentary evidence that he could
lawfully be employed in the United States under the Immi-
gration and Naturalization Act, although Robert testified that
this was not a reason for his discharge. Additionally it is al-
leged that he was discharged for incompetent work that
caused damage to customer’s property, intoxication on the
job, unauthorized use of Respondent’s vans, failing to re-
spond to radio calls and failing to complete his assigned
work. Benavides testified that he was interviewed by Vin-
cent; at this interview he told him that his real name was
Jose Ciudad. He entered the United States on a 6-month visi-
tor’s visa and did not have a Green Card. Vincent told him
that in order to work for Respondent he needed a legal name
in order to be on the books and pay taxes. The real Victor
Benavides, who was leaving the United States, gave him his
social security card to use, and he also explained that to Vin-
cent. His last day of work was February 3; he was not sent
out to work that morning; Novillo told him to stay at the fa-
cility because he wanted to speak to him. At about 9:30 a.m.,
Novillo told him that work was slow and they no longer
needed him. Benavides said that it was because of the Union.
Novillo said, ‘‘No, it’s because work is slow.’’ Benavides
testified that on the previous day he worked until 8 p.m.
In December 1990 or January, Benavides was assigned to
replace an existing pipe in a basement. The super asked him
to leave the old pipe until he could return to close it off. Un-
fortunately, nobody informed Respondent’s oil delivery peo-
ple of this situation, and a delivery was made into this open
pipe which resulted in a basement with 100 gallons of oil.
The following day Vincent told him that he was wrong for
leaving the open pipe there and that he had to send someone
to the building to clean the spill. Benavides also testified to
another situation that occurred about a week before he was
discharged. He went to a job and did the work he was as-
signed to perform. The customer asked him to perform an
additional job requiring a glass pipe cutter, which he didn’t
have with him. He left the premises to purchase the tool, and
when he returned, the customer told him that she had called
Respondent’s office and they had already dispatched another
person to do the job. When he returned to the facility, both
McClain and Vincent spoke to him about the incident.
As stated above, one of Respondent’s alleged reasons for
firing Benavides (as well as other as discussed below) is that
he took Respondent’s van home at night rather than leaving
it at Respondent’s facility. Benavides, Alberto, and Pedro
Guzman each testified that they took Respondent’s vans
home at night regularly and were never criticized for it, al-
though there was a sign at the facility saying that they were
not supposed to do so. Novillo testified that most of the serv-
icemen who were working the following day took the vans
home, with or without permission. Robert testified that
Benavides used to leave tools in customers’ basements and
‘‘never had the tools that he needed to do a job.’’ He was
present during a number of discussions that Novillo had with
Benavides on these subjects. Novillo did not testify in this
regard.
I find that General Counsel has sustained its initial burden
under Wright Line, supra. As stated above, on January 8,
Vincent asked Benavides to sign the affidavit disclaiming
any interest in the Union under threat of discharge. In addi-
tion, he asked him if he had signed a card for the Union and
he said that he had since everybody else had signed. Addi-
tionally, he was fired for the lack of work on the day after
he worked until 8 p.m. Finally, any such action by an em-
ployer with this much animus, 1 month after learning of its
employees’ union activity must be viewed with some sus-
picion. I find that Respondent has not sustained its burden
herein. The only evidence in this regard is Robert’s testi-
mony as to what he heard Novillo complain to Benavides
about. However, Benavides never testified about his relation-
ship with Benavides and Benavides testified to two prob-
lems—the oil spill and the lack of a proper tool at a job.
Without demeaning these problems, they were the only two
over a 6-month employment period. I therefore find that Re-
spondent violated Section 8(a)(3) of the Act by discharging
Benavides on February 3, and I, accordingly, overrule the
challenge to his ballot.
Alberto Guzman
Guzman first worked for Respondent from mid-1989
through January 1990, at which time he was terminated by
Vincent for missing 2 days of work. He was rehired by Re-
spondent in June 1990 when Vincent looked for him because
he needed him to repair a truck. He worked from that time
to January 14 as a truck mechanic for Respondent. He testi-
fied that when he was first interviewed by Vincent, he told
him that his real name was Jorge Bianey Diaz and that he
was in the country illegally and had no papers. Vincent told
him to get a social security card and he obtained it in the
name Alberto Guzman. Respondent’s answer alleges that
Guzman resigned after stealing a van belonging to Respond-
ent and failing to report that it was involved in an accident
which destroyed the van. Respondent’s answer also alleges
that when he was discharged (a few sentences earlier, coun-
sel for Respondent, in his answer, stated that he resigned) on
January 14, he was in his probationary period. Guzman testi-
fied that when he was hired he was never told of a proba-
tionary period and Respondent presented no credible evi-
dence to establish that it had a probationary period of this
length. I therefore reject this defense, here, as I have else-
where.
Guzman admittedly used the van prior to the time it was
involved in an accident; he denies that he was driving it at
the time of the accident. Respondent alleges that it had to
be him. Guzman testified that while he was away from the
facility in his van, he heard over the car radio a call from
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
one of Respondent’s trucks asking for assistance with two
flat tires. He went to assist, but could not change the tires
because it was a heavy truck and he had only a jack to lift
the truck, so he called for help and a lift truck was sent to
assist. When Guzman informed Vinnie that he could not do
the job, Vinnie was angry and asked him what he was doing
there. He took the van home directly from there and parked
it on the street. When he awoke the following morning the
van was not where he had left it the prior evening, and he
took the train to work. At this point, Guzman’s testimony be-
comes somewhat confusing, even on direct examination. He
testified that when he arrived at work he told Vincent that
the van had been stolen and that Vincent was angry. Vincent
told him to look for the van, ‘‘that he already had the ad-
dress . . . he gave me the address of where the van was lo-
cated. He wanted me to pull it with another van. I went to
look for it without the van.’’ When he saw the van, it had
been involved in a serious accident and had a broken wind-
shield. He testified that he wasn’t able to do anything be-
cause the police were there, yet he did not speak to the po-
lice. Instead, he returned to the facility and Vincent told him
that the damage to the van was going to cost him a lot of
money and was his fault; he told Guzman to go home. He
testified that he was not drunk on the prior evening when he
drove the van. When Guzman went to pick up his final
check, Vincent gave him the following letter, which Guzman
signed:
Alberto Guzman understands and has been explained
the reason for his discharge. Being for unsatisfactory
performance and alcohol problems on the job. He has
been advised many times to stop drinking on the job
however he persisted on drinking and finally when he
had an accident with the van belonging to the company
a van that he took without permission and drove drunk
and crashed it he was immediately discharged because
of this incident.
I have received and have read and have been ex-
plained the above and are familiar with the facts.
Vincent told him to sign the paper; he didn’t fully under-
stand it, but he saw that it referred to alcohol, drinking, and
being drunk. Guzman signed it and wrote, in Spanish, that
he didn’t know if the document was true. He testified that
after he signed it Vincent crumpled it up and threw it into
the garbage. Guzman retrieved it.
On cross-examination the confusion persisted. He testified
that Vincent told him to go to the scene of the accident
where the van was located with a van and a chain, but he
did not do so. He did not explain why he failed to take a
van and chain to the scene. He did explain why he did not
speak to the police when he arrived at the scene: he does not
have a driver’s license. When he saw the van it was double
parked and hit on the right side. The space between the van
and the sidewalk was empty at the time he got there. He tes-
tified that he had not been involved in an accident with the
van and was not drinking alcohol the last time he drove the
van.
Robert testified that Guzman had developed a drinking
problem on the job: ‘‘he was never sober,’’ but Zarkos said
that they should keep him and he would watch him. He testi-
fied that when Guzman went to fix the flat tires of the truck,
the driver of the truck said that he had vodka with him and
when Guzman called in on the radio, he was ‘‘dead drunk.’’
On Monday, January 14, he received a call from a tow truck
company that one of Respondent’s vans had been involved
in an accident and had been towed to their parking lot. Rob-
ert said that he would send one of his people to pick up the
van, but was told that it was demolished and would have to
be towed. They asked him where he wanted it towed. He
said that he would send a mechanic with a tow truck in order
to save the towing cost. This was the first that he knew of
the problem. At that moment he saw Guzman walking into
the facility and concluded that the van that had been dam-
aged was the one that Guzman had on the prior day. Vincent
then told Guzman to take a van with a chain and bring the
van to the facility. When Guzman returned to the facility he
said that he quit, wanted his pay check, and would not an-
swer any questions. They gave him his check and he left. On
cross-examination Robert was, as usual, argumentative and
not responsive. He testified that Guzman was drunk and was
seen with a bottle of vodka by the tow truck driver although
he never saw him with the bottle. He then added (in response
to no question) that they found a bottle in the van on the
following day. This testimony, as is true of much of his testi-
mony, does not ring true. How would the tow truck operator
see Guzman with a bottle? At the time he was towing the
truck Guzman was long gone. Also, if the truck was as de-
molished as Robert testified, is it reasonable to assume that
a bottle of vodka (or Guzman, if he was the driver when the
accident occurred as Robert testified) would survive such an
impact? In addition, Robert was asked how he was so certain
that Guzman was driving the van at the time of the accident,
when he testified that the van was stolen and then demol-
ished. He testified that he has no definite proof, but all the
facts lead to his conclusion.
I find that General Counsel has sustained his burden here-
in. Guzman was discharged 2 weeks after Respondent
learned of the Union’s campaign and, within a week of his
discharge he was asked to, and did, sign the affidavit with-
drawing from the Union, and was interrogated about the
union leaders and threatened that the company would close
if the Union won. The ultimate issue then is whether Re-
spondent has satisfied its burden of establishing that he
would have been fired even absent the union activity. This
issue is especially difficult because of the credibility of the
witnesses involved. I have previously discussed Robert’s lack
of credibility, generally, as well as specifically as regards this
allegation. Guzman’s credibility is also questionable regard-
ing this allegation because of the unanswered questions re-
maining from his testimony. because of the timing of the dis-
charge, within a week of three incidents of 8(a)(1) conduct
directed at Guzman, as well as the lack of definitive credible
proof that Guzman was driving the van when the accident
occurred, I find that Respondent has not sustained its burden
herein. I therefore find that Respondent discharged Alberto
Guzman on January 14 in violation of Section 8(a)(3) of the
Act, and, accordingly, I overrule the challenge to his ballot.
Pedro Guzman
Pedro Guzman began working for Respondent on Novem-
ber 2, 1990, as a boiler mechanic. He testified that he usually
worked 70 to 80 hours a week, 7 days a week. His final day
of employment with Respondent was December 31, when he
497A.P.R.A. FUEL OIL
worked 8 hours. He testified that his assigned day off was
Wednesday, although he usually worked on Wednesdays. He
did not work on Tuesday, January 1 and did not report for
work on Wednesday, January 2, presumably because it was
his assigned day off. When he reported for work on January
3, McClain gave him a letter and told him that she didn’t
have any work for him. He asked who wrote the letter and
she said that she didn’t know, that he should ask Robert. The
letter has his name at the top and is signed ‘‘Patrick.’’ it
states:
1. All of the service calls he goes to call back saying
he didn’t do anything.
2. Many of the customers call back saying don’t
send this serviceman anymore.
3. Many customers call saying send anybody except
Guzman.
4. One day he had three services and all 3 customers
called back saying please don’t send this guy anymore.
5. Guzman takes van home with him with no permis-
sion.
6. Guzman knows that no one is allowed to take the
van home because signs are posted and notices have
been circulated and he’s been told many, many times
that he must park the van in the garage.
7. Guzman didn’t show up to work yesterday and
didn’t bother calling, this after a long weekend. He did
not tell the company that his phone # had been discon-
nected and we had no way of getting in touch with
him.
Novillo began to write an eighth reason, but crossed it out.
Guzman then met Robert and asked him who wrote the letter
and Robert said that he didn’t know; he later testified that
Robert said that Novillo wrote the letter. Guzman testified
that he told Robert that the contents of this letter was a lie,
although the affidavit that he gave to the Board does not
state this. Robert told Guzman to take his tools. He saw that
Guzman had a beeper and asked him if he was selling drugs
or taking his customers. Guzman said neither and he left. He
testified that he has had his own service business and cus-
tomers for 10 years using his own tools, parts, and car. This
business services about 100 buildings.
Guzman testified that he is not aware of any customer
complaints about his work or of any customer requests that
he not return. In fact he testified that every customer was
satisfied with the work that he did. On two occasions he was
sent to correct work done by Novillo. In answer to questions
about specific alleged customer complaints about his work,
he testified that he could not remember the situations.
Novillo testified that Pedro Guzman was fired because of
all the customer complaints about his work. These com-
plaints were that he installed used parts and equipment and
when a customer complained he would tell them to call
somebody else to do it. He testified that between October
1990 and Pedro Guzman’s discharge on January 3, he fired
Kwara, Santana, Rosario, and Pedro Guzman, all servicemen,
all of whom were discharged because of poor work perform-
ance rather than the lack of work. He had five servicemen
remaining after these people were discharged and from that
time to the date of Novillo’s testimony, his department has
functioned well with the five remaining servicemen. No new
servicemen were hired to replace the fired employees. In-
stead, the existing employees are working overtime. Robert
testified that Amer-National only uses new parts in its repair
and maintenance work and they learned that Guzman was
using used parts. When asked about Guzman’s testimony that
there were no customer complaints about his work, Robert
testified: ‘‘More likely is that every single service call that
he did resulted in complaints.’’
Because of the timing of the discharge as well as the ani-
mus described above, I find that General Counsel has sus-
tained its burden herein. However, I also find that Respond-
ent has sustained its burden of establishing that Guzman
would have been terminated even absent the union activity.
I found Novillo to be a fairly credible witness whose testi-
mony seemed pretty reasonable. He had 9 or 10 repairmen
prior to October 1990. Four or five of them were not doing
a good job and between October 1990 and January 3 he fired
four or five of them. Five competent servicemen remained
and since that time they have performed all the service work
without any new servicemen being hired. I found that more
credible than Guzman’s testimony that there were never
complaints about his work. Finally, there was no 8(a)(1) con-
duct directed at Guzman. I therefore recommend that the al-
legation that Pedro Guzman was unlawfully discharged be
dismissed, and the challenge to his ballot be sustained.
Santana
Pedro Santana, Pedro Guzman’s son, began working for
Respondent on about October 15 as a serviceman. The com-
plaint alleges and the answer admits, that he was fired on
November 17, 1990. He testified that his last day of work
was November 26, 1990. He testified that on that day,
McClain told him that he didn’t call into Respondent’s facil-
ity when he completed his jobs as he was supposed to, and
Santana said that he was the only one who did call in. She
then spoke to Robert and told Santana to take the day off
(he was paid for the day) and call in the next day. When he
called the following day she told him that he was ‘‘on a va-
cation.’’ After that, he called every week, but McClain told
him not to return because work was slow. About 2 months
later, she told him: ‘‘Why don’t you find another job?’’ He
testified that neither Robert or Vincent ever complained to
him about his work and that he was never absent or late
without calling in.
In its answer, Respondent alleges that Santana was fired
for poor job performance, inability to fulfill his work, and
failing to follow company procedures. On cross-examination,
Santana testified that Vincent told him that he was working
too slowly and that unless he worked faster he would be
fired. Wong also told him that he would have to work faster.
On November 10, 1990, he had two arguments with Robert
and at about that time Novillo suspended him for a day.
Novillo testified that he made the decision to fire Santana be-
cause of the numerous customer complaints that he had not
done the work properly and it had to be redone. He sus-
pended him at one time, but could not remember when or
the reason. He also received complaints about Santana
joyriding with friends during nonworking time in Respond-
ent’s van. As stated above, he testified that after firing
Santana, Pedro Guzman, Rosario, and Kwara, he has main-
tained a service department of five employees that is operat-
ing well, although with overtime. Robert testified that al-
though he did not make the decision to fire Santana, he is
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I find that Muniz and Gomez share a community interest with
the other employees and thereforee are included in the unit.
aware that ‘‘there was a tremendous number of complaints’’
regarding his work. He testified: ‘‘He was not a mechanic.
He claimed to have been trained by the father [Pedro
Guzman] and I guess the pupil never exceeded the father.’’
I have little difficulty in recommending that this allegation
be dismissed and that the challenge to Santana’s ballot be
sustained. Most importantly, for the reasons discussed above,
I found that Respondent did not become aware of the union
campaign until December 31, 1990. Santana was fired about
6 weeks earlier after only about a month’s employment with
Respondent. Finally, during this month, Santana’s work and
ability were criticized on a number of occasions and he was
suspended as well. I therefore recommend that this allegation
be dismissed and the challenge to his ballot be sustained.
Rosario
Rosario was employed by Respondent from October 27
through November 24, 1990, as a serviceman in Novillo’s
department. He testified that there were never any complaints
about his work. On one occasion, Robert or Vincent in-
formed him that they were aware that he was driving with
nonemployees of Respondent in the van. He said that he was
driving the people to Respondent’s facility to apply for jobs.
On one occasion in November 1990, a car was not visible
on the right side of his van, and when he turned to the right
he hit the car and damaged the van. When he told Robert
of the accident he offered to pay for the damages, but Robert
told him that he could take care of it if he wished, otherwise
it was covered by insurance. On his last day of work
McClain told him to go home because work was slow and
that he should call during the week. Whenever he called after
that he was told that work was slow. Respondent’s answer
alleges that he was fired for joyriding in Respondent’s van
with nonemployees and for poor job performance resulting in
complaints from customers. Novillo testified that he fired
Rosario because of complaints he received from Respond-
ent’s customers regarding his work, Novillo’s refusal to con-
tact him over the radio to learn of his availability, and the
fact that he damaged one or two of Respondent’s vans. In
addition, his answers regarding Santana and Pedro Guzman
apply to Rosario as well; since early January, Novillo has
operated very well with just five servicemen.
As stated above regarding Santana, I find that General
Counsel has not sustained its burden regarding Rosario. He
was fired prior to the time that I found that Respondent
learned of the union campaign, there were no 8(a)(1) com-
ments directed at him, and Respondent apparently had some
good-faith problems with his work (and driving) perform-
ance. I therefore recommend that this allegation be dis-
missed.
G. The Bargaining Order Request
I have found numerous 8(a)(1) and (3) violations. The
final question to be determined is whether these findings are
adequate to support a bargaining order under NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). I have already found that
the appropriate unit herein is as follows:
Included: All full-time and part-time drivers, service-
men, dispatchers and mechanics employed by [Re-
spondents] at their Brooklyn, New York facility.
Excluded: All other employees, office clerical em-
ployees, managers, guards and supervisors as defined in
the Act.
The Union obtained 20 signed authorization cards from the
following employees: Zarkos, Muniz, Zuleto, Echevarria,
Alberto Guzman, Pedro Guzman, Jesus Campos, Bernardo
Campos, Angel Marquez, Pedro Santana, Santos Santana,
Kwara, Romaro, Gomez, Coronel, Lajara, Benavides, Atrach,
Medina, and Rosario. At the time these cards were signed the
only unit employees were the 20 above-named employees
and 3 others, Emily Williams, Wilson Cuesta, and Jose
Monta. The next question to be determined is whether the
Union still represented a majority of the employees in the
unit on December 31, 1990, when the unfair labor practices
commenced. Zarkos’ authorization card must be excluded
since I found him to be a supervisor within the meaning of
the Act. The cards of Pedro Santana and Rosario must also
be excluded as they were lawfully terminated prior to that
date. Although I found that the discharge of Pedro Guzman
did not violate the Act, he was not discharged until January
3; since he was still employed by Respondent through De-
cember 31, 1990, his card will be counted toward the
Union’s majority status. Kwara was fired between October
and December 1990 and (since no complaint issued regard-
ing his discharge) therefore his authorization card will not be
counted. As I have found that Muniz, Gomez,7 Campos, Me-
dina, Benavides, and Alberto Guzman were terminated un-
lawfully, their cards will be counted toward the Union’s ma-
jority status. The testimony therefore establishes that at the
time the cards were signed there were 23 employees in the
bargaining unit. Removing Zarkos (a supervisor within the
meaning of the Act), Pedro Santana, Kwara, and Rosario
(lawfully terminated prior to the effective date) leaves a unit
of 19 employees as of December 31, 1990. The Union had
signed authorization cards from 16 of these employees, a
clear majority.
The next question is whether Zarkos’ participation in the
union campaign tainted enough of the cards to dissipate the
Union’s majority status. Zarkos was clearly the leader in the
early stages of the union campaign. However, once Ness met
with the employees on November 15, 1990, he appears to
have taken a ‘‘back seat,’’ possibly because of the Union’s
concern that he might be a supervisor. He did not take an
active part at the meeting where the cards were signed and
Muniz and Gomez obtained the remaining cards subsequent
to the meeting. Contrary to the contention in Respondent’s
brief, the Union’s card signing campaign was not conducted
exclusively, or even principally, by Zarkos. As the (then)
Trial Examiner Arthur Leff stated in Orlando Paper Co., 197
NLRB 380, 387 (1972):
The Board has never held that any participation by a
supervisor in a union organizing campaign, regardless
of how marginal his supervisory status or how slight
his participation in the campaign may be, is sufficient
per se to invalidate the authorization cards of all em-
ployees having knowledge of his interest in the Union.
Board precedents reflect that the Board will not invali-
date designation cards for supervisory taint unless it is
499A.P.R.A. FUEL OIL
affirmatively established as a minimum, either that the
participation of the supervisory personnel in the organi-
zational campaign was of such a kind as to have im-
plied to the employees signing the cards that their em-
ployer favored the Union, or that there is a reasonable
basis for believing that the employees whose cards are
sought to be invalidated were coercively induced to
designate the Union through fear of supervisory retalia-
tion.
I found that Zarkos was a supervisor within the meaning of
the Act, but he was clearly a low-level supervisor; examining
his pay and that of the oil drivers reinforces that finding.
There is no evidence that any of the employees felt that
Zarkos’ participation in the campaign meant that Respondent
favored the Union. In fact, at the meeting, Ness told the em-
ployees not to solicit union cards at Respondent’s facility
and many of the employees testified that they tried to keep
the campaign secret from Robert, Vincent, and Wong. Addi-
tionally, there is no credible evidence that Zarkos coercively
induced any employee to sign a union authorization card. I
therefore find that on December 31, 1990, and thereafter, the
Union represented a majority of Respondent’s employees in
an appropriate unit.
The final question is whether the above findings warrant
a Gissel bargaining order. There can be no question but that
they do. I have found that Respondent unlawfully terminated
6 employees out of a unit of 18 employees; one-third of the
unit had been unlawfully fired within 5 weeks of Respondent
first learning of the union campaign. In addition, Respondent
unlawfully induced three employees to sign affidavits dis-
claiming interest in the Union and engaged in other unlawful
threats, interrogation, and promises of benefits in exchange
for withdrawing from the Union. These are clearly ‘‘out-
rageous’’ and ‘‘pervasive’’ unfair labor practices and warrant
a bargaining order under Gissel.
IV. THE OBJECTIONS
On the basis of the above findings, I recommend that the
following objections be sustained: Objections 1, 2, 3, 4, 6,
7, 8, and 11. I recommend that the remaining objections be
overruled.
V. THE EFFECT OF SUCH CONDUCT ON THE ELECTION
As I have recommended that Objections 1, 2, 3, 4, 6, 7,
8, and 11 be sustained, it is recommended that the election
conducted on March 6 be set aside. In view of the bargaining
order found applicable herein, it is likewise recommended
that the representation proceeding in Case 29–RC–7760 be
dismissed.
VI. THE CHALLENGES
Based on my findings above I recommend that the chal-
lenges to the ballots of the following employees be over-
ruled: Muniz, Gomez, Campos, Medina, Benavides, and
Alberto Guzman, and that their ballots be opened and count-
ed. I would likewise recommend that the challenge to the
ballots of the following employees be sustained: Zarkos,
Pedro Guzman, and Pedro Santana.
CONCLUSIONS OF LAW
1. APRA, Prudential, and Amer-National are each employ-
ers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. For the purpose of this proceeding, APRA, Prudential,
and Amer-National constitute a single integrated business en-
terprise and a single employer within the meaning of the Act.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following conduct:
(a) Interrogating its employees regarding the Union’s orga-
nization campaign.
(b) Interrogating its employees about their union sym-
pathies and the union activities of their fellow employees.
(c) Threatening to fire its employees for failing to disclose
their union activities.
(d) Offering to give raises and additional vacation pay to
its employees if they would withdraw their support for the
Union.
(e) Directing and assisting its employees to sign an affida-
vit to withdraw their support from the Union.
(f) Threatening to cease operating the Company if the
Union was certified as the employees’ representative.
(g) Offering to reinstate an employee to his former job if
he voted against the Union in the Board election.
(h) Interrogating its employees about the leaders of the
union campaign among the employees.
(i) Creating an impression among its employees, that their
union activities were under surveillance by Respondent.
5. Respondent violated Section 8(a)(1) and (3) of the Act
by terminating the employment of Muniz, Gomez, Jesus
Campos, Medina, Benavides, and Alberto Guzman because
of their membership in, and activities on behalf of, the
Union.
6. The following unit is appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act: All full-time and regular part-time drivers, servicemen,
dispatchers, and mechanics employed by Respondents at their
Brooklyn, New York location, excluding all clerical employ-
ees, managers, guards and supervisors as defined in the Act.
7. Since November 15 and December 30, 1990, and at all
times thereafter, the Union has represented a majority of the
employees in the above-described unit and has been the ex-
clusive representative of these employees for purposes of col-
lective bargaining within the meaning of Section 9(a) of the
Act.
8. The aforesaid are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. The Respondent’s unlawful conduct interfered with the
representation election conducted on March 6, 1991.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully terminated
Luz Muniz, Damaris Gomez, Jesus Campos, Ismael Medina,
Victor Benavides, and Alberto Guzman, I shall recommend
that Respondent be ordered to offer each of them immediate
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reinstatement to their former positions of employment or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and to expunge from its files any references
to the terminations. It is also recommended that Respondent
be ordered to make Muniz, Gomez, Campos, Medina,
Benavides, and Alberto Guzman whole for any of earnings
they suffered as a result of the discrimination against them.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), and New Horizons for the
Retarded, 283 NLRB 1173 (1987). See generally Isis Plumb-
ing Co., 138 NLRB 716 (1962).
For the reasons set forth above, I shall recommend that
Respondent be ordered to recognize and, on request, to bar-
gain collectively with the Union as the exclusive collective-
bargaining representative of the employees in the above-de-
scribed unit. As a bargaining order has been found to be ap-
propriate, it would be consistent that the election in Case 29–
RC–7760 be set aside and that the petition in that matter be
dismissed.
Further, I find that the egregious and widespread mis-
conduct of Respondent herein warrants a broad remedial
order. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]