Control Services

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 431 (N.L.R.B. 1994)

431
315 NLRB No. 57
CONTROL SERVICES
1 We adopt the judge’s findings in support of his dismissal of the
Respondent’s motion to disqualify the judge on the grounds of bias.
After a careful examination of the record and the judge’s decision,
we are satisfied that the allegation of bias is without merit.
Chairman Gould commends the judge for the assertive and respon-
sible manner in which he exercised the authority expressly granted
to him in Sec. 102.35 of the Board’s Rules and Regulations.
The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the allegation pertaining
to the discharge of Juan Perez on October 21, 1991, was based on
a timely filed charge, we do not rely on the judge’s discussion re-
garding the viability of the unsigned charge in Case 22–CA–18138.
Instead, we rely on the judge’s application of Redd-I, Inc., 290
NLRB 1115 (1988), which permits the consideration of complaint al-
legations closely related to other timely filed charge allegations.
Here, the 8(a)(3) allegation concerning Juan Perez’ retaliatory dis-
charge referred to an event occurring within a matter of days follow-
ing the October 11, 1991 filing of the charge in Case 22–CA–
18051(2), which alleged that the Respondent violated Sec. 8(a)(3) by
discharging Leandra Perez in retaliation for her union activities. Fur-
ther, as the judge found, the allegation pertaining to Juan Perez’ dis-
charge is also closely related to allegations concerning threats to
Perez and others in reprisal for the exercise of union activities.
1 During the hearing, on March 29, 1993, I granted the General
Counsel’s motion to delete Case 22–CA–18212, previously consoli-
dated with the six remaining cases for consolidated hearing, and re-
mand it to the Regional Director for processing of the withdrawal.
By order dated April 2, 1993, the Regional Director of Region 22
approved withdrawal and dismissed par. 17 and its reference in par.
51 in the second amended consolidated complaint.
Control Services, Inc. and Local 32B-32J, Service
Employees International Union, AFL–CIO.
Cases 22–CA–18051(2), 22–CA–18120, 22–CA–
18127, 22–CA–18138, 22–CA–18318, and 22–
CA–18443
October 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEVENS
AND DEVANEY
On January 28, 1994, Administrative Law Judge
Robert T. Snyder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Control Services, Inc.,
Secaucus, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Julie L. Kaufman, Esq., for the General Counsel.
Joel I. Keiler, Esq., succeeded by David Lew, Esq. (Peckar
& Abramson), for the Respondent.
Eric Pearson, Lead Organizer, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case1
was tried before me on November 4–6, 1992, March 29 and
May 11–14, 1993, at Newark, New Jersey. The second
amended consolidated complaint alleges that Respondent vio-
lated Section 8(a)(1) of the Act by threatening employee
Juan Perez with discharge, threatening organizer Seth
Grodowsky in the presence of Perez with physical assault if
he did not leave its premises, and by filing and pursuing a
criminal complaint against Grodowsky which lacked a rea-
sonable basis in law or fact because he spoke to Respond-
ent’s employees at a work location; violated Section 8(a)(1)
and (3) by discharging employees Leandra Perez, Juan Perez,
harassing by making unreasonable work assignments, issuing
written warnings and then discharging, employee Martha
Arismendi; and violated Section 8(a)(1) and (5) by failing
and refusing to furnish the Charging Party with various items
of information requested by it, necessary for, and relevant to,
the performance of its duties as exclusive collective-bargain-
ing representative of Respondent’s employees employed in
separate appropriate bargaining units, by denying the Charg-
ing Party access to its employees at one work location, and
by failing and refusing to bargain collectively with the
Charging Party for a period exceeding 2 months in various,
described bargaining units in which it was the exclusive bar-
gaining representative of Respondent’s employees. In its an-
swer, Respondent denied the commission of any unfair labor
practices.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. The General Coun-
sel and Respondent have each filed posttrial briefs, which
have been carefully considered.
The Motion to Disqualify
Simultaneously with the filing of its posttrial brief Re-
spondent has also filed a motion demanding that I disqualify
myself and withdraw from the proceedings and that a hearing
de novo be directed pursuant to Section 102.37 of the
Board’s Rules and Regulations. Neither counsel for the Gen-
eral Counsel nor the Charging Union, both served with cop-
ies of Respondent’s notice of motion and accompanying affi-
davit of Attorney David Lew, has responded to the motion.
Section 102.37 states, in pertinent part, that, after a timely
motion for disqualifications has been made, ‘‘[i]f the Admin-
istrative Law Judge does not disqualify himself and withdraw
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from the proceeding, he shall so rule upon the record, stating
the grounds for the ruling . . . .’’
The Respondent, by its counsel, David Lew, alleges that
I exhibited bias and a predisposition to favor the General
Counsel’s witness which, in turn, allegedly hindered the Re-
spondent in its presentation of the case. The allegations
charge, inter alia, that I coached the General Counsel in the
presentation of her case by participating in the cross-exam-
ination of witnesses, introducing evidence, sustaining my
own objections, and showing a hostility towards Respond-
ent’s witnesses. In addition, Respondent charges that I pre-
determined that the Respondent harbored animus towards the
Union without regard to the facts of the instant proceeding.
The Board has consistently held that its proceedings
should be free from partiality and/or bias on the part of the
administrative law judge. Engineers Beneficial Assn. District
1 (Crest Tankers), 274 NLRB 1481 (1985). Furthermore, the
Board has held ‘‘that it is essential not only to avoid actual
partiality and prejudgment . . . in the conduct of the Board
proceedings, but also the appearance of a partisan tribunal.’’
Indianapolis Glove Co., 88 NLRB 986, 987 (1950); New
York Times Co., 265 NLRB 353 (1982); Filmation Associ-
ates, Inc., 227 NLRB 1721 (1977). But see Greenberg v.
Board of Governors of the Federal Reserve System, 968 F.2d
164 (2d Cir. 1992), where the court held that the ‘‘appear-
ance of propriety’’ standard does not apply to administrative
law judges.
The Board is reluctant to hold that the administrative law
judge was partial or created the appearance of partiality
merely because the judge has resolved all issues against the
Respondent. R.E.C. Corp., 296 NLRB 1293 (1989). Further-
more, the Supreme Court has held that even ‘‘the total rejec-
tion of an opposed view cannot impugn the integrity or com-
petence of a trier of fact.’’ NLRB v. Pittsburgh Steamship
Co., 337 U.S. 656, 659 (1949); see also Great Dane Trailers,
293 NLRB 384 (1989).
Preliminary to ruling on the motion it is important to re-
view the role of the administrative law judge in conducting
the unfair labor practice hearing. The authority of the admin-
istrative law judge is set forth generally in the Board’s Rules
and Regulations. Section 102.35 provides, in relevant part,
‘‘It shall be the duty of the administrative law judge to in-
quire fully into the facts as to whether the respondent has en-
gaged in or is engaging in an unfair labor practice affecting
commerce as set forth in the complaint or amended com-
plaint . . . .’’ In furtherance thereof, Subsection 102.35(f) of
the Board’s Rules authorizes the administrative law judge to
‘‘regulate the course of the hearing . . . .’’ Subsection
102.35(k) entrusts the judge with power ‘‘[t]o call, examine,
and cross-examine witnesses and to introduce into the record
documentary or other evidence . . . .’’ and Subsection
102.35(l) permits the judge ‘‘[t]o request the parties at any-
time during the hearing to state their respective positions
concerning any issue in the case or theory in support there-
of.’’
My close review of Respondent’s claims convinces me
that the record fails to establish in any way that I either pre-
judged any issue, conducted the hearing in an unfair manner
or compromised the integrity of the record.
Counsel Lew points to comments made early in the pro-
ceeding, before he became counsel succeeding Joel Keiler, as
showing predetermination of an issue. Counsel for the Gen-
eral Counsel had just adduced testimony from an employee
that at a meeting of employees at one of Respondent’s work-
sites, Automatic Switch (Automatic Switch), from which two
employees are alleged to have been discriminatorily dis-
charged, Supervisor Gerardo Castellonese had informed them
to stop talking about the Union because something big was
going to happen to them. Counsel Keiler objected, claiming
that the statement was not independently alleged as a Section
8(a)(1) violation and asking, ‘‘How much background do we
have to have?’’ (Tr. 54.) When counsel for the General
Counsel responded that the testimony went to establishing
animus, in light of Keiler’s objection, I asked, ‘‘Is that estab-
lished by the prior decisions?’’ and then, ‘‘Isn’t that estab-
lished by the prior decisions?’’ The question was designed
to elicit the position of counsel as to whether there was merit
to Respondent counsel’s objection that, in effect, animus had
been established by prior Board Orders issued against Re-
spondent. Counsel for the General Counsel agreed animus
had been established in the prior decisions, but that she did
not think it was enough. Respondent counsel did not re-
spond, nor did he indicate in any way that my inquiry was
improper. In those prior Board Decisions and Orders, Con-
trol Services, 303 NLRB 481 (1991), enfd. mem. No. 92–
3069 (3d Cir. 1992), and Control Services, 305 NLRB 435
(1991), in which case Keiler represented Respondent, the
Board concluded that Respondent had violated the Act by re-
fusing to bargain with the Charging Party by refusing to
meet, refusing to furnish relevant information, denying union
access, unilaterally reducing wages and hours, suspending
constructively and otherwise discharging employees, barring
employees from wearing union insignia, and by maintaining
in force rules prohibiting employees from engaging in union
solicitations and distributions during working hours or at any
location on the premises of Respondent’s customers. A num-
ber of these violations were committed at locations and in-
volve some of the same employees whose rights are alleged
to have been violated in a similar manner in the instant pro-
ceeding.
As the law makes clear, prior unfair labor practices en-
gaged in by the same respondent, can properly be noted as
background, Barnes & Noble Bookstores, 237 NLRB 1246
fn. 1 (1978), may bolster a finding of union animus in the
current proceeding, Bronx Metal Polishing Co., 276 NLRB
299 (1985), and have been relied upon successfully by the
General Counsel in establishing hostility toward union activi-
ties, Pottsville Bleaching Co., 303 NLRB 186 (1991). In
Berry Schools, 239 NLRB 1160 (1979), the Board, at 1162
fn. 10, noted that it was proper for the administrative law
judge to take official notice of a prior decision it had issued
a year before against the same respondent and accepting it
as proof of animus in the instant proceeding, citing Barnes
& Noble Bookstores, supra, as well as Kenworth Trucks of
Philadelphia, 236 NLRB 1299 (1978). The courts, in affirm-
ing Board Orders have also approved the use of prior viola-
tions in establishing an employer’s antiunion stance and as
background evidence concerning its motive in dismissing
employees in the current case. NLRB v. Hale Container Line,
943 F.2d 394, 398–399 (4th Cir. 1991). In this proceeding,
the General Counsel in her brief has cited both Board deci-
sions as establishing Respondent’s contemporary animus to-
ward the Union. Animus alone, however, may not, without
the consideration of other factors, establish unlawful motive
433CONTROL SERVICES
in discharging employees or engaging in other Section
8(a)(3) or (5) conduct. Thus, Respondent’s reliance on the le-
gitimate question I asked of counsel hardly shows a pre-
determination on the issue of animus, much less on any of
the violations alleged against Respondent.
Attorney Lew also contends in his motion that I exhibited
‘‘an inexplicable open hostility’’ toward him by admonishing
counsel for allegedly ‘‘signalling’’ the witness and appar-
ently thereby harbored a bias toward his client. My conduct
consisted of admonishing Respondent’s counsel for alerting
the witness to what may have appeared to him to be a more
favorable response if his objection to the question asked in
cross-examination was denied. Lew is way off base if he be-
lieves any scolding of counsel shows a disposition in favor
of or against the merits of either party’s case. As noted by
the Court in NLRB v. Color Art, Inc., 929 F.2d 407, (8th Cir.
1991), disagreements between lawyers and judicial officers
are though regrettable, not uncommon, but they do not con-
stitute bias. Even the appearance of a certain hostility or im-
patience by the administrative law judge toward the company
or its counsel did not affect the fairness of the hearing or the
integrity of the record. Soule Glass & Glazing Co. v. NLRB,
652 F.2d 1055, 1113 (1st Cir. 1981). In any event, my admo-
nition was justified. Lew’s conduct on this occasion con-
sisted of his immediately following an objection to a ques-
tion posed by the General Counsel on cross-examination with
a statement recounting what he understood a document in
evidence as well the witness’ prior testimony had established.
The General Counsel had asked the Respondent witness,
Gerardo Castellonese, who had successfully recommended al-
leged discriminatee Martha Arismendi be discharged follow-
ing her alleged failure and refusal to clean a water fountain,
‘‘so, you allowed her 20 minutes to clean the water foun-
tain?’’ Lew objected, but added ‘‘the document that’s in evi-
dence, as well as the witness’ testimony, and counsel just
cited it, is that she outright refused to do it. There was noth-
ing to wait for later, and said fire me.’’ (Tr. 998.) At the
point that the General Counsel had posed the question, she
had every right to receive in cross-examination, the witness’
immediate response, without having the witness first re-
freshed on either his prior testimony or an exhibit,
Arismendi’s termination notice. I therefore, overruled the ob-
jection. The witness’ credibility was being tested at a crucial
time immediately preceding the alleged discriminatory dis-
charge and the record should have been free of any sugges-
tion of an answer, whether based on prior testimony or ex-
hibits. My comments make clear that I was not asserting
Lew’s conduct was deliberate but that whether or not the
comments were intentional they were improper. I should also
note that my remarks were not made in a vacuum. Lew had
previously asked a number of leading questions of Respond-
ent witnesses, on one occasion of Supervisor Salvatore Toppi
on the subject of the legitimacy of Respondent’s reason for
removing Juan Perez from its payroll, which led me on that
occasion to warn Lew that although I had not said anything
previously, the area he was getting into was very important
now, and he had to watch himself. Otherwise, the witness
would be tainted. (Tr. 785.) In spite of my warning, Lew ini-
tially persisted in attempting to frame a question suggesting
the answer before finally posing a proper, nonleading ques-
tion.
Respondent further claims that on these occasions as well
as others I chose to note my objection to the question posed
in the absence of any objection from counsel to the General
Counsel, and asserts this as a form of improper assistance to
the General Counsel. To the contrary, by my rulings I was
regulating the hearing process to insure that, especially, in
crucial areas relating to central issues in the case, on the
events and reasons leading to the discharge of alleged
discriminatees; for example, the integrity of the record was
preserved. That authority and responsibility is spelled out in
the Board’s Rules previously cited and is inherent in the
hearing process itself so as to avoid abuse of the process. Of
course, it must be exercised with restraint, and it was so ex-
ercised on these occasions. In so acting, I was favoring nei-
ther party but rather, preserving the integrity of the hearing
itself. Other instances of my issuing rulings independent of
objections appear (e.g., at Tr. 896, 586, and 686).
On another related occasion, in another effort to preserve
the integrity of the record, I pointed out to the General
Counsel that a document Respondent had a witness identify
and which he was now offering into evidence, was objection-
able hearsay, and thus inadmissible. It was a contempora-
neous memorandum of the events relating to Martha
Arismendi’s alleged work failings which the witness, Super-
visor Gerardo Castellonese, had testified he had prepared for
his own purposes and had not been directed by Respondent
to keep in the regular course of the employer’s business.
While counsel for the General Counsel had initially said she
had no objection to admission of the document, after my
comment, she then requested an opportunity to voir dire the
witness, following which she noted her objection and her
prior misunderstanding as to the nature of the document, and
I rejected the document. (Tr. 899.) The inclusion of the doc-
ument in the record for the purpose proposed by Lew ap-
peared to be, on my initial examination of it, prejudicial
since it permitted the witness’ self-serving recital to supple-
ment or duplicate his own testimony on the matter and I felt
obliged to act to exclude it without objection by the General
Counsel.
Subsequently, at the close of hearing that day, upon a fur-
ther review of the document, I realized that it also contained
the witness’ pretrial statement to matters which could be
deemed contrary to his direct testimony to that point, and
thus could reflect on his credibility. The following morning,
before opening the record, I called counsel into chambers,
and explained that upon reconsideration I now believed the
document was admissible but for the purposes of impeach-
ment and, suggested that counsel for the General Counsel
mighty wish to offer it during her cross-examination, which
she later did. It is not uncommon for a single exhibit to
present this dilemma. While I could have offered the docu-
ment as my own exhibit, Section 102.35(k) of the Board’s
Rules authorizes me to do that, I felt obliged to make coun-
sel aware of my thoughts on the matter and presented the op-
portunity to the General Counsel to seek to use the document
in her own examination of the witness. Just as an affidavit
of a witness may be received in evidence for the purpose of
weighing conflicts with trial testimony as an aide in ulti-
mately determining the witness’ credibility, this memoran-
dum, when offered, was received in evidence for the same
purpose, and its receipt did not foreclose that weighing proc-
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ess and ultimate determination which would only begin after
the close of the record.
In so informing counsel, I was not predetermining the wit-
ness’ credibility but only providing an opportunity for his
credibility to be tested by another piece of evidence. I neither
disclosed my ultimate disposition of the witness’ credibility
for I had none, nor could I until the witness had fully testi-
fied and all other relevant evidence had been received and
the record closed.
Lew, who of course was privy to the discussion in cham-
bers, failed to object to our off-the-record discussion when
the hearing convened that morning or at any later point in
the hearing. A timely objection by him would have provided
me with an opportunity to explain my actions on the record
at the time. As the Board has noted in another instance in
which a respondent later relied in claiming judicial bias or
prejudice based on improper off the record remarks by the
administrative law judge, ‘‘it was incumbent upon counsel
for Respondent immediately to request that any alleged com-
ments be repeated on the record, to make a timely objection
thereto, and to move that the Administrative Law Judge dis-
qualify himself.’’ Pioneer Natural Gas Co., 253 NLRB 17
fn. 2 (1980). See also Roto Rooter, 288 NLRB 1025 fn. 2
(1988). While in those cases, the claims of impropriety were
not made until after the judge had issued his decision, Re-
spondent counsel’s failure to object at the time of the off-
the-record meeting undermines the bona fides of its claim
and should be similarly rejected here as untimely.
Respondent also claims that, during the cross-examination
of Supervisor Gerardo Castellonese, I stated in a ‘‘loud and
harsh voice’’ that the witness’ testimony was unbelievable
and similarly that during the cross-examination of Walter
Solari, another Respondent witness and supervisor, I exhib-
ited a predisposition to credit the General Counsel’s witness.
In support of the latter claim, Respondent’s counsel points to
my questioning of this witness with respect to whether alleg-
edly unlawfully discharged employee Juan Perez had taken
any vacation time. Careful review of the record demonstrates
that in both instances I was merely exercising my ability to
make credibility determinations. There is little doubt that as
administrative law judge I possess broad powers to question
witnesses in order to ascertain their credibility. Indianapolis
Glove Co., supra. The breadth of this power is seen in Sa-
hara Las Vegas Corp., 297 NLRB 726 (1990). In this case
the judge participated in the examination of witnesses and re-
solved all important factual conflicts in favor of the General
Counsel’s witnesses.
As to Castellonese, I stated that I had serious questions
about the witness’ testimony on one area of dispute and thus
was attempting to clarify discrepancies and confusion found
in the testimony. The witness had already admitted to the
General Counsel an important discrepancy between his testi-
mony in the criminal trial of Seth Grodowsky, the union or-
ganizer, as to events leading to his eventual prosecution for
harassment and offensive language alleged as an unfair labor
practice in this proceeding, and his testimony on direct ex-
amination. (Tr. 953 to 956.) In light of that conflict I placed
the witness on notice that his prior answers placed in jeop-
ardy other testimony he gave on direct related to the ante-
cedents of the dispute which led to Grodowsky’s prosecution
and that his answer to my questions could help resolve
doubts as to his credibility. This questioning did not disclose
my preliminary views or any views at all as to his credibility
generally or as to the credibility of any other portions of his
testimony. Examination of the record evidences this apparent
discrepancy and confusion.
The use of the word ‘‘tortuous’’ to describe this witness’
response on another line of questioning represented to a fair
degree the witness’ inability to respond directly to the ques-
tion posed, but may also have shown his inability to express
himself with clarity in the English language, as immediately
noted by Attorney Lew. (Tr. 1014.) Lew’s comment shows
his understanding of Castellonese’s shortcoming, but that did
not make it any easier for me to follow the witness’ account,
and certainly does not prove the appearance of prejudice and
partiality. See Al Bryant, Inc., 260 NLRB 128 (1982) (al-
though the Board expressed the view that some of the state-
ments made by the administrative law judge may have been
ill-chosen, there was no evidence that he prejudged the case,
made prejudicial rulings, demonstrated bias, hostility and
prejudice toward Respondent’s counsel). See also, Weather
Shield Mfg., 292 NLRB 1 fn. 3 (1988).
Similarly, the Respondent’s claim that I exhibited a pre-
disposition to credit the General Counsel’s witnesses and dis-
credit Walter Solari does not establish the appearance of bias
or partiality. Again, a careful review of the record indicates
that I was attempting to clear up an important factual matter,
by asking Respondent’s witness if he had any evidence to
rebut Perez’ prior uncontradicted testimony that he had taken
no vacation time, a conclusion which Walter Solari had not
disputed on his direct examination. The fact that Perez had
not previously taken a vacation does not lead inescapably to
the conclusion that he was scheduled for one on October 11,
1991, as Lew argues, or that he had Respondent’s permission
to be absent for 1 week, an absence for which he was alleg-
edly fired. But the question posed, based on the then state
of the record, and Solari’s response would aid me in ulti-
mately resolving the issue of the witness’ credibility in deny-
ing that Perez had prior permission to take a week’s leave.
Thus, these two claims do not indicate the bias and partiality
of the administrative law judge. Rather they were instances
in which as judge I was obliged to make credibility deter-
minations which, in turn, would aid me in resolving impor-
tant factual conflicts.
Respondent also alleges that I expressed hostility towards
Respondent’s witnesses. One such alleged instance occurred
when I questioned Castellonese about the difference between
‘‘labor board’’ and ‘‘labor department.’’ The other instance
took place between myself and Salvatore Toppi.
A close review of the record shows that I was not acting
in a hostile or disparaging manner towards these witnesses,
rather I was closely questioning them about matters affecting
their credibility under my authority to cross-examine wit-
nesses contained in Section 102.35(k) of the Board’s Rules
and Regulations. The exchange with Castellonese, regarding
the difference between ‘‘labor board’’ and ‘‘labor depart-
ment,’’ was an attempt to clarify apparent discrepancies in
the witness’ testimony. Prior to this exchange Castellonese
testified that he was not confused about the meaning of the
term ‘‘labor department’’ and that he was confident that the
discharged employee said she would file a report with the
‘‘labor department’’ (Tr. 993, 1000–1001.) Yet, in a written
warning, issued to the employee, Martha Arismendi, a week
before her discharge, Castellonese had written that in re-
435CONTROL SERVICES
sponse to a specific cleaning assignment she had said she
was going to call the ‘‘Labor Board.’’ In the exchange cited
by Lew, the witness testified that ‘‘labor board’’ and ‘‘labor
department’’ means the same thing to him. My cross-exam-
ination was warranted as an attempt to clarify the apparent
discrepancy in Castellonese’s testimony. See Logan County
Airport Contractors, 305 NLRB 854 (1991). I was also then
aware that in Control Services, 305 NLRB 435 (1991), the
Board, at footnote 4, had referred to the statements of a su-
pervisor, (Gerardo) Castellani (contrary to fact and law) that
the employees at Automatic Switch, from which location em-
ployee Martha Arismendi was illegally fired, no longer had
a union, as establishing further evidence of antiunion animus.
It is highly likely that ‘‘Castellani’’ and ‘‘Castellonese’’ are
one and the same person and thus, Castellonese’s motive in
firing Arismendi a second time in the instant proceeding was
subject to close scrutiny. See Logan County Airport Contrac-
tors, supra.
Similarly, my cross-examination of Salvatore Toppi was
permissible. Lew admitted that I had engaged the witness in
extensive questioning to determine the witness’ truthfulness
(Lew’s affidavit, p. 7) and that the witness had ‘‘a little bit
of a language problem’’ (Tr. 824). Even if it were true that
I grew impatient with the witness and demanded answers,
this would be insufficient to establish bias. Weather Shield
Mfg., supra. Supervisor Toppi, who was found in March
1990 to have interrupted a union meeting held in the em-
ployee parking lot at Automatic Switch and, who, along with
a security guard, threatened to call the police to remove
them, in Control Services, supra, did not testify in that pro-
ceeding. His testimony before me was unintelligible at times
because of his inability to speak coherent English. Yet, Re-
spondent called this witness knowing that his credibility on
significant factual matters would be challenged by the Gen-
eral Counsel, and did not request to have him testify through
an interpreter. His appearance placed a burden on both coun-
sel and the judge to understand and interpret his statements
and physical responses. This is the context in which I sought
to obtain clarification of his testimony in various areas.
Lew’s characterization of my later questioning of the same
witness as ‘‘openly questioning the witness’ truthfulness’’ is
not accurate. Again, not only was Toppi’s broken English a
handicap to accurately determining his responses and clarify-
ing his earlier testimony, but Toppi had also acknowledged
that he did not fully understand the Spanish language in
which Castellonese in his presence, and Arismendi were con-
versing about specific cleaning assignments. When Lew
interjected a comment during my later examination of the
witness he noted that it was not an objection. (Tr. 855.) In-
stead, he attempted to bring out prior testimony of the em-
ployee, Martha Arismenti, in the presence of Respondent’s
witness, thus engaging again in conduct which I had earlier
disapproved. I noted now that his comment was out of order
and he should resume his seat (Tr. 856), surely proper judi-
cial responses at this point.
Lew finally objects to my statement appearing at transcript
1104 as evidencing assistance to the General Counsel. In
fact, it is apparent that after counsel for the General Counsel
had stated she was withdrawing a previous question asked of
the witness, discharged employee Leandra Perez, I noted,
‘‘Tell the witness what she said’’ (Tr. 1104) not to counsel
for the General Counsel as claimed by Lew, but to the offi-
cial interpreter so that the witness could follow accurately
that the prior question, which had led her to seek clarifica-
tion, was being withdrawn and another question was about
to be posed to her.
Based on the foregoing analysis of Respondent’s motion,
I reject the claims made therein and deny the demand that
I disqualify myself on the grounds of personal bias and dis-
qualification.
Upon the entire record in the case, including my observa-
tion of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent Control Services, Inc., a corporation with an
office and place of business in Secaucus, New Jersey, has at
all times material herein been engaged in the provision of
building services, including cleaning, janitorial, and mainte-
nance services at various locations within the State of New
Jersey. During the preceding 12 months, Respondent, in the
course and conduct of its business operations, performed
services valued in excess of $50,000 in States other than the
State of New Jersey. During the same period, Respondent, in
the course and conduct of its business operations, provided
services in excess of $50,000 for Automatic Switch, an em-
ployer located in the State of New Jersey and directly en-
gaged in interstate commerce. Respondent Control Services,
Inc. admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Respondent admits, and I also find, that the
Charging Party Union, Local 32B-32J, Service Employees
International Union, AFL–CIO (Local 32B or Union), is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a service company which provides cleaning
and maintenance services to corporations which own or oper-
ate office buildings and factories in the State of New Jersey.
The Charging Party Union represents a unit of approximately
30 cleaning employees at Automatic Switch’s factory site lo-
cated in Florham Park, New Jersey, and units of employees
who clean on site at Bloomingdale’s Department Store and
Continental Plaza in Hackensack, New Jersey. The Union,
Local 32B-32J, had previously also represented cleaning em-
ployees employed at Respondent’s work locations at facilities
of Exxon Research and Engineering Company located in
Clinton, Linden, and Florham Park, New Jersey, but ceased
such representation when Respondent’s cleaning contracts at
those sites ended and were not renewed. The Union has also
been engaged in an ongoing organizing campaign at Re-
spondent’s Automatic Switch work location.
As earlier noted, in two prior Board proceedings, Control
Services, Inc. has been found to have violated the Act in nu-
merous ways at various of its New Jersey worksites related
to its conduct in opposing union organizing efforts and union
attempts to bargain with it. In Control Services, 303 NLRB
481 (1991), the Respondent was found to have refused to
bargain and withdrew recognition in six bargaining units, in-
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cluding, inter alia, the Automatic Switch unit, refused to pro-
vide union access to employees at Bloomingdales and Auto-
matic Switch, refused to furnish relevant information to the
Union and to have unilaterally reduced wages and other ben-
efits, resulting in the unlawful constructive discharges of
more employees who refused to continue employment under
the reduced terms, ordered its employees to remove union in-
signia, and unlawfully discharged another employee. In Con-
trol Services, 305 NLRB 435 (1991), enfd. mem. No. 92–
3069 (3d Cir. 1992), the Respondent was found to have vio-
lated the Act by discriminatorily discharging Martha
Arismendi, named as an alleged dischargee in the current
proceeding, and another employee, Jose Carbonell, at its
Automatic Switch location, suspending and discharging other
employees at Exxon-Linden, maintaining invalid no-solicita-
tion and no-distribution rules, threatening employees if they
wore union buttons, prohibiting the display of a prounion
sticker and threatening employees with discharge and un-
specified reprisals.
As noted by Administrative Law Judge Raymond Green in
Control Services, supra at 438, on May 31, 1990, a Federal
district judge issued an order in a Section 10(J) proceeding
instituted by the Board, directing bargaining, among other re-
lief. The present record makes clear that the 10(j) proceeding
included an order mandating union access to employees at
the Automatic Switch site, among other sites.
The relevant paragraph of the 10(j) order
Grant[s] union representatives access to Respondent
company’s employees at the jobsite located at Auto-
matic Switch located at Hanover Road, Florham Park,
New Jersey, and an area to be designated by Automatic
Switch for ten minutes during work time at the begin-
ning or at the end of the employees’ work shifts, said
access in the normal course to be limited to two rep-
resentatives twice a week. Such access shall not inter-
fere with the operation or employees of Respondent
Company’s customers, but rather is being granted to en-
able the union to perform its representative duties pur-
suant to the court’s May 31st order. In the event the
union seeks access not in the normal course it will re-
quest the consent of Respondent company, which con-
sent shall not be unreasonably withheld.
In a case heard by me in November 1992 involving the
same parties, I made the following conclusions which are
pending before the Board on appeal:
1. That the Respondent violated Section 8(a)(1) by threat-
ening its employees employed at its AT&T Lincroft, New
Jersey worksite with discharge and other unspecified repris-
als.
2. That the Respondent violated Section 8(a)(1) by main-
taining rules prohibiting employees from engaging in union
solicitations or distributions during working hours or at any
locations on the premises of its customers.
3. That the Respondent violated Section 8(a)(1) and (3) of
the Act by giving a written warning to its employee, Thomas
Young, employed at its AT&T Lincroft, New Jersey site.
4. That the Respondent violated Section 8(a)(1) and (5) of
the Act by failing and refusing to recognize and bargain with
the Union at the same location.
B. The Alleged Unlawful Threats, Harassments,
Warnings, Criminal Complaint, and Discharges of
Employees Leandra Perez, Juan Perez, and
Martha Arismendi
Leandra Perez, the wife of employee Juan Perez, testified
that she worked for Respondent at both Automatic Switch,
from 5:30 p.m. to 9:30 p.m. and at its Sandoz Pharmaceutical
location on the day shift from 7 a.m. to 3:30 p.m. She was
assigned to clean carpets, empty garbage, and dust offices.
As noted earlier, the Union represented Respondent’s
cleaning employees in separate bargaining units located at
various worksites of Respondent in the State of New Jersey.
The Union’s predecessor, Local 389, SEIU, AFL–CIO, had
had bargaining agreements covering six of these units which
had expired during the 1980s but which the Charging Party
Union was seeking to renew with Respondent. The six units
in which agreements had expired but where the Union was
demanding bargaining were the subject of the unfair labor
practice proceedings previously described and had been the
subject of the 10(j) proceeding instituted by the Board. At
one of the sites, Automatic Switch, the last agreement had
run from November 11, 1986, to October 31, 1988. Aside
from the 10(j) relief providing for union access to employees
at the sites, which relief had expired by its terms after having
been extended for an additional 6 months, on May 31, 1991,
the expired agreement with Automatic Switch provided, in
paragraph 21, that ‘‘the Union’s representatives shall at all
times be permitted to confer with the employees at and on
the premises of the Employer.’’
The Sandoz, New Jersey location was not a subject of the
prior unfair labor practice proceedings and the Union did not
represent Control Services employees there in collective bar-
gaining.
According to Leandra Perez, she learned of the Union’s
presence at Automatic Switch in January 1991. Gerardo
Castellonese, assistant manager for Control Services at its
Sandoz Pharmaceutical site and supervisor of various other
sites, including Automatic Switch, gathered all the Automatic
Switch employees together in the office where employees
sign in and told them in Spanish to stop talking about the
Union because something big was going to happen to them.
The meeting was held as employees were entering the facil-
ity to go to work.
In March 1991, a union representative, Seth Grodowsky,
visited the Automatic Switch site and Leandra met him and
discussed the Union. One day later that month, while gather-
ing at the entrance at about 5:15 p.m. before signing in to
work, she was talking with other employees about the bene-
fits the Union had provided to employees. Supervisor
Salvatore Toppi joined the conversation and in Spanish said
that the Union was not good; what the Union wanted was
the money of the monthly payment, Leandra and the other
employees said that if that was the case, they didn’t want to
be in the Union.
The following day, at 9:30 p.m. getting ready to leave,
Leandra with a few other employees stopped to speak with
Grodowsky at the entrance to the Automatic Switch facility.
Toppi came up and told her to leave the building and talk
in the parking lot. She left, accompanied by Grodowsky, her
husband Juan, and a few other employees. The next day,
Leandra spoke to a group of employees as they waited to
sign in at 5:15 p.m., telling them that the Union was bene-
437CONTROL SERVICES
ficial to them, and it defended the employees. Toppi, who
had been nearby, now approached and told Leandra that she
had two faces. When she asked why, he explained that be-
fore she had said she didn’t want the Union, and now she
did want to get into the Union.
The Union had been unable to enter the Sandoz Pharma-
ceutical plant location to speak to Respondent’s cleaning em-
ployees there so the Union asked Leandra, who worked there
days, to provide fellow employees with the Union’s tele-
phone number, and she did so when they asked for it. Other
testimony confirmed that Sandoz employees who telephoned
the Union had obtained the number from Leandra.
At the Sandoz location, Respondent employed about 60
employees. Leandra Perez was assigned to building Nos. 403
and 404 along with five other employees. On April 19, 1991,
a Friday, Leandra testified that her supervisor, Graciela Solar
approached her between 2:30 and 3 p.m., asked her to do
Graciela a favor, dispose of 45 cardboard boxes in the base-
ment of No. 404, by folding them and placing them in a
large moveable containers and taking the containers to an
area outside the first floor where the folded boxes are picked
up by trucks for recycling. According to Leandra the boxes,
now empty, had contained computers or computer compo-
nents, were large in size and some were stocked inside other
boxes. She had not been given a deadline to complete this
assignment.
Leandra did not do this work on April 19 because of a
lack of time and the large number of boxes involved. On the
following Monday, April 22, Leandra did not perform the as-
signment because of the time involved in vacuuming and
cleaning the first, second, third, fourth, and fifth floors to
which she was regularly assigned. Solar did not appear at the
building that day.
Leandra Perez swore she disposed of all of the boxes on
Tuesday, April 23, by not performing part of her regular as-
signment. According to Leandra, although employees were
required to dispose of boxes accumulated on their work
floors, the basement where the boxes were accumulated was
not assigned to her for cleaning but rather to a Colombian
male employee. Further the boxes Leandra was used to fold-
ing and removing were small ones which had held papers
and were left in the offices where she cleaned. When she
went to punch out on April 23, Graciela Solar told her in
Spanish she was fired because she hadn’t done the job on
Friday when she had been assigned to do it. When Leandra
told Graciela she had done the job, Graciela gave her a piece
of paper to sign with writing in English. Leandra cannot read
English, could not read the paper, and refused to sign it. She
did not receive a copy, nor was she given anything in Span-
ish explaining her firing.
Leandra then went to see Walter Solari, Respondent man-
ager, in his office at Sandoz and asked in Spanish why had
they fired her because she had done the job. Solari responded
that he couldn’t do anything for her because Graciela had al-
ready done it.
Leandra continued as an employee at Automatic Switch
until she took an extended trip out of the country for per-
sonal reasons beyond the 3 months’ time Control Services
had permitted her and thereby lost her job in January 1992.
In the summer of 1991, Leandra testified that Salvatore
Toppi had told employees at Automatic Switch about a raise
at 9:30 p.m. in the office where employees sign in and out.
When informed of the raise, Leandra said how great, they’re
getting an increase. Toppi responded that the increase was
coming from Control and not through the Union.
Previously, Leandra described a progressive discipline sys-
tem in place by Respondent under which an employee would
be fired after receiving three warnings for any infractions.
She had been told this by Solar. Certain conduct, such as
stealing, reporting drunk and under the influence of drugs,
violence toward a supervisor, can result in immediate dis-
charge. Leandra acknowledged receiving prior warnings, one,
issued September 28, 1990, at Sandoz, written in both
English and Spanish, resulted in a 1-day suspension for tak-
ing her workbreak before 8:50 a.m. The warning noted that
Leandra had received several earlier verbal warnings for the
same conduct but Leandra disputed that at the hearing or that
she received the written warning, or that she had signed the
warning acknowledging its receipt. Although what purports
to be her signature appears on the warning form Leandra
Perez’s signature on her employment application is signifi-
cantly different from that on the warning form. On the occa-
sion of this warning, Leandra explained that Leandra and two
other employees had guided their breaktime by the cafeteria
clock which read 9 a.m. whereas Manager Solari’s watch
read 8:55 a.m. Another warning, issued to her on August 31,
1990, was for relaxing with a fellow employee in a con-
ference room on working hours, conduct for which she will
be suspended next time. It was written in English and Span-
ish and contains the initials L.P. Another warning issued Jan-
uary 29, 1991, notes that Leandra’s supervisor looked for her
all over her section because the job wasn’t finished but could
not find her, and if not in her work area next time she will
be suspended. Leandra was not questioned about this warn-
ing, but it contains her initials written differently than those
that appear on the August 31, 1990 warning. A final warning
introduced in evidence by the General Counsel, was issued
February 14, 1991, and notes that Leandra was suspended at
Automatic Switch on February 6 because of four absences
between January 31 and February 5, on only one of which
did she call in to her supervisor, and was again apparently
suspended 1 day for being absent without notification on
February 13, although she knew the company phone number
and requirement to notify her supervisor timely that she
would not be at work. This warning was signed with
Leandra’s name. Leandra was not questioned about this
warning.
During her cross-examination, Leandra acknowledged that
when she was fired from Sandoz, in April 1991, not only did
she continue working at Automatic Switch, but her husband
did so as well, until his termination later in October 1991.
Leandra also now recognized her signature on another warn-
ing, dated June 8, 1990, issued because of her failure to wear
Sandoz I.D. during worktime. The warning notes the next
time she will be suspended and with the third warning she
will be separated. But Leandra vigorously disputed that she
had received another warning and 2-day suspension, dated
May 16, 1989, for laughing and crying and interrupting Su-
pervisor Solar’s conversation with another employee.
On cross-examination Leandra insisted that Solar had
asked her as a favor to split and move the boxes but to finish
her own job first. If Solar had asked her to do the job in
a hurry, she would have had to do it then, at 3 p.m. on Fri-
day, April 18. However, in a pretrial affidavit in which
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Leandra describes the conversation during which Solar gave
her the work assignment, Solar did not ask her to do it as
a favor, but rather told her to get a cart and dispose of about
45 large empty boxes.
Leandra also explained that the 2-day suspension she re-
ceived at Automatic Switch for allegedly failing to call in
when absent had to do with an accident to her car and her
inability to get a ride to work, and she had notified both
Solari and Castellonese of her absences, but they did not in-
form Toppi, her immediate supervisor.
Respondent called a number of witnesses to counter
Leandra Perez’ allegation of unlawful discharge. Employee
Caesar Alfredo Angeles testified that he had worked at
Sandoz in building 403 in 1990 and 1991 along with
Leandra Perez. He described himself as a leadman who acted
as liaison between the workers and the supervisor. He con-
firmed that folding and removal for recycling of cardboard
boxes was part of the employees’ regular duties. On occa-
sion, he saw Leandra leave boxes or pile them up in a corner
and was obliged to tell her to fold and remove them; on
many other occasions she performed this work without re-
minding.
On cross-examination, Angeles corroborated Leandra that
the cleaning employees were responsible for folding and re-
moving empty boxes only in their assigned work areas while
he was responsible all over the building because he was in
charge. On the occasions he reminded Leandra of her recy-
cling assignment, he did not make notes or report the inci-
dent to supervision; his intention was to solve any work
problems directly with the employees. He agreed that when
approached about the boxes, Leandra would sometimes tell
him in excusing her delay, that she was rushed in completing
her other assignments, but he maintained that Leandra just as
the other employees, had sufficient time to do all her assign-
ments.
Employee Francisco Rodriguez knew Leandra Perez; they
had the same supervisor, Graciela Solar and he worked on
two of the same floors on which she worked, the first and
fourth. He observed that she sometimes split empty boxes
and sometimes she did not. He also overheard Leandra and
Solar arguing while on the fourth floor of building 404,
shortly before she was fired. He was about 20 or 30 feet
away and was leaving work. He heard Solar tell Leandra she
had to split the boxes and Leandra respond that she couldn’t
do it for personal reasons, as a woman she didn’t want
women to get on top of her. He then saw Solar leaving from
a distance.
On cross-examination, Rodriguez claimed he was assigned
to polishing floors because he had heart attacks, but that he
was in charge of overseeing the splitting of boxes. If an em-
ployee did not break up their boxes after he tells them once
or twice he informs the supervisor. Rodriguez maintained
that he and the other employees were supplied by Sandoz
with a special pop-up razor blade to slit the boxes. He also
had received instructions written in both English and Spanish
provided by Sandboy to Control Services as to how to slit
the boxes and dispose of them. The breaking up of quite
large boxes, which contained computers, refrigerators, or
cabinets and were fastened with metal clamps, were not as-
signed to women employees, and were sometimes left by the
men employees as well. The ones all employees split with
the special blades and folded for disposal were taped to-
gether.
Graciela Solar testified that the assignments to pick dis-
carded cardboard boxes out of the trash, cut the tape, fold
them, place in cargo area hampers and take to the area where
they were picked up, began early in 1990. The employees are
required to dispose of boxes accumulated in their work areas.
The razor blades are routinely distributed to the 20 odd em-
ployees under her supervision in the four buildings, 401, 402,
403, and 404, of which she was in charge from 1988 to Sep-
tember 1991. She gave Leandra Perez razor blades three
times, after she twice misplaced them.
The discarded boxes came in many different sizes, but
very large or heavy boxes and those with metal binding were
not handled by women employees but by male porters who
were especially assigned. The small and medium-sized
boxes, up to 2 to 3 feet in width, were bound in tape which
employees cut, folded, placed in wheeled hampers, and taken
by elevator to the first floor loading dock.
Solar called Leandra’s attention, many times, to her failure
to cut, fold, and properly discard the empty boxes in her
work areas, but many times she performed this duty without
prompting. (The record fails to show that any warnings were
issued to her for this failing.) Five days before April 23 (on
Thursday April 18), before lunchtime, Solar was checking
building 404 and saw around 10 or 15 medium-sized boxes
on the first floor (after first placing them on the fourth floor)
by Leandra’s work area, where the offices were located. The
boxes were 18 to 24 inches wide, they were open and they
had no wording on them. The two of them were alone. Solar
told Leandra to cut them open, fold, and put in the cardboard
hamper, Leandra replied ‘‘it’s all right. I’m going to do it.’’
The following day, Friday, Solar was not on the first floor
of building 404. Neither was she there on Monday, April 22.
On Tuesday, April 23, Solar went to the first floor a little
before noon and saw the boxes exactly as they had been the
prior Thursday. She located Leandra on the second floor
talking with another porter and brought her back to the first
floor. When Solar then asked Leandra why she didn’t open
up and fold these cases 5 days ago, Leandra screamed out
‘‘I don’t supposed to do anything like that, because it’s not
my job. I don’t gonna do it’’ [sic]. Solar now placed Fran-
cisco Rodriquez nearby as the argument continued. Leandra
repeated her screamed remarks and Solar just left without
saying anything more.
Solar next went to see Manager Walter Solari at his office
in building 202 and told him what had happened, starting
with her orders to Leandra to dispose of the first floor boxes
5 days ago and continuing with her screamed refusal to do
work uttered a short while ago. Walter asked her opinion and
Solar recommended that Leandra be fired because she didn’t
respect Solar’s orders. Walter approved and Solar prepared
a handwritten warning form, dated April 23, 1991, in Span-
ish and English directed to Leandra Perez in which she re-
counted the events noting that when she reminded Leandra
today about the request to break some cases, she had a bad
attitude and also started to tell her that she couldn’t do it and
these were reasons to be terminated. Solar then signed as the
supervisor making the report.
Solar showed the writing to Solari, he approved it, and she
waited at the clock for Leandra. Shortly before 3:30 p.m.
Solar took Leandra off the line while waiting to punch out,
439CONTROL SERVICES
handed her the paper, and told her she was terminated.
Leandra read it and said she was going to refuse to sign it.
Solar believed Leandra took a copy of the form and then
punched out. Solar told Solari what had happened and he
wrote on the warning and termination notice ‘‘Refuse to
sign’’ and, then placed Solar’s initials ‘‘G.S.’’ below the
entry.
As noted earlier, Leandra Perez, although fired by Control
Services at Sandoz, was not terminated at Automatic Switch,
where Solar had no supervisory duties or function.
Solar described holding training meetings monthly with
the cleaning employees she supervises at four Sandoz build-
ings at which recycling guidelines, among other printed
guidelines in English and Spanish, provided supervisors re-
garding safety, security, fire, radioactive materials, among
other items, were discussed. At these meetings Solar in-
structed employees on how to break up boxes using the razor
blades issued to them and reissued as employees lost or mis-
placed them.
On cross-examination, Solar agreed that some smaller or
medium-sized boxes to be disposed of contained metal sta-
ples as well as tape holding the sides together, but that they
could be removed or opened by hand. Solar defined a me-
dium-sized box as measuring roughly 2 feet 10 inches by 2
feet 4 or 5 inches; small boxes were up to 18 inches in size.
These medium-size boxes may have held equipment such as
computers and may have been marked with the name of the
manufacturer and a short description of the item. Solar also
clarified that in addition to the many offices on the first and
fifth floors which Leandra cleaned and vacuumed, she also
was assigned to vacuuming and removing garbage from the
library which is located on both the first floor and a portion
of the basement which is reached by a stairway as well as
a few basement offices which open on the library space
there. Caesar Angeles, a Peruvian, once a week cleaned a
laboratory located on the first floor. building 403, which ex-
tends three floors, and building 404, which has five floors,
are connected so that the same cleaning employees clean
both on the first, second, and third floors.
Solar also clarified that the boxes she assigned to Leandra
to remove on April 18 were located not on the first floor but
in the basement by an office that was in the library portion
of the floor.
When Solar heard Leandra scream on April 23 in the base-
ment of building 404 she didn’t see anybody emerge from
the basement offices nor could she recall if there were any
Sandoz employees in there at the time.
Although Solar continued to insist that she signed
Leandra’s termination warning and notice after writing her
remarks in English and Spanish and gave Leandra the origi-
nal it appears that the last word of the remarks portion,
EXPULSADA (Termination) was written over the ‘‘G’’ in
Graciela Solar’s signature. Solar’s explanation, that she wrote
the ‘‘G’’ over the word EXPULSADA in such a way as not
to disturb it is far-fetched and rejected. Thus, I find that at
the time Solar signed her name as the supervisor to the no-
tice, the Spanish portion did not appear. This evidence serves
to corroborate Leandra that she saw only a termination notice
written in English which she did not understand, would not
sign, and which she did not receive. Similarly, on the work
warning dated May 16, 1989, issued to Leandra because of
her disturbing crying and laughing, the last word of the
Spanish portion of the remarks, ‘‘Suspension,’’ is written on
a final line by itself, although there appears more than suffi-
cient space to place it at the end of the line above. See the
last word of the English remarks, ‘‘Suspension,’’ written out
to the end of the paper. However, if the word had been writ-
ten on the line above it would have been written over Solar’s
signature, thereby undermining Solar’s claim that the Spanish
portion was on the warning before she signed and presented
it to Leandra. Solar’s explanation for this discrepancy pro-
vided to the General Counsel—‘‘sometimes we don’t have
too much space—’’(Tr. 72) is contrary to the evidence pro-
vided by the document itself and is rejected. On neither of
these warnings was the original writing produced. All
Leandra’s warnings received in evidence are either xerox or
yellow (carbon) copies.
Solar’s explanation for providing Leandra with the original
termination notice, which she claimed she tore off and hand-
ed to Leandra before she was asked to sign, is also incred-
ible. Solar claimed that she would have obtained Leandra’s
signature twice, on the original she handed her to sign and
on the copy she retained. If the forms, the original white
form and the yellow copy, had remained intact, the signature
in the original would have automatically created an impres-
sion on the carbon copy, alleviating the need to obtain a sec-
ond signature.
On her direct examination, Solar had described without
prompting the boxes she saw in the building 404 basement
as medium size (Tr. 679). Now, under further examination,
Solar changed her testimony to describe them as small ones,
all the same size (Tr. 753), small boxes and there were no
medium-sized boxes (Tr. 756).
Solar also maintained that before April 23, the day of her
discharge, Leandra had never told her that the job of disman-
tling and taking empty boxes to the loading dock was not her
job and that she was surprised by Leandra’s reaction to her
questioning as to why the assignment had not been per-
formed, yet she did not inquire why Leandra took that posi-
tion or what she meant by it.
In further redirect examination by Respondent counsel
Solar described in detail the many offices, some laboratories,
and library Leandra was assigned to clean on the six levels,
including the building 404 basement. She now asserted, con-
trary to her earlier testimony, that there were no offices on
the first floor, only the library, and that rather than a few,
as she previously testified there were six to seven small of-
fices off the library in the basement which were Leandra’s
responsibility.
On further cross-examination, Solar disclosed that when
Leandra was employed computer boxes were usually left out-
side the upstairs laboratories and were being brought to the
basement by workers not employed by Control Services for
ultimate disposal. Thus, large empty boxes could have accu-
mulated in the basement for disposal at the time Leandra was
requested to remove boxes by Solar.
Manager Walter Solari testified that when Solar rec-
ommended Leandra Perez’ discharge for failing to fold some
boxes he told Solar I think it’s enough, having knowledge
of her work history and agreed to the termination at Sandoz
only. He also approved Solar’s preparation of the termination
notice. She was not fired from her job at the Automatic
Switch location because she was getting along with the su-
pervisor there and did not have many problems. Solari was
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not asked and did not dispute telling Leandra that he couldn’t
do anything for her because Graciela had already done it
(fired her).
It was the customer, Sandoz, who required that the card-
board boxes, among other materials, be prepared for recy-
cling by the Control Services employees.
Leandra Perez was recalled by the General Counsel as a
rebuttal witness. She swore that at Sandoz she never received
or saw the pop-up razor blade described and entered into evi-
dence by Respondent. She did see one other employee,
Maria, using a single-edged razor blade on the second floor
but the Company never gave her one, she did borrow one
to remove staples on the boxes she folded.
She knew that most of the 45 boxes in the basement pre-
viously held computers because she saw the computers being
removed by personnel from the boxes and taken out of the
library. They had double tops and lots of staples and some
were inside other boxes.
Leandra explained that she cut the tape and ripped the
boxes open with her hands and sometimes jumped on thick
boxes to fold them.
Leandra denied that she had ever been assigned to work
with or dispose of boxes in the basement but she had stated
that she had used a blade to open boxes in the basement, but
that these were the boxes she removed on the day she was
fired. She had also removed boxes in which library books
had been delivered and had taken them to the first floor dis-
posal area. Leandra again claimed that the boxes she was
asked to fold and remove in mid-April 1991, were located
next to the offices in the basement outside and across the
hall from the library, and were in an area assigned for clean-
ing to the male Columbian employee.
Juan Perez, Leandra Perez’ husband, like Leandra, worked
at both Sandoz, from 7 a.m. to 3:30 p.m. and at Automatic
Switch from 5:30 to 9:30 p.m., Monday to Friday. He started
work at both locations on October 11, 1988. At Automatic
Switch he cleaned the factory bathrooms. He became familiar
with the Union when agents, including Seth Grodowsky
came to Automatic Switch to talk to employees in relation
to their jobs. In mid-September 1991, Seth came to Auto-
matic Switch at around 5:30 p.m. and Juan stopped to speak
to him in the area inside the entrance door close by the secu-
rity station. Seth and Juan were alone. Supervisor Gerardo
Castellonese came out of the Control Services office nearby
and told Juan that he could not continue talking to Seth and
the Union, that he should go to his job. Seth told Gerardo
that Juan was responding to a question he had asked. Juan
went into work.
On October 4, Juan was again talking to Seth inside the
entrance to Automatic Switch at 5:30 p.m. while Gerardo
was close by at the entrance to his office. He came toward
them and told Juan to go to work. Juan told Gerardo he was
talking to Seth about his vacation, because he had worked
at Automatic Switch for 3 years and he had never had a va-
cation. Gerardo said he couldn’t do anything but he, Juan,
had to speak to the manager, Walter Solari. Gerardo also told
Juan to go and do his job because he could have problems
with his job if not, later on, because he was talking to a
member of the Union. Seth was leaving, and Juan was going
in to work when Walter Solari and Supervisor Salvatore
Toppi came up. Solari told Juan he should not be talking to
the Union, to a member of the Union, because he was going
to fire Juan from his job. Seth, who was still present, said
that Juan had been claiming a right which he was entitled
to. An argument then started between Seth and Salvatore.
Salvatore told Seth that he was going to punch him and ges-
tured by punching his right fist into his left open palm to
show what would happen if Seth didn’t leave the premises.
Salvatore also threatened that if Seth didn’t leave he would
call the police.
As Juan started toward his bathroom in his work area he
turned to see the police arrive outside as Seth went outside.
He saw the police then go into the little Control Services of-
fice off the entrance area.
On October 10, 1991, as Juan was alone and signing the
book to go into work he again talked with Seth. Gerardo
again told Juan to go to work because he might have prob-
lems with his job. Later that evening, at about 8:45 p.m.
Gerardo and Salvatore both came to the women’s bathroom
where Juan was cleaning, Gerardo touched his shoulder from
the rear and said he was going to warn Juan, for him not
to continue talking to the Union because otherwise he was
going to fire him from his job, and this same thing that he
was talking about, he was going to talk about it to the other
workers. (Note that according to Juan’s wife, Leandra,
Gerardo had already gathered Control Services, Automatic
Switch employees together at the beginning of the year and
told them to stop talking about the Union because something
big would happen to them.)
According to Juan, in mid-September 1991, he had at-
tended an employee meeting at which Manager Solari had
told them, among other things, to remind him a month or 3
weeks ahead of time about their vacation dates, so he would
be able to keep them in mind for each employee in planning
work assignments. At that time Juan informed Solari that he
was due to have his vacation starting October 11 and Solari
told him that was okay. October 11 was the third year anni-
versary of his starting work for Control Services at both lo-
cations. As Juan had commented to Seth on October 4 he
had never taken a vacation before from his work at Auto-
matic Switch He had previously taken vacation time from his
job at Sandoz.
On Friday, October 11, 1991, apparently at the end of the
work evening, Juan reminded Solari his vacation would be
starting at the end of that workday and he was asking for
that because he was entitled to go and get some rest. Juan
asked for 2 weeks’ vacation, one for Automatic Switch and
one for Sandoz. As described by Juan, Solari said he could
only take a 1-week vacation because the only people who
have a right to 2 weeks are those who have worked for 5
years. Solari said to take 1 week off as a rest, and he gave
Juan a check he owed him, which Juan later identified as a
paycheck for the week ending October 11, and Juan left.
Juan stayed out of work for 1 week commencing Monday,
October 14, and returned to work on October 21, 1991.
When he reported he could not find his timecard to punch
in and asked Gerardo about it. Gerardo told him Solari had
his card at the office and he wanted to talk with Juan. When
he arrived at the office, Solari told him he was fired because
he had gone on vacation without permission. Juan told Solari
that he had given him permission for 5 days and he had also
given him a check owed to him. Juan reminded Solari he had
told Juan to go and take a rest for 5 days, which was what
he was entitled to. Solari said no, Juan then said, on behalf
441CONTROL SERVICES
2 Although Juan Perez placed this conversation now as taking
place on October 11, and even insisted on this date when I brought
the discrepancy to his attention, that was clearly a result of confu-
sion of dates, because he also testified that this conversation took
place on the evening that Seth was threatened at Automatic Switch
by Salvatore and the police were called by Respondent, that he then
went to work and had no further discussion with supervision about
vacations. Furthermore, Perez claimed some time went by and he
still received no answer about his vacation pay. If this conversation
had taken place on October 11, he was not at work on any day
thereafter to learn that Respondent had no answer for him.
3 This is contrary to the vacation benefit contained in the last
agreement between Control Services and the Union’s predecessor,
Local 389, SEIU. The Automatic Switch collective-bargaining agree-
ment in effect from November 1, 1986, to June 15, 1989, whose
terms of employment continued to remain in effect in the absence
of an impasse in bargaining provided for every employee regularly
employed to receive 5 days’ vacation with pay after 1 year of em-
ployment and 10 days after 2 years, with the vacation pay to be
computed at straight hourly pay based on the number of working
hours of scheduled workweek of each employee. Although standard
workweek for full-time employees was 40 hours per week the agree-
ment provided that regular part-time employees (those working less
than 25 hours per week) were to receive the same hourly wages as
full-time employees, and the vacation article draws no distinction be-
tween full and part-time employees in determining eligibility for va-
cation with pay.
of that light that is there, ‘‘you gave me 5 days’ permission
and you gave me a check.’’ Solari responded, ‘‘Well, may
that light go out because I am not giving you any permis-
sion.’’ During this time, according to Juan, both Gerardo
Castellonese and Graciela Solar were present.
Juan Perez never received anything in writing stating the
reasons for his discharge. He had never received any prior
discipline during his 3 years employment by Respondent and
he had never missed a day of work at Automatic Switch.
During his cross-examination, Juan now noted that on the
occasion of his complaint voiced to supervision on October
24 about his never having received a vacation at Automatic
Switch in 3 years, he had asked Walter Solari why he had
never received a paid vacation. Solari had replied that he was
going to speak to the central office to find out why and he
didn’t know about it.
Juan asserted that in the past, when he took vacation time
at Sandoz, he still reported for work at Automatic Switch in
the evening. According to Juan, Leandra also complained to
him about Control Services’ failure to pay her vacation or
provide her with vacation time for her services performed at
Automatic Switch.
Juan claimed that he had been paid for vacation for time
worked at Sandoz for his first and second years, 1989 and
1990, and took vacations, but not for his third year, in 1991.
For time worked at Automatic Switch, he never received va-
cation pay nor took vacation time.
Respondent presented a number of witnesses in its defense
against the allegation of Juan Perez’ discriminatory dis-
charge. Supervisor Toppi testified that neither he, nor Super-
visor Gerardo Castellonese in his presence ever threatened to
discharge Juan Perez if he didn’t go to work at 5:30 p.m.,
although both he and Gerardo did tell Juan that it was after
5:30 p.m. and he could not stand around anymore and talk
to Seth Grodowsky. Neither did Walter Solari threaten to fire
anybody in his presence for failing to go in to work while
Seth was present in the access area.
Supervisor Gerardo Castellonese denied ever speaking to
employees about the Union, or ever addressing them at any
meeting regarding the Union, and did not say to anybody to
stop talking about the Union, because something big was
going to happen to them. Neither did he ever talk to Leandra
Perez or say anything in her presence concerning the Union.
Gerardo also denied ever telling employees in the access area
at Automatic Switch to go to work at 5:30 p.m. or thereafter
or telling anybody, including Juan and Leandra Perez, talking
to Seth or anybody else from the Union, that they could be
fired or would be fired for talking about the Union.2
Walter Solari testified he could not recall any conversation
with Juan Perez before his termination concerning vacation.
Solari denied that Juan ever asked him for permission to go
on vacation. Normally, as explained by Solari, and his clerk
Villanueva, a book or calendar is maintained in his office
which contains the list of employees and the dates of their
vacations. The employee makes the request of the supervisor
who then notifies Solari who in turn instructs Villanueva to
record the information. On October 11, 1991, shortly after
3:30 p.m., Juan came to Solari’s office at Sandoz, handed
him the keys for building 402 and told him he was going
on vacation. Present also was Solari’s clerk Ida Villanueva.
Solari asked Juan whom he had asked for permission. Juan
said Graciela, Solari said Graciela had never told him that
Juan had asked for permission to go on vacation. Juan then
said, ‘‘Well, I’m going. I’m going for a week.’’ Solari told
him ‘‘I cannot give you permission right now because you
have to tell me with enough time for me to cover your job.’’
Solari said the only thing ‘‘I can give you is three days. If
you don’t come back after three days, you [sic] going to be
losing your job.’’ Solari could not recall any response by
Juan.
Solari noted that he had instituted a rule on the job about
limiting last minute grantings of leave to 3 days so he can
cover the work when employees don’t show up. If he re-
ceives at least 2 weeks’ advance notice of vacation leaves he
can arrange for vacation pay in advance.
Solari described the paid vacation benefit for Control
Services’ employees at Sandoz as 1 week a year for the first
5 years of employment. At Automatic Switch the benefit is
2 weeks a year with pay after the first year. For part-time
employees like Juan Perez they only receive half the benefit,
including the amount of vacation.3
Respondent introduced into evidence an ADP employee
earning record for Juan Perez and a canceled check issued
to him by Control Services showing that he received a vaca-
tion check for 80 hours for the pay period ending June 11,
1991. Respondent asserts this payment represented a com-
bination of the vacation pay to which he was entitled from
both work performed at Sandoz (1 week) and Automatic
Switch (1 week) for 1991.
On Monday, October 14, Graciela Solar called him to ask
if Juan Perez had permission to go on vacation because an-
other employee, Ernesto Barger, had given her Juan’s keys
for bathrooms and dispensing machines in building 401 and
told her Juan would be gone for the week. Solari told her
he had not but that Juan had said she had given him permis-
sion. Solar denied that she had.
After 3 days that week Solari determined to fire Juan at
both Sandoz and Automatic Switch. He was not going to
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Four other employees at the Exxon-Linden site were also found
to have been unlawfully discharged by Respondent.
bend the rules about failure to provide advance notice of va-
cation, otherwise he would have to bend them for everyone
else. He removed Juan’s timecard from the rack. On Mon-
day, October 21, when Juan asked for his card, Solari told
him he no longer worked for Respondent because he didn’t
come back on Thursday when he was supposed to. Juan did
not reply and he left.
Employee Caeser Angeles was present at 3:30 p.m. on Oc-
tober 11, 1991, when Juan Perez handed the keys to Barger
and told him he was going on vacation. Clerk Ida Villanueva
was present on October 11 when Juan came to Solari’s office
and handed in a set of keys because he was going on vaca-
tion. Villanueva corroborated Solari that Juan said in reply
to his question that he had told Graciela Solar, his supervisor
and that Solari then told him Solar hadn’t told him, but he
could go, but here she differed from Solari, attributing to him
the statement that he should be back within 3 days, not after
3 days. She also understood the rule on late vacation requests
without advance permission to be that if the employee was
not back to work in 3 days, they don’t have a job anymore.
Villanueva continued that Juan said he was going on vaca-
tion anyway. She could not remember how much time he
had requested or how much time he said he was taking. Wal-
ter Solari told him if he wasn’t back in 3 days, then he had
no more work when he got back.
Graciela Solar denied that Juan Perez ever came to her to
request the vacation he took on October 1991, although she
was his supervisor and he was supposed to obtain her per-
mission. She learned he had taken one when she was told by
Ernesto Barger on Monday morning, October 14. She also
later learned from Solari that Juan had turned in some keys
and left on vacation after work on Friday, October 11.
Solar confirmed during her cross-examination that at Auto-
matic Switch Juan Perez was a good worker and had never
missed a day of work in 3 years of employment. Yet when
she found him absent apparently on vacation on October 11
she did not seek to call him at home or try to locate him
to confirm why he was not at work even though Walter had
made clear to her Juan had never asked him for permission
to take vacation.
As noted earlier, employee Martha Arismendi, along with
employee Jose Carbonell had been unlawfully discharged by
Respondent at Automatic Switch on or about April 10, 1990,
as concluded by the administrative law judge and the Board
in Control Services, 305 NLRB 435 (1991), whose order was
enforced by the court in unpublished opinion No. 92-3069
(3d Cir. 1992).4 In that decision, the administrative law judge
found, inter alia, the following facts: Supervisor Castellani
(Castellonese) told a group of employees in February 1990,
after bargaining ceased and before the 10(j) injunction had
issued that there was no union. Between February and April
1990, Arismendi notified Gerardo that she intended to file a
grievance with the Union regarding a 1-day suspension she
received in February, leading Respondent to conclude she
would be a union supporter when the union began to reintro-
duce itself to employees in late March 1990. On or about
March 24, 1990, when union organizer Robert Sarason held
a union meeting at the Exxon parking lot after work,
Arismendi and Carbonell were present. Supervisor Salvatore
Toppi and a security guard told the assembled group that
they could not meet there and threatened to call the police.
When the police arrrived the meeting broke up.
The Board adopted these findings, and further, that when
Respondent told Arismendi and Carbonell they could not
continue working without immigration documents under their
assumed names, even though they had tendered such docu-
ments using their real names, it was relying on a pretextual
reason for their discharges, shielding a discriminatory reason.
Id. at 435. The Board also noted, in particular, Toppi’s inter-
ruption of the union meeting as aiding in establishing com-
pany knowledge of Arismendi and Carbonell’s union activity.
The Board finally noted that when Gerardo responded to
Arismendi’s protest regarding a work assignment that she
was told at a union meeting they did not have to work in
other sections, by observing the employees no longer had a
union, this was further evidence of the Respondent’s
antiunion animus. Id. at 435 fn. 4.
Arismendi was reinstated by Respondent to her job at
Automatic Switch on December 5, 1991, following issuance
of the Board’s Order on October 15, 1991, but was fired
again more than 4 months later on April 28, 1992. Her work
shift again on her return was 5:30 to 9:30 p.m. and she re-
sumed cleaning of bathrooms in the Automatic Switch fac-
tory. In February 1992, Arismendi spoke with Union Agent
Ed Millan at Automatic Switch when she arrived for work
at 5:30 p.m. Jose Carbonell was there as well, as were Rob-
ert, another union agent, and employee Juan Perez. She saw
both Salvatore and Gerardo looking at them from a distance
of 10 to 15 feet.
In March 1992, she was given a union button by Millan
and thereafter wore it on several occasions on the front of
her blouse, for the first time a few days before she was told
to use a pumice stone to clean a stained urinal. The round
button, had a white background, with SEIU in block letting
and a handwritten yes in red letters and across its bottom fol-
lowed by a red checkmark in a box. She did not see any
other employees wear it.
In March 1992, for the first time, on a Wednesday, she
was told by Gerardo, to clean some urinals with a pumice
stone. Previously, in her prior employment from 1985 to
1990, she had only used soaps and wore gloves while clean-
ing toilets and wash basins. On this occasion Gerardo issued
her the stone and explained she should go into the bottom
of the urinal with her hand using a scrubbing motion to re-
move a stain. Martha told Gerardo she was not going to use
the pumice stone and was going to call the Union and tell
them what she had been told to do. Martha added that if he,
Gerardo, would supply her with a soap or different kind of
liquid she would clean the stain. Previously, she had been
supplied with an acid solution in a white and red plastic con-
tainer to use on tough stains and dirt. Gerardo said he would
not bring her anything and she had to use the stone. She had
to remove the stain by Friday.
That night, Arismendi cleaned as she usually did but with-
out using the stone, The next evening she found the pumice
stone left for her in her cleaning cart. Walter Solari, Gerardo,
and Salvatore came to one of the women’s bathroom at 6
p.m. Solari told her that she had to wash the toilets with the
stone and she said she would not. At Arismendi’s request
they visited other bathrooms cleaned by fellow employees
because according to Arismendi she wanted to know why she
443CONTROL SERVICES
was the only one that was asked to use the stone for cleaning
the toilets. Arismendi explained that although there were
many Control Services cleaning employees working at Auto-
matic Switch in her sector, the only complaints about work
performance were being made against the only two union
supporters among them, herself and Jose Carbonell.
Arismendi claimed that she had called the Union the prior
day, spoken to Agent Eddie Millan, and had been told if her
fellow workers use the stone, she may use it; otherwise she
may refuse to do so. Thursday evening before Solari and the
other supervisors approached her she had asked two fellow
workers, a Norberto and an Andrea, one of whom told her
he was not going to use the stone and the other who said
she had not been given the stone to clean the bathrooms.
After visiting the other bathrooms and telling Walter that she
felt she and Carbonell were the only employees who received
complaints because they were the only union people, Solari
repeated that she had to clean the bathrooms with the stone.
Arismendi again asked for an acid solution and Walter said
he would not give her any kind of acid because it had been
prohibited, forbidden by the Union. But Solari did supply her
with a long-handled sponge wrapped around a brush.
After cleaning the bathroom that contained the stained uri-
nals, Gerardo came by and took pictures of the stained area
while Arismendi worked on it with the sponge. He did not
explain this action which was unique in her experience. The
stain did not come off that night.
Arismendi described the stain as crusty, dark grey and
black, on the porcelain at the foot of a urinal.
Friday night Arismendi washed the bathroom the same
way she always had. Salvatore, Gerardo, an employee Mario,
and another employee, Gerardo’s brother-in-law, arrived.
They were carrying the acid in the white and red container;
they also had the pumice stone. She remained outside while
Mario and the brother-in-law were on the bathroom cleaning
the stains, with Salvatore and Gerardo also present. After 15
to 20 minutes Arismendi entered and saw that the stain had
been removed.
The following Monday before signing out, Arismendi was
given a paper to sign by Gerardo. It appeared to be written
only in English and she said she wouldn’t sign and was not
given a copy.
During April 1992, Martha was told to clean a chair in a
fourth floor ladies’ bathroom. She had previously only dusted
it. The chair had chrome metal arms which had oxidized,
turned yellow and became rough. They were in this condition
since she first started at Control Services in 1985. Arismendi
spent half an hour inside the bathroom, 15 minutes cleaning
the chair. She told Gerardo she had cleaned the chair but
could not remove the stain from the arm. The next day, the
Company asked another employee to do it.
Arismendi saw an employee named Suzanne inside the
bathroom cleaning the chair from the time when she arrived
(for work) at 5:30 p.m. until 7:30 p.m. This employee did
remove the stain.
About a week later, Arismendi was again given a paper
written in English to sign by Gerardo. She declined to sign
and did not receive a copy.
A third incident, which led directly to her discharge, arose
at the end of April 1992. Part of her duties include cleaning
three water fountains, of which one was located near the fac-
tory entrance.
Gerardo approached her on April 28 in a bathroom and
asked if she would clean the side of that fountain. Arismendi
said she had already cleaned it and would not go back and
do it again. Later that evening she examined the fountain and
saw that it was clean. At 9:30 p.m. as she was leaving, Wal-
ter Solari ask if she had done what she had been told to do.
She answered yes. He had a paper in his hands which he
asked her to sign. She asked if he would call somebody from
the Union or the Company to read the paper so she would
know what she was signing. He said it had nothing to do
with the Union and the Union was not there at the Company.
He said he would not and she said she would not sign. He
told her she was fired and there was no longer work for her.
Arismendi said ok and that she would call the Union.
A week before her discharge, Arismendi was asked by
Millan to distribute a union leaflet in the Automatic Switch
parking lot and she did so, handing it to fellow workers there
when she left work. No other employees did so. The leaflets
was in English and Spanish and signed by Arismendi. It was
headed OPEN LETTER and read as follows:
OPEN LETTER
My name is Martha Arismendi, and I support my union
Local 32B-32J SEIU. Because I support my union,
Control Building Service fired me. My union fought
back and I got my job back. Since I returned to work,
Control supervisers [sic] have constanly [sic] harassed
me. I feel its [sic] time that this harrasment [sic] stops.
I fell [sic] that Automatic Switch who treats their work-
ers with dignity and respect, should tell Control to do
the same.
Sincerely,
Martha Arizmendy
The expired Automatic Switch-union agreement contained
an article providing 3 personal days off per year. After
Arismendi was back at work 3 months she asked Gerardo if
she could take 1 personal day. At first he agreed but then
told her no, she had to work 4 months and had to give a
48-hour notice. Neither of those conditions are contained in
the expired agreement. Arismendi asked him why was it that
before they could get a personal day after 3 months, and now
we had to wait 4 months and that many of her fellow work-
ers had been given the personal day after 3 months. He re-
plied, that was before. Now you have to wait 4 months. So
she said if we had personal days, it was through the Union.
On cross-examination, Martha testified that the stain in the
urinal she was asked to remove was present since she re-
turned in December 1991. She now reported that Gerardo
had told her that someone from Automatic Switch had com-
plained that the chair had to be cleaned. She could not re-
move it using the liquids she had been given to work it in
a normal way or with the brush she had been given. Yet,
Arismendi repeated that she told supervision that she would
decline to put her hands into the urinal to clean using the
pumice stone. While she at first denied she had been told to
wear gloves while using the stone (Tr. 374) contrary to her
earlier testimony (Tr. 317), Arismendi then acknowledged
that the employees were always given gloves to clean the
bathrooms, but then declined to reply directly as to whether
she had been ordered to clean with gloves and the stone.
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Arismendi then noted that her refusal to follow the orders de-
rived from the information she had received from her contact
with the Union, and her communications with other employ-
ees from which, she apparently concluded she was the only
employee directed to use the pumice stone. She acknowl-
edged that she did not try to clean with the stone to see if
it was effective.
Arismendi also acknowledged for the first time that on
Friday, the third day following her refusal to follow the
Company’s cleaning directions, she told Walter Solari that if
he didn’t like the way she did her job, he could fire her.
Solari replied, ‘‘do you want me to fire you to make me go
to court.’’
Arismendi also acknowledged that as to the urinal as well
as the other incidents involving the chair and the water foun-
tain, in all three cases she did not clean them in the way her
supervisors had demanded.
Just as with regard to the stain on the urinal, so as to the
rust on the chair arm, Arismendi spoke to a third person to
seek advice as to whether the Company’s cleaning orders
were proper. As to the chair, she spoke to an employee of
Automatic Switch who was also a union chairman there, who
rubbed a piece of paper on the chair, which turned yellow,
and questioned the Company’s demand in view of the fact
the chair had been rusty many years and said he would find
out who had complained to have the chair cleaned.
Arismendi did not know what Suzanna had used to clean
the chair and had only learned from a coworker how long
she had spent on the assignment—she was told it was 2 to
3 hours. Arismendi now also recalled that there were two
chairs with rusted metal arms. After trying to clean them
without success she did not seek out supervision to inform
them of her inability to clean them with the liquid supplied
her.
As to the water fountain, both Gerardo and Salvatore told
her to clean the sides of the fountain after she told them she
had already cleaned it. When she went to observe the foun-
tain thereafter she saw it was clean but did not then seek out
supervision to report this observation. When Walter Solari
later asked her if she had cleaned what Gerardo had in-
structed her to clean, she now testified she replied, ‘‘how can
I clean what I’ve already cleaned.’’ In her affidavit,
Arismendi replied to Solari she had, yes, but that she wasn’t
going to clean where she’d already cleaned. Arismendi now
adopted the language she had used in her affidavit.
Respondent offered the testimony of a number of wit-
nesses in defense to Arismendi’s allegation of unlawful har-
assment, written warnings, and discharge.
Employee Martha Hernandez testified that during her 3
years of employment by Respondent at Automatic Switch
she had occasionally used the pumice stone while wearing
latex gloves to clean urinals or toilets containing yellow or
black stains and that the application of the stone while not
difficult was effective.
She was asked to clean some arm chairs in a ladies’ bath-
room at the factory in the spring of 1992. The metal arms
were black with dirt. It took her 2 hours to do the job, clean-
ing all parts of the chairs. Her regular duties were to sweep
and mop in certain areas but she was occasionally directed
to fill in for other employees to clean bathrooms. On this oc-
casion before she performed the assignment she spoke with
Arismendi who told her that she had cleaned the chairs with
a cloth, but the rust did not come off and she was not going
to clean them.
Hernandez used spray wipes and a glass cleaner and then
rubbed the arms with a cloth. She came in before her normal
starting time and received time-and-one-half overtime pay.
She came earlier because she believed correctly the work
would take a substantial amount of time and she could not
do it during her normal 4-hour shift. According to Hernan-
dez, the stains on the chairs were not from rust, but were
black dirt from people’s dirty hands and had accumulated
over a long period of time. She was able to remove the
stains so that the aluminum metal shone again and the Auto-
matic Switch factory manager told her they were in perfect
condition.
Another employee, Marie Verderami, also testified that she
wore latex gloves and used the pumice stone to clean and
remove toilet and urinal bathroom stains which could not be
removed by other means such as an abrasive powder or
creams. She was regularly employed by Control Services and
at Automatic Switch from 1980 to a few weeks before her
testimony in May 1993 when she voluntarily left its employ.
She anticipates that she may come back to work for Control
Services in the summer, as she left and then returned sum-
mers in the past under an arrangement which Respondent
permitted when it had a vacancy because she was a good
worker.
Verderami described the pumice stone as dissolving as it
is used in a scrubbing motion, while the gloves remain intact
during this cleaning process.
Hernandez had not been supplied with acid for stain re-
moval. In working with the pumice stone, she first brushed
aside most of the water remaining in the toilet bowl or urinal
down the drain and then applied the stone to the stain. How-
ever, she had never been asked to clean a stain at the bottom
of a urinal.
Another employee, Carlos Zuniga, who worked overtime
from 5:30 to 9:30 p.m. at Automatic Switch, and is Gerardo
Castellonese’s brother-in-law, testified that in March or April
1992, he was asked by Salvatore to clean urinals in a men’s
bathroom. This was a special job to which he is sometimes
assigned, apart from his regular job of stripping wax from
wood floors, for which he received more pay than porters
and has among the highest paying jobs at Automatic Switch
He wore gloves and used a pumice stone to do the work. He
was accompanied by a coworker named Mario and they
cleaned all four urinals in each of two bathrooms. This work
was normally assigned to Martha Arismendi. The stains were
in the bottom of the urinals and on the side walls.
Salvatore showed him how to do the job applying the
pumice stone, and Gerardo came in to the bathroom later.
Salvatore Toppi testified that in March 1991, he and
Gerardo Castellonese told Martha Arismendi in Spanish to
please clean the urinals in the men’s bathrooms which had
developed brown stains at their bottoms. She was supplied
with gloves, a green pad, a johnny mop, a mop or sponge
at the end of a foot long handle, and a pumice stone. The
following day, after observing that the stains had not been
removed, when questioned, Martha said the stains were not
removed and she had to call first the Labor Board. Because
of her failure to perform the work assigned, Gerardo wrote
up a formal warning for her. Another employee Carlos, along
with a coworker were reassigned from other work and asked
445CONTROL SERVICES
to clean the stains in the urinals using the same supplies
given to Martha.
Subsequently a problem arose involving the cleaning of
two chairs and a sofa in a ladies’ bathroom. Automatic
Switch had complained about the condition of this furniture.
In a daily communications log, the Automatic Switch engi-
neer had left a note before the evening cleaners and super-
visors arrived on April 21 reporting that furniture in the la-
dies’ room between Quality Control and Shipping needed
cleaning. That evening Salvatore and Gerardo gave Martha
cleaning supplies and told her to ‘‘please tonight clean the
furniture—customer wants it cleaned.’’ After 9 p.m. the su-
pervisors checked and observed the furniture had not been
cleaned.
On April 22, the Automatic Switch engineer went over his
previous message with a green felt pen highlighting the re-
quest and added a note in capital letters ‘‘PLS DO WITH
CLEANERS.’’ That evening Gerardo, with Salvatore present
asked Martha, do me a favor please, clean this furniture to-
night. In the bathroom, Salvatore took some paper towels,
wet them, and showed Martha how dirt could be removed
from the metal arms without using any cleaning solution.
Martha replied I don’t clean, fire me. I got to first call the
Labor Board. It was then that the supervisors approached
Martha Hernandez and she agreed to do the cleaning.
The next day, Hernandez came early and cleaned the fur-
niture thoroughly as well as the bathroom walls and fixtures.
She was offered and provided overtime pay to do the job.
A few days later, Salvatore and Gerardo noticed a water
fountain, assigned to Martha for cleaning, had some of the
liquid cleaning solution on its sides and on the floor nearby.
Arismendi was asked to clean the fountain that evening, but
she walked away without responding. The next night when
Gerardo approached her again, in Spanish, she refused to
clean the fountain and said she would call the Labor Board.
The two supervisors finally cleaned the fountain and floor
themselves over 10 minutes and after Walter Solari was in-
formed of this incident and their recommendation, he fired
her.
Salvatore Toppi acknowledged that no formal warning was
issued to Arismendi for the urinal incident. He also noted
that an acid solution for heavy cleaning had not been used
for 3 years by Control Services. The job of furniture cleaning
to which Hernandez was assigned took her from 1-1/2 hours
to 2 hours to complete. She was asked to come in early be-
cause otherwise she would not have been able to finish her
regular cleaning work.
Salvatore noted now for the first time on cross-examina-
tion that when first approached Martha said she would clean
one chair a night because she had no time. The furniture was
in bad condition, the dirt on them had accumulated over 1
or 2 months.
Toppi testified that he understood and spoke some Span-
ish, enough to make employees understand him, but that
when Gerardo is present for discussions with employees he
is the main spokesperson, Spanish being his native tongue.
Gerardo Castellonese testified that he saw some stains in
the bottom of some urinals in March 1992. He gave
Arismendi 3 working days to clean and remove the stains.
She said she wasn’t going to do it because she wasn’t going
to put her hand inside the urinal. Gerardo made a memoran-
dum concerning this conversation that very evening. In it, be-
sides noting the tools (scouring pad, pumice stone, etc.) with
which she was supplied and the 3 days in which she was
asked to clean the urinals, Gerardo, although not so testify-
ing, wrote that ‘‘Martha Arismendi complained that those
rest rooms were like that since she came back and started
doing them. We brought the cleaner (Norberto Garcia) that
was doing them before, and, in front of her, denied all her
comments.’’
According to Gerardo, the 3 days’ time to clean the urinals
was enough time to complete this special cleaning along with
her regular daily assignments. Two urinals in one bathroom
and one in another had the bad stains but all urinals, four
in each, were dirty.
After 3 days, the urinal stains had not been removed and
Arismendi when approached again said she would not put
her hand inside the urinals. At this point the supervisors as-
signed Carlos Zuniga and his coworker to do the job, reliev-
ing them from their regular jobs of stripping floors for the
time necessary. When Gerardo arrived in the first bathroom
after two urinals had already been cleaned, he observed the
remaining two being cleaned in 3 minutes each. Arismendi
did not receive a warning notice for her conduct as to the
stained urinals.
As to the dirty chairs and sofa in the ladies’ bathroom, ac-
tually a one piece unit with chrome arms and legs, plus two
other chairs with chrome legs, after reading the Automatic
Switch message, Gerardo saw they were black with dirt, but
the chrome was not rusty. He asked Martha Arismendi to
clean them, showing her how to do it and what to use, a
spray-n-wipe chemical compound. Martha did not reply.
After checking that the work was not done, he prepared a
warning which Martha refused at the end of her shift. The
warning, dated April 21, 1992, contrary to Gerardo’s firm
initial recollection that Arismendi did not respond when
given the assignment, reports that ‘‘she started to yell and
scream and tried to intimidate us mentioning that she was
going to call the Labor Board and told us to fire her if we
don’t like the quality of her work’’ When presented with the
warning she said she would not sign it and I’m not going
to do that job. The warning contains a Spanish version below
the English, but appears fainter and is written in a smaller
hand in order to fit it all in above the place for signature.
After seeing the Automatic Switch engineer’s entry the
next day, Gerardo and Salvatore asked Martha again to clean
the furniture, following a second request from the customer,
and Toppi demonstrated with wet paper that the dirt had not
been removed. Arismendi said she would not do it and was
going to call the Labor Department to find out if this work
was part of her job, she was screaming and yelling at them.
At 9 p.m. Gerardo saw the work was still not done and
presented a second warning to Arismendi at 9:30 p.m., writ-
ten in English and Spanish. He also made arrangements for
Martha Hernandez to remove the accumulated dirt from the
furniture, by coming in early. After Hernandez completed the
work the following late afternoon and early evening, the fur-
niture was clean and the shine of the chrome on arms and
legs was apparent.
A few days later, Gerardo and Salvatore observed streaks
on the sides of a water fountain from the chemical, green
clean, used to clean it, as well as white powder on the floor
from the same cleanser. Arismendi was taken from a nearby
bathroom, shown the conditions and asked to clean the sides
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and floor. Arismendi yelled she wasn’t going to do it and
suggested if they did not like the way she works to fire her.
She was going to call the Labor Department. The supervisors
inspected again at 8:30 p.m., reported to manager Solari, and
he inspected that the cleaning had not been performed.
Gerardo told Solari that Martha was not doing her assign-
ments, enough is enough, he recommended her termination
and Solari agreed. Gerardo and Salvatore cleaned the foun-
tain themselves, then Gerardo prepared a warning form, on
the same date, June 28, in English and Spanish, about the
refusal to clean and noted she was terminated. Both
Castellonese and Solari signed it and Arismendi refused to
do so, while protesting she was going to call the Labor De-
partment.
Under cross-examination, Gerardo confirmed that when he
told Arismendi to clean the urinal stains he gave her new
tools, including safety glasses, scouring pad, a new pumice
stone, and a new pair of gloves. While he did not issue a
warning to her for her refusal to do the job, since he had
to get someone else to do it this incident was held against
Arismendi for the future.
As to the chair assignment, he expected Martha Arismendi
to do the work along with her other regular duties in the 4-
hour shift. He understood Martha Hernandez took one-half
hour to an hour to clean them, and spent an additional one-
half hour cleaning generally in the same bathroom.
On none of the occasions that Gerardo claimed that
Arismendi had screamed and yelled at him, did he tell her
to lower her voice or that it was improper behavior. He was
not afraid she would do this in front of the customer. Neither
did he or Toppi tell her that her refusal or failure to perform
the three cleaning assignments—removal of stains, dirt from
the chairs, and cleaning fluid from the water fountain—
would result in further discipline or discharge, and Gerardo
did not respond when Arismendi suggested she be dis-
charged.
When Gerardo reported Arismendi’s refusal to clean the
fountain on the day of her discharge, he also reminded Solari
of the incidents involving the chairs and urinal. When she
was presented with the termination warning she yelled and
screamed in front of other Control employees leaving for the
night. Arismendi did not take or read the slip when she was
informed she was being fired.
Gerardo also acknowledged some confusion when he first
testified about when Arismendi first threatened to go to the
Labor Board and suggested she be fired. He now testified
that those comments were made when she was presented
with her first warning on April 21, for failure to clean the
chairs, rather than the second, on April 22. Gerardo had also
forgotten when he first testified that Arismendi had com-
plained about the longstanding condition of the urinals, as
noted in his contemporaneous memorandum, when she was
first told to clean them on March 23.
Walter Solari twice observed the water fountain the
evening of April 28. It had been cleaned in a sloppy manner
with white powder marks on the floor and drips on the side
and floor. Gerardo had informed him that Martha Arismendi
had been told to clean (or reclean) the fountain.
He also was aware of a number of prior incidents involv-
ing Arismendi. Gerardo and Salvatore had complained about
her work performance and brought to his attention problems
involving urinals in men’s bathrooms and chairs in ladies’
bathrooms which she had failed to correct, and he had per-
sonally observed the filthy conditions of the chairs about
which the customer had complained. Solari had received and
retained the paper towels Salvatore had used to show
Arismendi how dirty the chairs were. He also saw the urinal
stains 10 to 20 days before the supervisors asked her to clean
them. He approved the supervisors’ recommendation to fire
her.
When he presented Arismendi with her termination notice
she refused to sign and screamed and said she was going to
the Labor Board. He just turned away from her and did not
admonish her or call the guards to escort her out, or the po-
lice.
Turning to the allegation of a threat to union organizer
Seth Grodowsky and his criminal prosecution as a retaliatory
act to inhibit employee support for the Union, Grodowsky
testified at length.
Initially, Grodowsky corroborated Leandra Perez that he
visited the Automatic Switch site on more than two occa-
sions in March 1991, and spoke with Leandra in the union
access area at quitting time, 9:30 p.m., and at least once
walked with her to her car in the parking lot. Juan Perez was
also with him. Grodowsky saw Supervisor Toppi not more
than 10 feet away, facing them as he came toward his car.
Since he had no access to employees at Sandoz he gave
Leandra his union business cards listing his business tele-
phone number. He received calls from workers who said they
got his number from fellow employee Leandra. They re-
frained from identifying themselves when asked their names.
On October 4, 1991, he visited the Automatic Switch site
at 5:30 p.m. and was talking with Juan Perez. Solari,
Castellonese, and Toppi were nearby behind the Company’s
desk in the entrance area. Solari came over to Juan and told
him ‘‘its time to work, it’s 5:30. If you don’t want to work,
you can leave, You can’t be talking to people at 5:30.’’
Grodowsky told Solari that ‘‘the law allowed him to talk to
the workers from 5:30 to 5:40 and he was allowed to talk
to Juan.’’ Solari repeated to Juan, ‘‘go to work. If you don’t
want to go to work you will be fired.’’ Grodowsky now re-
peated to Walter that ‘‘he was violating the man’s labor
rights. He, Juan, is allowed to talk to him. The Union has
access provision here.’’ The Union’s position, as expressed
on the record, was that the access provision in the expired
10(j) order was consistent with the expired contract provision
providing access which, as a term and condition of employ-
ment, continued in effect absent bargaining to impasse. The
counsel for the General Counsel has taken the same position
on the record and in its brief.
At this point, Salvatore Toppi came around the other side
of the desk and walked quickly toward Grodowsky in a tense
manner, with his fists clenched and half raised in front of
him. Gerardo stepped in front of him and held his arms. Juan
Perez, on the way to work, turned and witnessed this inci-
dent. Seth stepped back a bit, repeated to Walter that the
Union had access and the Company was breaking the law,
and left.
On October 11, 1991, Grodowsky visited the site again at
5:30. While talking to Juan Perez, Gerardo told Juan he
couldn’t talk to Grodowsky. Seth told Gerardo the Union had
a right of access between 5:30 and 5:40 and had an order
to that effect. Seth went and got a copy of the 10(j) order
447CONTROL SERVICES
from his car, gave it to Gerardo who made a copy, and gave
it back to Seth who then left.
Grodowsky testified about another visit to the site in mid-
November, when at 5:30 p.m. Solari told the employee he
was talking with, Jose Carbonell, it was time to go to work.
Grodowsky protested and Solari told the security guard to re-
move him and not let him back in. Grodowsky told Solari
he was breaking the law and then left.
The General Counsel did not question Grodowsky about
the incident at the access area on October 23, 1991, which
led to his being chrged with criminal violations. Previously,
Attorney Melvin R. Solomon testified about his defense of
Grodowsky in the criminal case and a number of documents
related to that proceeding were introduced in evidence. These
shall be examined shortly.
On his cross-examination, Seth acknowledged that there
was at least one, sometimes two, security guards at a desk
5 feet inside the door when he arrived, and the Control Serv-
ices supervisors were stationed at a cubicle (counter) some
5 feet beyond the guards’ station. When he spoke with the
employees, it was always in Spanish. He tried to speak with
as many of the 12 to 14 workers he saw leaving the evening
shift at 9:30 p.m., but sometimes they wouldn’t speak to him,
turned their faces away from him, and walked right by, but
later, did speak with him in the parking lot away from the
supervisors. He noted that both Leandra and Juan Perez
stopped and talked to him in the access area in the presence
of supervisors.
In his testimony given at the Morris County, New Jersey
Municipal Court, in his defense to the criminal charges of
harassment and disorderly conduct arising from the events of
October 23, 1991, Grodowsky provided the following nar-
rative.
On October 23, 1991, he visited the Automatic Switch ac-
cess area at about 5:30 p.m. accompanied by Juan Perez,
who had just been terminated, Juan’s daughter, another union
organizer, Ed Millan, and apparently one or two other per-
sons. Grodowsky tried to talk to two workers as they went
into work, one of them being Jose Carbonell, explaining to
them the Company had fired J. Perez for talking to the
Union after his 4 years of service. Supervisors Castellonese
and Toppi were at the counter nearby. Castellonese told the
workers to go in to work and Seth said they have the right
with the Federal court order to talk to me for 10 minutes.
The two cleaning workers went on into the factory. Seth
went to where Gerardo was standing on the floor and asked
‘‘why did you fire Juan,’’ Gerardo said he didn’t fire Juan.
Seth then said ‘‘that’s bullshit. Juan came over and in Span-
ish asked why did you fire me, I was talking to the Union,
I worked here four years. I didn’t deserve to be fired.’’ Seth
then said ‘‘this company treats people like dogs, this com-
pany is scum, this company is bullshit.’’ He also called
Gerardo a ‘‘jerk off’’ and asked ‘‘who the hell do you
fucking people think you are that you can throw people
around like this.’’ He also may have been facing Salvatore
and looked at him while he made his remarks. His claim that
the Company fired Juan, and is scum was made to both of
them.
Grodowsky admitted he might have been a little worked
up about the matter, in explaining the heated nature of his
remarks and his use of foul language. He was speaking loud-
ly, in part to be heard over the machinery, but he was also
angry.
After making these remarks it was about 5:30 p.m., and
Seth left. Outside he encountered policemen who told him he
had no right to be there which he disputed. A man dressed
in a suit, later identified as an Automatic Switch vice presi-
dent, approached and said the same thing. Grodowski said he
had a Federal court order permitting his presence. The police
officers and official went inside to the Control Services of-
fice, the officers returned and agreed he had a right to be
there but he should keep his voice down.
Grodowski denied he had threatened the supervisors or in-
vited either of them outside to fight.
During his cross-examination Grodowski acknowledged
that a man who identified himself as a shop steward who
worked for Automatic Switch came up to him while he was
still arguing loudly in the access area and said there is a bet-
ter way to deal with this than by raising your voice.
Grodowsky also agreed and the General Counsel stipulated
that in none of his three pretrial affidavits was there any
mention of Solari’s order to Juan Perez to go in to work or
go home. The General Counsel also stipulated that the testi-
mony about Toppi’s moving toward Seth with clenched fists
before he was held back by Gerardo was not in any of the
three Grodowsky affidavits.
Grodowsky described the access area as situated in an
open hallway opening directly onto the factory proper on
both sides off the entrance area. Some of the workers sta-
tioned at various work tables, the closest of whom were 30
feet away, could observe loud statements and noise coming
from the access area.
On October 23, 1991, Toppi had come around the counter
and walked toward Seth with clenched fists, saying ‘‘don’t
call me a liar, don’t call me a fucking liar.’’ Gerard had to
hold him back. It was in response to Toppi’s attack that Seth
testified he called Toppi a ‘‘jerk off.’’ But Seth also ac-
knowledged during his cross-exmination that he was the first
one to use vulgarity of any sort and to raise his voice.
Grodowsky also acknowledged that while he had not in-
cluded in his court testimony Gerardo’s full response to his
question as to why Juan was fired, including the response
that Juan had quit, had gone on vacation, and didn’t want to
come back, he insisted this was said. It was Gerardo’s re-
sponse which led to Seth calling him a liar and I credit Seth
that Gerardo did explain his denial that Juan had been dis-
charged. Indeed, Seth’s expressed intention in coming to the
access area with Juan that evening was to find out why Juan
was fired and to see if something could be resolved.
Supervisors Castellonese and Toppi testified about the in-
cidents on October 13, including Grodowsky’s October 23
conduct which led them to file criminal complaints against
him.
According to Salvatore Toppi, Seth Grodowsky had been
coming to the access area at Automatic Switch two to three
times a month to meet employees during 1991. He came
both at the beginning and the end of the shift. He, Gerard
Castellonese, and Walter Solari had told employees, in par-
ticular Juan Perez, that it was after 5:30 and they had to go
to work and couldn’t stand around and talk to Seth.
On October 23, 1991, Seth showed up at 5:32 p.m. with
another union agent, Juan Perez, and Juan’s daughter.
Gerardo went over to employees with Seth and told them to
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
go to work. Salvatore was sitting behind the company desk
partition, about 10 feet away. According to Salvatore, now,
without any intervening exchange of remarks as Seth had
noted in his testimony in criminal court during which Seth
had questioned Gerardo as to why he had fired Juan, Seth
got mad, came toward Sal at the desk, screaming and called
him ‘‘you son of bitch, bastard, I want you, you’re that bas-
tard, chicken shit, mother fucker.’’ Workers from the Auto-
matic Switch factory, both men and women, about 20 of
them, came out front to see what was happening.
Salvatore Toppi testified he got up as Seth approached
him and said ‘‘what do you want.’’ Toppi denied he
clenched his fists, or tried to strike Seth. But he also noted
that Gerardo came between him and Seth and tried to calm
him down. At that point in the record, after Toppi said he
stayed at his desk and said ‘‘I don’t want to see you again,’’
Respondent counsel commented ‘‘Now Sal, you just made a
motion with your fist, did you clench your fist’’ Sal, surpris-
ingly, denied that he had during this incident. (Tr. 782.) Now
Sal added that the first thing Seth said was that he had fired
Juan. Toppi now testified that Juan was the best man he had
at Automatic Switch and all this year he and Juan never ever
had a problem and that Juan was his best friend. According
to Toppi, Juan had already quit because of the couple of
days he didn’t show up for work and didn’t call me.
The security guards called the police and they arrived. A
vice president for Automatic Switch, Visioli, also came to
the area.
Toppi was not asked and did not testify about the events
of October 4, 1991, on which date, he is also alleged to have
physically threatened Grodowsky and forced him to leave.
On cross-examination, Sal denied that he told the police-
men about any of the obscenities that Seth was addressing
to him or the menacing or harassing movements Seth was
making towards him. He also said nothing in response to
Seth’s harangue, and personally denied to Juan that he had
fired him. The Automatic Switch employees who he saw had
come closer away from their work areas to see the dispute.
Sal now contradicted his earlier denial and admitted he
stood up, clenched his fists, and got red in the face and tense
when Seth came toward him. He had earlier admitted being
Italian and having a hot temper, and that Gerardo told him
to calm down when he stood up.
Although Sal denied giving a statement to the police on
October 23, he and Gerardo both signed criminal complaints
the following day against Seth Grodowsky charging him with
uttering unreasonably loud and offensively coarse or abusive
language while in public and with the intent to offend the
sensibilities of a hearer, or in reckless disregard of the prob-
ability of doing so, in violation of N.J.S. 2C:33-2(b) and with
purpose to harass each of them, engaged in course of alarm-
ing conduct or of repeatedly committed acts with purpose to
alarm or seriously annoy them, in violation of N.J.S. 2C:33-
4.
Gerardo Castellonese did give a statement to the Florham
Park police also the following day. In it, he states that on
October 23, five or so members of the Union entered the
Automatic Switch building headed by Seth Grodowsky and
started to talk to Control Services building service employees
on working time. He noticed at 5:30 p.m. Grodowsky was
too late and asked him not to continue. He immediately
began to harass Gerardo and his partner with loud and offen-
sive language and he wanted to fight. The police were called
and they were removed. Tom Martin, the Respondent’s vice
president of operations, signed the statement as a witness for
Gerardo. In the trial of the case in the Florham Park Munici-
pal Court an attorney not from the office of prosecutor of
Morris County in which the events arose appeared to rep-
resent the State of New Jersey. As pointed out by
Grodowsky’s attorney in an appellate brief, apparently that
attorney, Richard Feldman, who represented the complainants
in municipal court was a private prosecutor retained by the
Company. A third ground for dismissal of the proceeding al-
leged in that brief, in which Grodowsky was convicted by
a municipal court judge after a bench trial, was that because
of the use of an impermissible private prosecution appellant,
Grodowsky was deprived of his due process right to a fair
trial with a disinterested prosecutor. The attack was on the
constitutionality of R 7:4-4(b) which provides that ‘‘if the
. . . Municipal Court Prosecutor or Municipal Attorney does
not appear, any attorney may appear on behalf of any com-
plaining witness and prosecute . . . on behalf of the State.’’
This issue apparently was not ruled on in the course of the
appeal.
Gerardo Castellonese testified that he never had occasion
to tell employees in the access area about going to work at
5:30 p.m. or thereafter. This testimony is hardly credible in
view of the testimony by Grodowsky, Juan Perez, and others,
including his fellow supervisor, Salvatore Toppi, as to
Gerardo’s conduct directing employees to stop talking with
Union Agent Grodowsky and start work at the 5:30 p.m.
starting time.
According to Gerardo, Seth came to the access area at
5:32 p.m. on October 23 with Juan Perez, his daughter, and
a few others and started talking to two workers hanging their
coats on a rack 25 feet from the access area. Gerardo ap-
proached and told them it was after 5:30 and they were sup-
posed to start working. The employees started in to work.
Seth went to yell and scream at Salvatore, going over to the
company desk behind a glass partition. Gerardo was talking
with the other union official, Ed Millan. Seth was yelling and
screaming, ‘‘motherfucker, cocksucker, chickenshit, son of a
bitch, scum bag.’’ Salvatore stood up and Gerardo went over
and stepped between Salvatore and Seth. Salvatore was
angry, his face was getting red. Seth now told Salvatore ‘‘hit
me, hit me, go ahead, hit me.’’ Gerardo told Salvatore ‘‘sit
down, relax, do not listen to him, he is looking for you.’’
Now Seth turned on Gerardo and directed the same obscene
words to him in a very loud voice.
Gerardo saw maybe 8 to 10 Automatic Switch employees
leave their work benches and come forward to see what had
happened. Arnold Visioli, an Automatic Switch vice presi-
dent, came from his office, Grodowsky went to talk to him,
and the police came, having been called by the security
guard. The police spoke to Seth inside and outside.
After that date, not Seth but other union agents and ladies,
came to the access area without incident.
During his cross-examination, Gerardo Castellonese was
obliged to agree that in the criminal trial, contrary to his cur-
rent testimony in the instant proceeding, he had sworn that
Salvatore Toppi came toward where he and Seth were argu-
ing about his direction to the employees to go to work.
Gerardo maintained that his prior testimony was incorrect.
His prior criminal trial testimony also reveals that he never
449CONTROL SERVICES
5 R. Exh. 25(a) is Sturm’s May 21, 1993 letter to Attorney Lew;
R. Exh. 25(b) is Control Services’ April 30, 1991 memorandum to
Sturm and p. 4 of Sturm’s March 26, 1991 letter which requests,
inter alia, the reasons for termination of certain-named
Bloomingdales-Hackensack’s employees to which the memo re-
sponds; R. Exh. 25(c) consists of five pages, listing reasons for ter-
mination of employees in units at Automatic Switch, Exxon-Linden,
Exxon-Florham Park, Exxon-Clinton and Bloomingdales; and R.
Exh. 25(d) is a printout of employees in each of the six units show-
ing name, address, telephone, rates of pay, hours worked, daily aver-
age hours, dates of hire, and job titles, as of March 29, 1991.
referred to Juan Perez as being present with Seth on October
23. Neither in his criminal trial testimony did Gerardo refer
to Seth using any foul language to him or Sal other than call-
ing them scumbags. Nor did Gerardo report at that trial that
Seth invited Salvatore to hit him or that he felt obliged to
step between him and Salvatore.
Gerardo now also placed Salvatore as moving from behind
the glass partition when he rose so he and Seth were stand-
ing face-to-face. This was when he, Gerardo, moved between
them.
The facts regarding the criminal proceeding reveal that fol-
lowing a bench trial before Judge Lawrence Willner in the
Florham Park Municipal Court held on December 2, 1991,
Seth Grodowsky was found guilty of two counts of use of
offensive language under N.J.S.A. 2C:33-2(b) and two counts
of harassment under N.J.S.A. 2C:33-4 and fined $800 plus
costs. A motion made by appellate’s attorney, Melvin R. Sol-
omon, to dismiss the complaints on the basis that N.J.S.A.
2C:33-2(b), the offensive language statute, had been declared
unconstitutional in two prior court decisions, one a decision
by New Jersey’s highest court in Matter of Vincente, 114
N.J. 275 (1989), was denied by Judge Willner.
By letter memorandum dated January 24, 1992, submitted
to Judge David S. Cramp, of the superior court, Morris
County, from the public prosecutor of Morris County, the
State consented to a dismissal of the disorderly conduct of-
fense because the cited subsection of the statute had been
held unconstitutional ‘‘for overbreath on the ground that one
cannot be prosecuted for public use of coarse or abusive lan-
guage which does not go beyond offending the sensibilities
of a listener.’’ State in Interest of H.D., 206 N.J. Super. 58
(App.Div. 1985). As to the harassment complaint, the pros-
ecutor argued that the defendant had intentionally harangued
Automatic Switch for the purpose of harassment in violation
of the cited statute which defines harassment as ‘‘a commu-
nication . . . in offensively coarse language, or any other
matter likely to cause anoyance or alarm.’’
In his brief for applicant on the appeal, Attorney Solomon
argued as to the harassment counts, that Grodowsky’s actions
did not constitute verbal harassment because his speech was
a form of expression protected by the state constitution, and
that he neither had the specific intention to harass the listener
nor did he act repeatedly with intent to cause alarm or an-
noyance, as required by the statute.
At the hearing on the appeal, held on January 31, 1992,
before Judge Cramp, with Solomon appearing for defendant
Grodowsky, and a legal assistant to the public prosecutor ap-
pearing for the State, after oral argument, the judge made a
decision from the bench, dismissing the abusive language
counts on constitutional grounds, with the consent of the
prosecutor, and dismissed the harassment counts, stating
there was no proof whatsoever of any intent on the part of
Grodowsky to harass anybody, that the State hadn’t proven
its elements of attempted harassment, and that merely the use
of loud or vulgar and abusive language does not constitute
harassment because that speech itself is not illegal and is
protected under the state constitution.
In an order dated and signed by Judge Cramp on February
10 and filed with the court on February 11, 1992, the supe-
rior court reversed Grodowsky’s conviction of two counts of
use of offensive language and two counts of harassment and
vacated the fines and penalties imposed upon him.
C. Respondent’s Alleged Failure and Refusal to Furnish
Information to the Union and Refusal to Bargain
As noted earlier, the Union’s predecessor had maintained
collective-bargaining relationships with Respondent on behalf
of cleaning employees employed in separate units at various
locations where Respondent was engaged as a cleaning con-
tractor. Among these locations was Automatic Switch at
Florham Park, involved in the present case, Bloomingdales’
in Hackensack, Exxon-Clinton, Exxon-Florham Park, Exxon-
Linden, and Continental Plaza-Hackensack. The last Auto-
matic Switch contract expired on June 15, 1989, the last
Bloomingdales’ contract expired June 15, 1989, the last
Exxon-Clinton contract renewal went to March 31, 1989, the
last Exxon-Florham Park and Exxon-Linden contract
addendums expired February 28 and August 31, 1989, re-
spectively, and the Continental Plaza-Hackensack contract
extension went to May 31, 1989.
As noted in Control Services, 305 NLRB 435 (1991),
Local 389, Service Employees International Union, AFL–
CIO, the predecessor Union, merged into Local 32B-32J,
Service Employees International Union, AFL–CIO and the
Charging Union here, on September 1, 1987.
As successor Union, Local 32B-32J, Service Employees
International Union, AFL–CIO, made a series of written in-
formation requests of Respondent. By certified letter dated
March 26, 1991, addressed by Union Attorney Ira Sturm to
then Respondent Attorney Joel Keiler, the Union sought var-
ious items of information for bargaining purposes on behalf
of the employees it represented in the Exxon-Linden, Exxon-
Florham Park, Exxon-Clinton, Automatic Switch-Florham
Park, Bloomingdales-Hackensack and Continental Towers-
Hackensack bargaining units. The letter was received by
Keiler’s office as evidenced by the union counsel’s receipt
of an executed return receipt. Although Sturm initially testi-
fied he believed there had been no formal response to this
request, a later search of his files showed some responses
which were subsequently offered in evidence by Respondent
after close of hearing without opposition by counsel for the
General Counsel and which I now receive in evidence as Re-
spondent’s Exhibit 25, also receiving in evidence counsel for
the General Counsel’s response as Respondent’s Exhibit 26,
reopening the record solely for this purpose.5
Sturm’s March 26, 1991 letter had requested for each of
the six units, an update of the information for all workers in
the units which the Company had previously provided in a
computer printout dated September 20, 1990. This informa-
tion was now provided in Respondent’s Exhibit 25(d). At
page 4 of his letter, Sturm had requested information regard-
ing reason for termination for five-named Bloomingdales em-
ployees, as well as a listing of all disciplinary actions since
January 1, 1990, exclusive of the period June to September
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1990, which the Company had previously provided, listing
names, dates, action taken, and reasons for actions. This in-
formation was now provided in Respondent’s Exhibits 25(b)
and (c) for all units, except Continental Towers-Hackensack,
for which no explanation has been supplied. The terminations
covered a period running from June 1990 to April 1991.
In his covering letters, Sturm states his belief that the ma-
terials encompassed by Respondent’s Exhibit 25 were pro-
duced during April 25 and May 28, 1991 negotiating ses-
sions.
Sturm’s March 26 letter also requests other kinds of infor-
mation all related to employee terms and conditions of em-
ployment under the expired agreements. For Exxon-Linden,
Sturm requests information as to changes in contractual vaca-
tions and sick leave benefits, when made, why made, and if
workers and union were notified. At Exxon-Florham Park,
Sturm sought the same information as well as the same infor-
mation regarding changes in health insurance based on hiring
before and after September 1, 1989. For Exxon-Clinton
Sturm, sought similar information regarding changes in
earned vacation at time of discharge, changes in prescription
program based on hiring before or after September 1, 1989,
and changes in unpaid sick leave for up to 90 days. At Auto-
matic Switch-Florham Park, Sturm sought the basic wage
rate schedule between January 1, 1988, and the present, and
if there were changes made, when and why made and wheth-
er workers and Union were notified. At Bloomingdales-
Hackensack, Sturm sought similar wage rate information, and
for Continental Towers-Hackensack, he requested similar in-
formation as to changes in contractual overtime pay after 8
hours since the contract expired, and information regarding
15 terminations made between June and September 1990, in-
cluding names, duties, action taken, and reasons.
Sturm closed the letter by asking for a response in 7 days,
for each information request listed, whether it would be pro-
vided, and if so, when. Since Keiler was the only individual
representing Respondent who was present at the negotiations,
he was the person to whom the request was sent.
None of the information requested related to workers’
terms and conditions of employment since the expiration of
the agreements described above has been provided to the
Union.
Sturm made another request for information on behalf of
the Union by certified letter dated September 13, 1991, ad-
dressed to Keiler. The return receipt was signed on his behalf
showing receipt on September 16, 1991. Information was
sought relating to terms and conditions of employment of
employees in each of the six bargaining units. As to Exxon-
Florham Park, Sturm requested Respondent to pay full vaca-
tion pay; if such pay is prorated, provide the formula; and
requested the number of days of vacation and dates taken for
the years running from May 1, 1986, to the present. Other
information was sought relating to data on employees work-
ing less than 40 hours per week since January 1, 1991; sick
days taken since May 1, 1988, and compensation therefor for
such days not used since the same date; and reasons why
compensation was not provided for unused sick days. Re-
quest was made to restore moneys deducted from the vaca-
tion of two-named employees in 1991, and if Control de-
clines to do so, to supply the reason.
Similar sick day information was sought for unit employ-
ees at Exxon-Clinton, Bloomingdales-Hackensack, Continen-
tal Towers-Hackensack, Exxon-Linden, and personal day and
vacation day information was requested for Automatic
Switch employees.
Respondent provided no written response, but certain of
the requests were discussed at a subsequent bargaining ses-
sion.
Finally, by letter dated September 26, 1991, sent regular
mail to Keiler, Sturm sought information from Respondent
regarding unit employees tested for drug use at Exxon-Lin-
den, Exxon-Florham Park, Exxon-Clinton as well as cor-
respondence from Exxon requesting such testing. The letter
also sought wage rates for all Automatic Switch employees
from May 1, 1987, through May 1, 1991; the overtime rates
on May 1, 1991; and an update on names, address, telephone
numbers, social security numbers, wage rates, hours worked,
daily average hours, dates of hire, and title of all Control em-
ployees at all six bargaining locations.
Respondent failed to respond in writing or to provide any
of the information sought in this request.
A bargaining session was held on November 12, 1991, at
the Union’s New Jersey office. Besides Sturm, Seth
Grodowsky and Eric Pierson, lead organizer, were present for
the Union, and Joel Keiler, attorney, was present for Re-
spondent. At this point negotiations had been ongoing for in
excess of a year. From time to time, information requests had
been made, but only once had information been provided.
At this meeting, the union people had decided to go
through the three information request letters and pin down
the Employer’s position on the demands and whether it
would provide the information. Copies of the letters were
provided to Keiler after he said he didn’t have them.
At the session Keiler agreed to provide some of the infor-
mation, but Sturm never received any response, and neither
did the Union directly. When Sturm asked to set up a meet-
ing to continue negotiations as to the so-called six 10(j) sites,
Keiler said he would have to get back to him since he wasn’t
then sure about his schedule. Approximately 10 days later,
Keiler called Sturm. Sturm asked about setting up bargaining
sessions for two other New York employers where Control
Services was providing cleaning services, St. Francis College
and a group of Stern Department Stores on Long Island. A
meeting date was set for January 7. Sturm then asked if they
could set a date to resume negotiations for the 10(j) loca-
tions, in New Jersey. Keiler responded, ‘‘we’re at impasse,
and there’s no need to meet anymore on those locations.’’
He explained that for the last two meetings they had dis-
cussed primarily requests for information and they weren’t
really negotiating. They had gone over in great length and
detail his proposals regarding the Clinton location, and that
his position would be the same at the other five locations.
He said that whatever his final offer was as to the Clinton
location, regardless of where the negotiations were held or
what we talked about, even though we really hadn’t even
talked about the other five sites, it would be the same and
there would be no purpose in any further meetings. Sturm re-
plied in a sarcastic manner, ‘‘ok great, your calling an im-
passe,’’ to which Keiler responded in words to the effect of,
go file another charge at the Labor Board. After this meeting,
there were no further conversations between the Union and
Keiler concerning the six sites.
In early February 1992, Sturm received a call from another
law firm saying they were going to represent Control in the
451CONTROL SERVICES
negotiations. Sturm confirmed this in a call to Keiler. Nego-
tiations with this firm did commence and meetings were held
regarding the 10(j) sites.
During his cross-examination, Attorney Sturm acknowl-
edged that at a subsequent meeting held with Attorney Steve
Ploscowe of the successor law firm, Grotta, Glassman &
Hoffman, he learned that Control Services had lost some of
the 10(j) sites, apparently the three Exxon sites, and as a re-
sult, as their client was no longer the contractor there,
Ploscowe took the position they no longer had an obligation
to bargain. Respondent lost its contracts for the Linden site
on February 14, 1992, for Florham Park on May 1, 1992,
and Clinton on May 1, 1992.
Four or five bargaining sessions were held regarding the
three remaining sites, Continental Plaza, Automatic Switch,
and Bloomingdales, among others, and, according to Sturm,
they made substantial movement on all the terms of proposed
successor agreements. These formal meetings were concluded
by the end of March, but the parties have continued to have
at least 15 off-the-record contacts, including calls and meet-
ings, to date. In view of those facts, Sturm stated on the
record that the Charging Union was not contending there was
a refusal to bargain after February 10, 1992, the date of the
first meeting.
During his meetings with new counsel, Sturm reviewed the
Union’s request for the information in the 1991 letters not
supplied and Sturm testified that information was finally pro-
vided belatedly more than a year after the first written re-
quest and 6 months after the second and third letters. Thus,
according to Sturm, the Charging Union was not claiming
continuing failure to provide the requested information ex-
cept as to the three Exxon locations.
Sturm’s position, taken on behalf of the Union, while on
the witness stand, is disputed by counsel for General Coun-
sel, who, in questioning of Sturm, established that he did not
review the information provided in bulk form by Attorney
Ploscowe at their March 1992 meetings but, rather, gave it
to Seth Grodowsky to review.
One document, representing information provided by Re-
spondent on or about March 3, 1992, was in response to
Sturm’s March 26, 1991 letter, and comprised lists of em-
ployees, their address, telephone numbers where available,
and the other data sought with respect to them, as of Feb-
ruary 28, 1991, employed at Continental Plaza-Hackensack,
Automatic Switch, and Bloomingdales-Hackensack.
Seth Grodowsky testified that he had assisted in the prepa-
ration of the written information requests. He had received
information and complaints from workers regarding Re-
spondent’s failure to provide contractual and statutory bene-
fits and changes that had been made in their conditions of
employment following expiration of the contracts. This infor-
mation sought would verify and catalogue these changes. For
example, according to Grodowsky, the Union had previously
filed charges under the Fair Labor Standards Act regarding
failure to pay overtime pay and wanted now to determine if
current complaints by workers regarding their failure to re-
ceive overtime pay were valid. Another employee complaint
concerned the alleged prorating of vacation pay for union ac-
tivists at Exxon-Florham Park which could have been raised
during bargaining which was still ongoing for this site. One
item requested, names of employees related to Jose Ormenio,
was sought because there was concern expressed by employ-
ees to union agents that this individual, a supervisor at
Exxon-Florham Park, was firing workers and hiring his fam-
ily members in their place and providing better treatment to
them.
Other information regarding employee terminations was
being sought as an aid to representing unit employees in un-
employment compensation hearings and to provide bases for
seeking employee reinstatements during negotiations with
Respondent. Union Attorney Sturm had testified that the in-
formation which the Union sought would provide the facts
on unilateral changes in contractual benefits so that the mat-
ters could be grieved for periods before the contract expira-
tions or raised in negotiations subsequently. The names and
addresses of employees would give the Union greater access
to unit members who worked evening hours and who could
not be approached at many of the worksites. Established vio-
lations under expired argreements could form the basis for
self-help actions by the Union, including picketing and
strikes. The establishment of a pattern of violations, in reduc-
ing and changing benefits, could help form the basis for
RICO (Racketeer Influenced and Corrupt Organizations) law-
suits against Respondent. Finally, the information could help
the Union determine the bona fides of the Respondent’s eco-
nomic proposals made at the negotiation table.
As to the requests for information about vacation pay and
sick leave, for example, the Union wanted to obtain the facts
as to employee receipt of these benefits so they could be
raised in negotiations. In particular, regarding drug testing,
the Union wanted to bargain about how the drug tests would
be administered.
Grodowsky testified that neither he nor the Union ever re-
ceived the information sought in the three letter requests
which were raised and discussed in depth at the November
12, 1991 bargaining session with Joel Keiler. He would have
known if responses had been received because it was his re-
sponsibility to maintain the files. As to the vacation day re-
quests contained in the September 13, 1991 demand letter,
Grodowsky recalled Keiler responding ‘‘don’t hold your
breath. On second thought, hold your breath’’ about receiv-
ing them.
As to the requests generally, at the meeting Grodowsky of-
fered to go personally to Control Services’ offices and make
xerox copies of timecards and other records, but Keiler re-
fused to permit it, without explanation.
When Grodowsky was asked on cross-examination wheth-
er he thought some of the Union’s requests for information
starting in 1983 with regard to personal days, and vacation
days in its September 13, 1991 demand was burdensome, he
answered that Keiler never objected to producing the infor-
mation because it was burdensome to locate or produce, or
offered to produce 2 or 3 years of records instead of 8 years,
he never responded at all to the requests, he just totally
evaded producing anything.
Eric Pierson, lead organizer for the Union, testified that he
attended approximately three bargaining sessions held in
early 1991 with Attorney Ploscowe for Respondent. At the
second meeting, the Union asked if Control would provide
the information that had been asked for but had not yet been
provided, and referred to the three letters which listed the in-
formation still sought. Ploscowe at this meeting then handed
over what Sturm had earlier described as in bulk form, a
batch of documents. However, after Grodowsky had re-
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
viewed them at the meeting, it appeared that the bulk of
them related to other employers, among them St. Francis
College, where the Union had an organizing campaign under-
way, and the only information responsive to the Union’s
1991 written requests were ADP printouts of employee lists
for the three 10(j) sites which the Respondent was continuing
to service, previously described.
Ploscowe had said this is what they gave me when he
handed them over. When Grodowsky asked will we be get-
ting the rest of it, Ploscowe said he would look into it. No
other information was provided at the third bargaining ses-
sion, in March 1992, and Pierson knows of none provided
thereafter. The record contains all the documents and written
replies provided by Respondent, and they represent only a
partial response to the information requests made by the
Union.
D. Credibility Resolutions
I am prepared to and do credit Leandra Perez and Juan
Perez with respect to the testimony they gave attributing
threats of reprisal and discharge to Gerardo Castellonese for
supporting the Union, and the threat of discharge of Juan
Perez attributed to Walter Solari in the presence of Gerardo
and Salvatore Toppi, as well as the antiunion comments and
criticism of Leandra Perez’ adherence to the Union expressed
by Toppi to her. In contrast to the serious conflicts in testi-
mony between Toppi and Castellonese, and the variances in
testimony shown by Toppi, and by Toppi and by
Castellonese between their testimony in this proceeding and
at the criminal trial, both Perezes made generally credit wor-
thy presentations.
Leandra Perez is also credited, as against Solar, as to the
number and size of boxes and location in the basement
where she was directed to flatten and remove them and that
she was not required to complete the assignment imme-
diately. I credit Leandra further that she performed the work
she was assigned on the date of her discharge. It is note-
worthy that no Respondent witness, neither Solar nor any
other, testified that any other employee was directed to re-
move the boxes once Leandra had allegedly failed to do so,
in contrast to the testimony regarding the manner in which
Martha Arismendi’s unfulfilled assignments were promptly
performed by others at the supervisors’ directions.
Both Perezes corroborated each other as to Castellonese’s
expressions of hostility to the Union. Their testimony as to
Gerardo, as well as Toppi’s animus, is consistent with the
findings previously made regarding these supervisors on
which the Board commented in Control Services, 305 NLRB
435.
Solar’s credibility is seriously undermined by her testi-
mony placing employee Rodriguez nearby when she brought
Leandra to the basement, and asked her why she hadn’t re-
moved the boxes and was met by an alleged screaming rejec-
tion of the assignment. Rodriguez, himself, swore the argu-
ment he witnessed shortly before Leandra’s discharge took
place on the fourth floor. Later, Solar could not herself place
any other employee nearby. This alleged outburst was clearly
out of character with the Leandra Perez I observed on the
witness stand and any aspect of her behavior and conduct
which was developed through testimony of both General
Counsel and Respondent witnesses and I conclude it did not
happen. Even Solar testified that Leandra agreed to do the
work when she was assigned it. But Solar did not testify that
she insisted it be performed that day. Leandra is believable
when she says if she had known it was an immediate assign-
ment she would have done it earlier. Only in firing her did
Solar claim it was an assignment requiring prompt compli-
ance, asking her why she didn’t do it 5 days ago. Yet, the
termination notice states that Leandra was given the oppor-
tunity to do it, presumably over the 5-day period.
Solar’s testimony also contains serious discrepancies as to
the size and location of the boxes Leandra was assigned to
remove, describing them at different times as both medium
size, and small, and placing the boxes at different times, on
the fourth floor, on the first floor, and in the library base-
ment. Additionally, serious question is raised as to date of
inclusion of the Spanish portion on Leandra’s termination
notice, given not only Leandra’s credible denial that she was
presented with a reason for her discharge in her own lan-
guage but the additional evidence apparent on the face of the
document itself from which one may reasonably infer that
the Spanish portion was added after Solar signed and pre-
sented the document to Leandra.
It is also noted that Manager Solari did not dispute
Leandra’s later approaching him following her discharge,
when he not only did not dispute her claim of having done
the job but he refused to become involved, to either review
or reverse Solar’s actions which he, himself, had earlier ap-
proved.
Juan’s attribution of a threat from Solari on October 4,
1991, was corroborated by Grodowsky and is credited.
Juan’s testimony about Gerardo’s approach to him on the job
on October 10, threatening him with firing if he continued
to talk to the Union, is also credited. Gerardo’s refusal to ac-
knowledge that he ever told Juan to go into work at 5:30
p.m. while Juan was engaged in talking with Union Agent
Grodowsky, in the face of Juan’s testimony as well as
Salvatore Toppi’s contrary recitals is hardly credible and pro-
vides further grounds to discredit him. Juan Perez’ presen-
tation was straightforward, direct, responsive, and highly
credible. While I find that he did receive vacation pay in
June 1991, for his services performed that year for both
Sandoz and Automatic Switch—contrary to the General
Counsel’s assertion the ADP record shows the 2-week pay-
ment as vacation pay and not for services performed—I do
not find that his error on this point is such that it should
serve to discredit the main thrust of his testimony. It was not
a desire or need for vacation pay which motivated Juan in
requesting a vacation, although it was a matter about which
he was concerned and continued to raise as late as October
4, 1991. And the fact that he had already received payment
did not enter into the issue as to whether Juan had received
advance permission to take a week’s leave after 3 years dur-
ing which he had admittedly not taken so much as a day off
at Automatic Switch. Juan’s confusion about the dates when
he raised his questions about not having previously received
a vacation at Automatic Switch, similarly is not a basis for
impeachment of him as a witness.
I also credit Juan that he sought and received such author-
ization to take the time off during his conversation with
Solari weeks before he turned in his keys. Solari did not
deny that such a conversation was held, only that he could
not recall one.
453CONTROL SERVICES
I also find significant the disparity between Solari’s ac-
count of his conversation with Juan on October 11, when he
told him he had to come back to work after 3 days, and Ida
Villanueva’s account that Solari told Juan that he should be
back within 3 days, and that the rule is if in 3 days they are
not back, then they don’t have a job any more. Later, when
asked a leading question, Villanueva now agreed that if
somebody comes who has no permission at all, they get at
least the 3 days (for vacation). But her earlier, unaided testi-
mony was otherwise.
I do not credit Martha Arismendi’s testimony that employ-
ees Mario and Carlos Zunigos had a bottle of acid when they
entered the bathroom to clean the stained urinals which she
had not cleaned in March 1992. There was sufficient con-
vincing contrary testimony that Respondent had ceased using
the acid as a cleaner some years before. Although Juan Perez
testified he had used a strong acid solution for removing
stains on several occasions he could not recall when he last
used it.
Testimony from other employees was also telling that
Arismendi was in error in concluding that she was the only
employee directed to use the pumice stone in cleaning dif-
ficult bathroom stains.
I also find that the water fountain that the two supervisors
and Manager Solari inspected, and which the supervisors say
they cleaned on the evening of Arismendi’s discharge, was
streaked with cleaning solution, which had also left streaks
on the floor, contrary to Arismendi’s assertion.
I also credit employee Martha Hernandez’ account of the
substantial time it took her and the cleaning solutions she
used to remove the dirt from the chrome arms and legs of
the chairs located in the ladies’ bathroom at Automatic
Switch I do have some questions as to whether Arismendi
told her she would not clean them, given her change in testi-
mony when asked Arismendi’s position, first testifying she
said only she didn’t clean them (Tr. 563), and later changing
this to ‘‘she told me she was not going to clean them’’ (Tr.
567). This latter response, however, appears to have been
something Arismendi may have added after reporting to Her-
nandez that she had tried to clean them with a cloth but the
dirt and stains didn’t come off.
While there also appears to be a conflict between Gerardo
Castellonese’s initial testimony regarding his first conversa-
tion with Arismendi in March about cleaning the urinals, in
which she refused to put her hand in the urinal, and his
memorandum which shows she complained that the condition
had existed since she had retained the previous December, I
am also prepared to credit Gerardo that Arismendi did tell
him of her unwillingness to use the pumice stone in the man-
ner he directed, and, further, that she was unable to clean the
stains and dirt from the furniture, particularly, in view of her
own admissions in these matters.
As to the incidents involving Seth Grodowsky, I find that
Salvatore Toppi did threaten him by coming toward him with
raised fists on October 4, 1991, and that Toppi again en-
gaged in similar conduct for which he was restrained by
Gerardo on October 23. I have referred earlier to the incon-
sistent and partially incoherent aspects of Toppi’s testimony.
I note here that Toppi did not deny his October 4 conduct,
and that, in spite of the matters omitted from Grodowsky’s
affidavit, his testimony provided the more credible narrative
of the events on both October 4 and 23.
I also reject the testimony offered by Respondent that
Grodowsky offered to fight Toppi outside or to hit him. The
coherent, more complete account given by Grodowsky in his
criminal trial examination is generally credited. I also note
here the significant variations between Gerardo’s criminal
trial testimony and his testimony in the instant proceeding,
previously described, which seriously undermine Gerardo
Castellonese’s credibility as a witness.
Analysis and Conclusions
On the basis of the probative evidence and the credibility
resolutions I have made, I conclude that General Counsel has
failed to prove that Castellonese in mid-September 1991,
threatened Juan Perez with discharge because he engaged in
activity in support of the Union as alleged in paragraph 9 of
the complaint. While Juan testified he was directed to cease
talking to Grodowsky and go to his job, Juan denied that
Gerardo on this occasion said anything else about his job
(Tr. 165). I conclude that both Solari and Castellonese on
October 4, 1991, threatened Juan with discharge because he
was talking to a union organizer, a member of the Union, in
violation of Section 8(a)(1) of the Act. It is evident from
Juan’s account of the threats made that neither Castellonese
nor Solari conditioned their threat on Juan’s failure to report
in for work by 5:30 p.m. Even if they had, such conduct
would nonetheless be unlawful because by uttering it, both
Respondent agents were thereby interfering with the right
Juan enjoyed under the expired collective-bargaining agree-
ment to have access to and to confer with the Union’s rep-
resentatives at all times on the premises of the employer, a
term of employment which survived the expiration of the
agreement and which could only be altered by the parties
bargaining to agreement or reaching a good-faith impasse,
neither of which had taken place. R.J.B. Knits, 309 NLRB
201, 207 (1992); Control Services, 303 NLRB 481, 493
(1991) (and cases cited therein), involving the same Auto-
matic Switch location as well as Bloomingales; Appelbaum
Industries, 294 NLRB 981, 982 fn. 9 (1989).
Furthermore, Respondent interfered with the rights of em-
ployees under Section 8(a)(1) of the Act on October 4, 1991,
when Salvatore Toppi physically threatened Union Organizer
Seth Grodowsky in the presence of employee Juan Perez if
he failed to leave the Automatic Switch premises. Assaulting
or threatening to assault nonemployee organizers in the pres-
ence of employees has long been held by the Board to inhibit
employee exercise of protected rights because the witnessing
employees are likely to infer that the employer would retali-
ate against them as well in some fashion for their union sup-
port, Shenanigans, 264 NLRB 908 (1982), enfd. in relevant
part 723 F.2d (7th Cir. 1983); Heavenly Valley Ski Area, 215
NLRB 359 (1974), enfd. 552 F.2d 269, 273 (9th Cir. 1977).
I also conclude that Respondent violated Section 8(a)(1) of
the Act, when, on October 10, 1991, Gerardo told Juan Perez
who was talking with Grodowsky, to go to work because he
might have problems with his job, and, when, later in the
evening, Castellonese, accompanied by Salvatore Toppi, told
Juan to cease talking to the Union or he would be fired and
that he was going to tell the same thing to the other employ-
ees.
Turning now to the allegations of unlawful discharge, I
will deal first with Leandra Perez.
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent’s hostility to union organization is evident
on this record alone, apart from its history of prior unfair
labor practices which forms the background to its current
conduct and serves to bolster a finding of unlawful motive
against employees engaged in union activities. Early in the
year in which both Perezes were discharged, Assistant Man-
ager and Supervisor Gerardo Castellonese informed employ-
ees gathered in the Automatic Switch office to stop talking
about the Union because something big was about to happen
to them. While not alleged as an independent unfair labor
practice, probably because time-barred under the Act, it
nonetheless sheds considerable light on Respondent’s motive
to restrict union activity and retaliate against employees who
engaged in such conduct.
Later in March, the month before her discharge, Super-
visor Toppi told Leandra the Union was no good, it only
wanted the monthly payment, and the following day accused
her of having two faces, because while she had appeared to
agree with him the day before she was now encouraging
union support among her coworkers. Thus, Leandra Perez
was now marked as a strong union adherent.
Within a month she was fired for ostensibly failing to fold
and dispose of a large number of boxes left in the basement
of the Sandoz factory. Yet, as I have earlier noted, there is
serious question whether the boxes were located in her as-
signed work area, there were approximately 45 of them and
they were large in size, normally assigned for handling by
male porters, and contrary to the terms of the original assign-
ment to dispose of them, on her discharge Leandra learned
that the work was supposed to have been done immediately.
According to Leandra’s credited testimony the assignment
was made at 3 or 3:30 p.m. on a Friday and she disposed
of them on the following Tuesday, before her discharge.
Nonetheless, Respondent seized on this alleged nonfeasance
to discharge an employee who had never before received a
disciplinary warning for this infraction.
While a number of witnesses testified to Leandra’s history
of mixed performance on the recycling of disposable card-
board boxes it had never before become the subject of a
warning. When following her precipitate discharge Leandra
appealed to the manager in charge she was rebuffed and de-
nied any response other than that her supervisor had made
the decision. None of Leandra’s earlier warnings or suspen-
sions, some of which she disputed, played a role in Respond-
ent’s decision to fire her which was based on the missed as-
signment and her negative reaction to her supervisor about
it. The supervisor’s presentation was seriously flawed by a
serious discrepancy as to location with another employee as
to whether Leandra’s argumentative and defiant attitude was
witnessed as well as the evidence that, contrary to the super-
visor’s testimony, Leandra did not receive a Spanish trans-
lation of her termination notice. I have previously found that
Leandra did not refuse to perform the assignment or lose
control when confronted by Supervisor Solar on the day of
her discharge.
Based on the testimony summarized above and the record
as a whole, I conclude that the General Counsel has estab-
lished by a preponderance of the evidence that Leandra
Perez’ protected conduct was a substantial or motivating fac-
tor in her discharge. In defense to the alleged unlawful na-
ture of the discharge, Respondent points to the fact that
Leandra, while fired from her duties at Sandoz, was retained
as an employee at Automatic Switch, and, therefore, it har-
bored no discriminatory motive toward her. Yet, there was
strong motive for Respondent to seek to insure that the union
message did not get out effectively to Sandoz’ employees.
While the Union had continued bargaining and representation
rights at Automatic Switch, and some access had to be ac-
corded organizers there at least by virtue of the 10(j) injunc-
tion and expired contractual terms, no such right had been
successfully asserted at Sandoz by the Union where access
was restricted and hampered by security and physical limita-
tions. It was, therefore, to Respondent’s interests to insure
that a known strong adherent such as Leandra be unable to
spread the Union’s message, or act as a union conduit as she
had been doing, by removing her from the Sandoz unit pay-
roll.
Based on the foregoing, I also conclude that Respondent
has failed to prove by a preponderance of the evidence that
Leandra Perez would have been fired even in the absence of
her protected conduct. See Transportation Management
Corp., 462 U.S. 393, 400 (1983).
Considering Juan Perez’ discharge, like his wife, Leandra,
he worked at both Sandoz and Automatic Switch, and like
her, was seen conferring with the union representative on his
visits to the Automatic Switch factory access area. Juan, even
more than Leandra, who had received antiunion remarks, was
the recipient of direct threats of discharge because of his
continued association with union agents. Those threats came
not only from his supervisors at Automatic Switch but from
the manager of Respondent’s operations at both locations,
among others. Respondent representatives became so in-
censed with the Union’s presence at Automatic Switch that
Union Organizer Seth Grodowsky became the recipient of
physical threats. The threats, in Juan’s presence were only
the most physical manifestation of Respondent’s hostility to
union organization and to employees who showed adherence
to it.
The most pointed threat, which, prefigured the action
which ultimately, within 2 weeks, removed Juan from Re-
spondent’s employ, was the approach by his two Automatic
Switch supervisors to his work station to inform him his con-
tinued protected activity-association with the Union—would
result in his discharge.
I have found that Juan made timely requests for leave;
when he took a 1-week leave from both work locations, the
only time off from Automatic Switch in his 3 years there,
Respondent summarily discharged him, claiming, contrary to
the findings I have made, that he had overstayed his author-
ized leave by 2 of the 5 days.
Respondent could not rely on any facet of Juan’s work
performance to fire him; it is clear, and Supervisor Toppi ad-
mitted, that Juan Perez was the best cleaner Respondent had,
and his attendance record at Automatic Switch was perfect.
I conclude that Respondent used Juan’s alleged unauthor-
ized 2 days of leave as a pretext to get rid of the most out-
standing union adherent among its employees, and this vio-
lated Section 8(a)(1) and (3) of the Act. Respondent could
not overcome the evidence supporting this result and failed
to show it would have fired him absent his union activity.
I now discuss Martha Arismendi’s discharge.
Unlike the case with Leandra Perez, where great or sole
reliance was placed on one incident of failure to perform as
the ground for discharge, in the case of Arismendi the record
455CONTROL SERVICES
shows a series of events involving her work performance
which culminated in her discharge.
Even Arismendi, herself, admits a refusal to use equipment
provided her or to use her hands in the manner directed in
cleaning a stain in the urinals in the bathrooms assigned to
her. The pumice stone and the necessity of working close to
the stain, I have found were not methods of cleaning devised
to harass Arismendi but rather were recognized and practiced
procedures. Her refusal to follow directions on the urinals
cannot be excused because the Union advised her to only fol-
low employee practice. Arismendi failed to determine accu-
rately Respondent’s work practice and, in any event she can-
not rely on her own distaste for the assignment even if erro-
neously affirmed by the union agent she contacted.
As to the chair cleaning assignment, Respondent has pro-
duced persuasive evidence that the timing and nature of the
assignment did not originate with it, but came about as a re-
sult of a complaint from its client Automatic Switch. Thus,
objective considerations drove Respondent in seeking correc-
tion of the problem in a timely manner, hardly consistent
with a motive to harass. The cleaning solutions provided
Hernandez were not unusual nor were they unavailable to
Arismendi. Her failure to remove any portion of the dirt on
the chrome arms and legs cannot be adequately excused or
justified by the time the assignment actually took. Arismendi
received a warning for failing to make the effort as well as
for exhibiting an obstructive attitude.
Finally, I am convinced that Arismendi made no effort
again to correct the messy and soiled condition of the water
fountain which I have found she had caused in her initial
cleaning effort. Rather than cooperating to correct the prob-
lem, Arismendi again denied there was one, and later pro-
tested her final warning and termination by threatening to
seek assistance at the Labor Board.
With respect to none of those incidents has General Coun-
sel adduced sufficient evidence to show a discriminatory mo-
tive. While Arismendi was a successful participant in of an
earlier unfair labor proceeding, and while there is no ques-
tion that Respondent harbored animus against the Union,
there is nothing in its current conduct toward Arismendi
which showed a singling out, a disparate treatment, timing of
events, even protected conduct of which Respondent had
knowledge other than Arismendi’s repeated threats to contact
the Labor Board after her warnings, to which it reacted nega-
tively which would support even a prima facie showing that
Arismendi’s work assignments or discharge was motivated
by her union involvement. See St. Ann’s Episcopal School,
230 NLRB 99 (1973).
Alternatively, assuming that counsel for the General Coun-
sel has established a prima facie case that Arismendi’s
known union adherence arising from the facts of the earlier
case was a substantial or motivating factor in her March and
April 1992 work assignments and discharge, I conclude that
Respondent has established by a preponderance of evidence
that it would have fired Arismendi anyway for valid reasons
established on the record. See Transportation Management
Corp., cited supra. Accordingly, I recommend dismissal of
the allegations of the complaint alleging her unlawful warn-
ings, harassments, and discharge.
The issue is posed as to whether Respondent retaliated
against its employees because they supported Local 32B by
filing a criminal complaint against Union Organizer Seth
Grodowsky.
A threshold issue is raised by Respondent’s argument that
it did not file the charges but that rather Castellonese and
Toppi did so individually in their own right. Based on the
facts I have previously found, I now conclude that both su-
pervisors were acting in their representative capacity and as
agents for Respondent when they signed criminal complaints
against Grodowsky. The incident arose on the premises
where Control Services’ employees performed their cleaning
services and arose out of a dispute involving the union orga-
nizer’s right to contact its employees and to maintain access
at the facility as against Respondent’s interest in circumscrib-
ing and limiting that right. In seeking to enforce Respond-
ent’s directions to employees and organizer, the two super-
visors were acting on behalf of their employer. In responding
to the supervisors Grodowsky was criticizing Respondent in
its treatment of employees. In pursuing the criminal prosecu-
tion they were acting on behalf of their principal in penaliz-
ing any interference with their employer’s purposes. Only in-
cidentally, in my judgment, were they seeking to vindicate
their own interests in being free from alleged threats and har-
assment. This conclusion is supported as well by the timing
of the filing of the complaints, Vice President Martins’ sign-
ing of Castellonese’s complaint as witness, and the apparent
employment of Respondent counsel in presenting the case in
municipal court.
In Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 744
(1983), the Court held that the prosecution of an improperly
motivated suit lacking a reasonable basis constitutes a viola-
tion of the Act that may be enjoined by the Board. The
Court further noted that once judgment goes against the em-
ployer in the state court, or if his suit is withdrawn or is oth-
erwise shown to be without merit, the Board may adjudicate
the underlying unfair labor practice case. Id. at 747–748. The
Board has since applied the teachings of Bill Johnson’s,
which applied to civil lawsuits, to criminal prosecutions.
Johnson & Hardin Co., 305 NLRB 690, 691 (1991).
The inquiry is as to whether the criminal complaints lack
a reasonable basis in law and fact and whether the lawsuit
was filed with a retaliatory motive. Id. See also New Jersey
Bell Telephone Co., 308 NLRB 277, 281 (1992).
As to the first inquiry, the case law supports the conclu-
sion that only the outcome of the final adjudication is consid-
ered in determining whether the criminal prosecution lacks a
reasonable bases. See Bill Johnson’s Restaurants, 290 NLRB
29, 31 (1988) (Supplemental Decision and Order); Teamsters
Local 520 (Alberici Construction), 309 NLRB 1199, 1200
(1992) (‘‘the Board has consistently interpreted Bill John-
son’s Restaurants to hold that if the plaintiff’s lawsuit has
been finally adjudicated and the plaintiff has not prevailed,
its lawsuit is deemed meritless.’’); Summitville Tiles, 300
NLRB 64, 65 (1990); Machinists Lodge 91 (United Tech-
nologies), 298 NLRB 325, 326 (1990), enfd. 934 F.2d 1288
(2d Cir. 1991); Phoenix Newspapers, 294 NLRB 47, 49
(1984).
As the final adjudication of the merits of the criminal case
resulted in an appellate court dismissal of all charges, both
the offensive language and harassment counts, the former on
constitutional grounds and the latter for insufficient evidence
as well as because of constitutional protections, I conclude
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the criminal prosecution lacks a reasonable basis in law
and fact.
As to the second inquiry, whether the suit was filed with
a retaliatory motive, the Board weighs a variety of factors.
Timing is examined. Teamsters Local 520, supra. Here, the
complaints were filed 1 week following service of the
Union’s first charge on Respondent, on October 17, 1991, al-
leging Leandra Perez’s April, 1991 discharge as discrimina-
tory. In the argument preceding the criminal complaints,
Grodowsky was seeking Leandra’s husband, Juan Perez’s re-
instatement. The Board also considers other indicatiors of re-
taliatory motive, such as threats, demeanor, and credibility.
See Bill Johnson’s Restaurants, supra at 31.
Just 3 weeks prior to the filing of the charges, Toppi, one
of the complainants, had physically threatened Grodowsky in
the presence of employee Juan Perez, if he did not imme-
diately leave the facility. The filing of the complaints were
thus extensions and continuations of that retaliatory conduct.
Furthermore, both supervisors have been thoroughly discred-
ited in their presentation of the facts which led to the filing
of the charges. Also, in filing the charges, Respondent’s
agents and Respondent must be deemed to have knowledge
of the absence of any constitutional basis for the abusive lan-
guage criminal counts, and the degree to which they colored
the harassment counts. See Bill Johnson’s Restaurants, 461
U.S. 750, supra. It is also evident that the Union, and Seth
Grodowsky, in particular, believed that the Union was privi-
leged to remain at the Automatic Switch premises for 10
minutes beyond the starting time. In disputing Respondent’s
failure and refusal to recognize that privilege on October 23
the Union’s agent Grodowsky was defending that privilege,
as well as contesting Respondent’s treatment of employee
Juan Perez, and letting other employees know about it as
well albeit ultimately accompanied by the use of rough lan-
guage. That Grodowsky had no interest in harassing the su-
pervisors is established by his purpose as noted, as well by
the fact that he left the premises without further incident that
evening. Respondent was well aware of Grodowsky’s pub-
licizing its treatment of Juan Perez. Thus, Respondent’s sub-
sequent criminal prosecution served no useful purpose other
than one of retaliation.
Finally, in instituting and pursing the criminal case against
Grodowsky, the history of Respondent’s hostility to union
access at its Automatic Switch facility, resulting in a 10(j)
injunction, as well as its discriminatory treatment of Juan
Perez, must be considered and weighed in determining that
it was, indeed, motivated by an intent to retaliate, when it
authorized and ratified the filing of the criminal complaint
against Grodowsky by its two supervisors. I, thus, conclude
based on all of the foregoing that Respondent was not acting
in good faith when it filed and pursued the criminal com-
plaints, and thereby violated Section 8(a)(1) of the Act.
Turning to the issue of Respondent’s alleged refusal to
bargain, it is evident, and I conclude, that Attorney Keiler
exhibited a closed mind on behalf of his client when he told
Sturm that an impasse had been reached, and there was no
purpose in meeting on the other five 10(j) units since Re-
spondent’s position would be unchanged from the ones it
took on the Exxon-Clinton unit. The expired contracts for the
units were not identical, the problems in each unit and the
changes made in terms and conditions of employment were
also different for each unit and affected employees dif-
ferently. It was clearly premature for Respondent to declare
an impasse when the Union and Respondent had not dis-
cussed these units at a single meeting. See Betlem Service
Corp., 268 NLRB 354 (1983); See also Excavation-Con-
struction, 248 NLRB 649, 650 (1980). Obviously, the Union
believed the information it had sought would assist its for-
mulation of negotiation proposals and the raising of issues
involving individual employees at the bargaining table. No
impasse could be reached where the employer has failed to
provide the union with requested information. United Stock-
yards Co., 293 NLRB 1, 3 (1989); I.T.T. Rayonier, Inc., 305
NLRB 455, 446 (1991). Keiler’s criticism of the time the
parties had taken at two prior meetings in reviewing these re-
quests is, thus, no defense to the government’s claim that
when it came time to bargain about contract renewals on the
five remaining units, including the two other Exxon locations
where Respondent’s service contracts had not yet expired.
Respondent had abdicated its bargaining obligation. Until
new counsel picked up the bargaining some 3 months later,
Respondent had refused to bargain in good faith in violation
of Section 8(a)(1) and (5) of the Act.
With respect to the information requests, the facts show
that much of the union’s requests for data on changes in em-
ployee benefits since contract expirations, updates on unit
personnel, some separations and reasons for them, and appli-
cation of drug testing in each of the units had not been sup-
plied.
The Board test for determining whether an employees is
obligated to supply a union with requested information is
whether ‘‘there is a probability that such information is rel-
evant and will be of use to the union in fulfilling its statutory
duties and responsibilities as the employees’ exclusive bar-
gaining representative.’’ AGC of California, 242 NLRB 891,
893 (1979), enfd. 633 F.2d 766 (9th Cir. 1980); NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967). The standard is
a liberal one, akin to that governing discovery, and merely
requires that the information requested have ‘‘some bearing’’
on the issue pending between the parties. Postal Service, 289
NLRB 942 (1988), enfd. 888 F.2d 1568 (11th Cir. 1989);
Pfizer, Inc., 268 NLRB 916 (1984), enfd. 763 F.2d 887 (7th
Cir. 1985). Furthermore, information relating to the terms
and conditions of employment of unit employees is presump-
tively relevant and necessary. Island Creek Coal Co., 292
NLRB 480 (1989); Coalite, 278 NLRB 293 (1986). And the
employer must assert a legitimate defense to its production
to avoid the obligation, see Detroit Edison Co., 440 U.S. 301
(1979), something which Respondent has failed to do.
The information requested in the three letters clearly meet
the test of presumptive relevance, as they all related to terms
and conditions of employment and were sought to assist the
Union in framing renewal contract demands and assisting
unit employees in retaining and recovering preexisting bene-
fits at the bargaining table. The other reasons which union
witnesses advanced for the production of the information all
relate to its duties as bargaining representative, in seeking
unemployment compensation, enforcing minimum wage and
hour regulations, engaging in self-help, or pursuing RICO
lawsuits.
The drug testing information, in particular, relates to a
mandatory subject of bargaining and the employer’s obliga-
tion under the Act to provide the representative of affected
unit employees with the opportunity to bargain about its im-
457CONTROL SERVICES
plementation. Johnson-Bateman Co., 295 NLRB 180, 182,
188 (1986).
Respondent claims, but has failed to show that production
of the requested data would be unduly burdensome. As
Grodowsky noted, Counsel Keiler never raised this issue at
the parties’ meetings, and, in any event, never requested to
bargain with the Union over the costs of its production. See
General Motors Corp. 243 NLRB 186 (1979).
Even Respondent’s limited production of certain employee
data, in March, 1992, was belated and thus falls short of
meeting Respondent’s obligation under the Act. An unrea-
sonable delay in furnishing relevant information or incom-
plete production of requested information can be just as vio-
lative of the Act as an outright refusal to produce. Tubari
Ltd., 299 NLRB 1223 (1990).
Based on the foregoing, I conclude that Respondent has
violated Section 8(a)(1) and (5) of the act by failing and re-
fusing to provide relevant information to the Union.
I have earlier noted that a union’s right to access to a job-
site as provided in an expired collective-bargaining agree-
ment, continues in effect and may not be unilaterally altered
without first bargaining to agreement or good-faith impasse.
R.J.B. Knits, suspra, and Control Services, supra, and other
cases previously cited. By physically threatening Grodowsky,
by prosecuting him, and a month later, in November 1991,
having him and a fellow organizer removed by a security
guard, Respondent interfered with that right of access to the
Union at Automatic Switch in violation of Section 8(a)(1)
and (5) of the Act.
Aside from all other issues, Respondent moves to dismiss
an unsigned charge in Case 22–CA–18138, alleging Juan
Perez’ unlawful discharge, which formed the basis for the al-
legation in paragraph 13 of the second amended consolidated
complaint.
The provision of the National Labor Relations Act that
governs this issue is Section 10(b). This section requires only
that timely ‘‘service of a copy thereof [be made] upon the
person against whom such charge is made.’’ There is no re-
quirement in the Act that a party must sign the unfair labor
practice charge. This requirement is found solely in Section
102.11 of the Board’s Rules and Regulations. Section 102.11
states that:
Such charges shall be in writing and signed, and either
shall be sworn to before a notary public, Board Agent,
or other person duly authorized by law to administer
oaths and take acknowledgments or shall contain a dec-
laration by the person signing it, under the penalties of
the Criminal Code, that its contents are true and correct
to the best of his knowledge and belief.
The Board, in Ladies Garment Workers (Saturn & Sedan),
136 NLRB 524 (1962), determined that the purpose of Sec-
tion 102.11 was:
that of safeguarding the Board’s processes against the
abuse which would inhere in an irresponsible exercise
by members of the public of the charging power: to in-
sure that that power be soberly exercised, a person fil-
ing a charge, is required to declare, under the sanctions
of the Criminal Code for willfully false statements, that
he has read the declaration and its contents are true.
Clearly, the Board has interpreted Section 102.11 as a mech-
anism to safeguard against the abuse of process. In its brief,
the Respondent has failed to show that the Charging Party
Union substantially abused the Board’s process. The facts in-
dicate merely an oversight on the Union’s part, in failing to
sign one of a series of charges. The minimal defect does not
constitute an abuse of the Board’s process.
Further support for my conclusion is found in Freightway
Corp., 299 NLRB 531 (1990). Although the facts of this case
differ, in that the original charge in this case was signed but
the copy of the charge delivered to the respondent was un-
signed, the holding is equally applicable. As the Board noted,
the judge in this case found that ‘‘the service of an unsigned
copy of the charge was sufficient because Section 10(b) does
not require either that the original signed charge or a signed
copy be served on the party charged.’’ Freightway at 531.
(Emphasis added.) Applying this analysis to the facts of the
present case, there was no violation of Section 10(b) by the
service of an unsigned unfair labor practice charge.
Apart from the foregoing, and assuming, arguendo, that
the charge is defective, there is ample authority for holding
on the facts of this case, that Juan Perez’ discharge may still
be litigated here and an unfair labor practice found.
The Board has traditionally held that a late charge may be
timely filed if it is ‘‘closely related’’ to a timely filed charge.
See Redd-I, Inc., 290 NLRB 111, 118 (1988). So long as the
alleglations in the late-filed charge are of the same class as
the violations alleged in the pending timely charge the Board
will permit their litigation and may make findings, conclu-
sions, and issue an order based thereon. This principal should
apply with equal force where the charge is defective for rea-
sons other than being time-barred, such as the failure to sign
the original charge.
Here, the allegations relating to the threats to Juan Perez,
the discharges of his fellow employees, the threats made to
Union Organizer Grodowsky in his presence, among others,
all grow out of similar Respondent conduct, are based on the
same legal theory of reprisals against union activity, occurred
in the same time period and with a similar unlawful object
and thus fall within the ambit of the Board’s ‘‘closely relat-
ed’’ legal principal. There is also no basis for concluding
that Respondent has been prejudiced in any way in litigating
this allegation. Id., at 118.
Accordingly, I deny Respondent’s motion to dismiss the
Juan Perez discharge allegation.
CONCLUSIONS OF LAW
1. Respondent, Control Services, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local 32B-32J, Service International Union, AFL–CIO
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening its employees with discharge because
they engaged in activity in support of the Union, by threaten-
ing a union organizer in the presence of employees with
physical assault if the organizer did not leave the Respond-
ent’s premises, and by filing a criminal complaint against a
union organizer because the organizer spoke to Respondent’s
employees on its premises, Respondent has interfered with,
restrained, and coerced its employees in the exercise of their
Section 7 rights in violation of Section 8(a)(1) of the Act.
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4. By discharging employees Leandra Perez and Juan
Perez because of their membership in or activities on behalf
of the Union, the Respondent has been discriminating in re-
gard to the hire or tenure or terms or conditions of employ-
ment of its employees, thereby discouraging membership in
a labor organization in violation of Section 8(a(1) and (3) of
the Act.
5. At all times material, the Union has been the exclusive
representative of certain employees of the Respondent em-
ployed in units appropriate for the purposes of collective bar-
gaining (as described above), within the meaning of Section
9(a) of the Act.
6. By failing and refusing to meet and to bargain collec-
tively regarding successor collelctive-bargaining agreements
covering the units described from on or about late November
1991, until bargaining resumed again in February 1992, by
failing and refusing to furnish the Union with requested in-
formation relevant and necessary to its duties as bargaining
representative, and by denying the Union access to its em-
ployees, where such a denial of access would constitute a
unilateral change in terms and conditions of employment of
employees represented by the Union, the Respondent has
been failing and refusing to bargain collectively with the ex-
clusive collective-bargaining representative of its employees
in violation of Section 8(a)(1) and (5) of the Act.
7. The Respondent has not violated the Act in any other
manner encompassed by the second amended consolidated
complaint.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, in violation of Section 8(a)(1), (3), and
(5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative actions which are nec-
essary to effectuate the policies of the Act.
I shall recommend that Respondent, on request, bargain in
good faith with the Union as exclusive representative of em-
ployees employed in the units described, with the exception
of the Exxon-Linden, Exxon-Clinton, and Exxon-Florham
Park sites where Respondent’s service contracts were termi-
nated, and embody any understanding reached in a signed
agreement. Because of its proclivity to violate the Act as
well as the serious nature of the violations demonstrating a
continuing general disregard for the employees’ fundamental
rights, I shall also recommend the issuance of a broad order,
requiring the Respondent to cease and desist from infringing
in any manner on rights guaranteed employees by Section 7
of the Act, Circuit-Wise, Inc., 308 NLRB 1091 (1992), and
Payfair Market, 295 NLRB 905, 910 (1989), both citing and
relying on Hickmott Foods, 242 NLRB 1357 (1979).
I shall not recommend the additional special bargaining
remedies the Counsel for the General Counsel has requested,
noting that Respondent, by its new counsel, has met and bar-
gained with the Union since February 1992, and these rem-
edies are not warranted by the record. In particular, I shall
not recommend as requested by the General Counsel that Re-
spondent make whole employee negotiators for any earnings
lost while attending bargaining sessions, as the record fails
to show that employees participated in negotiations or lost
wages as a result, and Respondent’s violations have not been
shown to have been so egregious or its defenses so frivolous
as to require such a remedy. See Eastern Maine Medical
Center, 253 NLRB 224, 228, 248–249 (1980).
I shall also recommend that Respondent be ordered to pro-
vide the information requested in writing by the Union which
it has failed to provide to date, except as to three sites pre-
viously described where Respondent no longer has cleaning
contracts. With respect to its unlawful criminal prosecution
of Union Organizer Grodowsky, I shall recommend, as re-
quested by counsel for the General Counsel, and in order to
restore the status quo which existed prior to Respondent’s
unlawful action, that Respondent make whole Seth
Grodowsky and the Union for all legal fees and expenses in-
curred in defending against Respondent’s filing and the pros-
ecution of the criminal complaints, plus interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987);
Johnson & Harden Co., supra at 692–693; Oakwood Hos-
pital, 305 NLRB 680 fn. 7 (1991). I shall also recommend,
as further requested by the General Counsel, that the Re-
spondent join in a petition to the municipal court of Florham
Park, Morris County, New Jersey and the Florham Park,
New Jersey police department to expunge any record of the
conviction in municipal court and notify in writing that court
and the police department that it violated the Act by causing
Grodowsky’s conviction. See Oakwood Hospital, supra;
Johnson & Harden Co. supra; New Jersey Bell Telephone
Co., 308 NLRB 277, 281 (1992).
I shall also recommend that Respondent offer Leandra
Perez and Juan Perez reinstatement to their former positions,
or, if no longer available, to substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges, and make them whole for any loss of earnings or
other monetary losses they may have suffered as the result
of the discriminations against them, less interim earnings, if
any, with interest theron as computed in New Horizons for
the Retarded, supra.6 I shall also recommend that Respond-
ent expunge from its files any reference to their unlawful dis-
charges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Control Services, Inc., Secaucus, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge because they
engaged in activity in support of Local 32B-32J, Service Em-
ployees International Union, AFL–CIO, threatening a union
organizer in the presence of employees with physical assault
if the organizer did not leave the Respondent’s premises, and
filing a criminal complaint against a union organizer because
the organizer spoke to Respondent’s employees on its prem-
ises.
459CONTROL SERVICES
8 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.’’
(b) Discharging or otherwise discriminating against any
employees because of their membership in or activities on
behalf of the Union.
(c) Failing and refusing to meet and to bargain collectively
with the Union as the exclusive representative of its employ-
ees in the following appropriate bargaining units concerning
terms and conditions of employment, and, if understandings
are reached, embody the understandings in signed agree-
ments;
(1) All employees employed by the Respondent at
Bloomingdale’s Department Stores, Hackensack, New
Jersey.
(2) All employees employed by the Respondent at
the Automatic Switch Company premises on Hanover
Road in Florham Park, New Jersey.
(3) All cleaning employees except window cleaners
employed by the Respondent at the Continental Plaza,
in Hackensack, New Jersey.
(d) Failing and refusing to furnish the Union with re-
quested information relevant and necessary to its duties as
bargaining representative.
(e) Denying the Union access to its employees, where such
a denial of access would constitute a unilateral change in
terms and conditions of employment of employees rep-
resented by the Union.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, meet and bargain with the Union as the ex-
clusive representative of the employees in the appropriate
bargaining units described in paragraph 1(c) above, and, if
understandings are reached, embody the understandings in
signed agreements.
(b) Furnish the Union with the information requested by
the Union relevant and necessary to its duties as bargaining
representatives which it has failed to furnish, with the excep-
tion of the information which the Union requested related to
the terms and conditions of employment of employees em-
ployed at its Exxon Research and Engineering sites in Lin-
den, Clinton, and Florham Park, New Jersey, where it no
longer has contracts to provide cleaning services.
(c) Offer Leandra Perez and Juan Perez immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy section
of this decision.
(d) Remove from its files any references to the unlawful
discharges and notify Leandra Perez and Juan Perez in writ-
ing that this has been done and that the discharges will not
be used against them in any way.
(e) Reimburse Seth Grodowsky and the Union for all rea-
sonable legal fees and expenses incurred by them, including
costs of appeal, in connection with Union Organizer Seth
Grodowsky’s criminal conviction, reversed on appeal, and,
upon request by the Union, join in a petition to the municipal
court of Florham Park, Morris County, New Jersey, and the
Florham Park police department to request that the proceed-
ing involving the criminal complaints filed by Respondent’s
supervisors with its support, authorization, and assistance
against Grodowsky, including Grodowsky’s convictions, be
expunged from their records, and pay any expenses involved
in the expunction proceedings, and notify the court and po-
lice department that Respondent violated Section 8(a)(1) of
the Act by causing the conviction of Union Organizer
Grodowsky, and notify Grodowsky in writing that this has
been done.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facilities including the locations of each of
the bargaining units involved in these cases copies of the at-
tached notice marked ‘‘Appendix,’’8 except that as to the
three Exxon Research and Engineering sites in Linden, Clin-
ton, and Florham Park, New Jersey, where it no longer has
contracts to provide cleaning services, Respondent shall mail
copies of the attached notice to the employees it employed
in those units at their last known address, providing a copy
of the mailing to the Union and to the Regional Director for
Region 22. Copies of the notice, on forms provided by the
Regional Director for Region 22 after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the second amended consoli-
dated complaint is dismissed insofar as it alleges violations
of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to meet and bargain with Local 32B-
32J, Service Employees International Union, AFL–CIO at
reasonable times.
WE WILL NOT refuse to furnish relevant information re-
quested by the Union for purposes of collective bargaining.
WE WILL NOT threaten our employees with discharge be-
cause they engaged in activity in support of the Union, or
threaten a union organizer with physical assault in the pres-
ence of our employees, or file a criminal complaint against
a union organizer because he spoke to our employees on our
premises.
WE WILL NOT deny the Union access to our employees
where such a denial of access would constitute a unilateral
change in terms and conditions of employment of employees
represented by the Union.
WE WILL NOT discharge or otherwise discriminate against
any of our employees because of their membership in and/or
activities on behalf of the Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL on request, meet and bargain with the Union as
the exclusive representative of the employees in the follow-
ing appropriate bargaining units concerning terms and condi-
tions of employment and, if understandings are reached, em-
body the understandings in a signed agreements:
(1) All our employees employed at Bloomingdale’s
Department Stores, Hackensack, New Jersey.
(2) All our employees employed at the Automatic
Switch Company premises on Hanover Road in
Florham Park, New Jersey.
(3) All cleaning employees except window cleaners
employed at the Continental Plaza, in Hackensack, New
Jersey.
WE WILL offer Leandra Perez and Juan Perez immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, with interest.
WE WILL remove from our files any reference to the un-
lawful discharges and notify Leandra Perez and Juan Perez
in writing that this has been done and that the discharges will
not be used against them in any way.
WE WILL reimburse Union Organizer Seth Grodowsky and
the Union for reasonable legal fees and expenses incurred by
them, including costs of appeal in connection with
Grodowsky’s criminal conviction, reversed on appeal, and
WE WILL join in a petition to the municipal court of Florham
Park, New Jersey, and the Florham Park police department
to request that the proceeding involving the criminal com-
plaints filed by our supervisors with our authorization, assist-
ance, and support, be expunged from their records, and pay
any expenses involved in the expunction proceedings, and
WE WILL notify the court and police department that we vio-
lated Section 8(a)(1) of the Act by causing the conviction of
Union Organizer Grodowsky, and notify Grodowsky in writ-
ing that this has been done.
CONTROL SERVICES, INC.