Dauman Pallet, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1994

314 N.L.R.B. 185 (N.L.R.B. 1994)

185
314 NLRB No. 36
DAUMAN PALLET, INC.
1 On February 23, 1993, Administrative Law Judge Raymond P.
Green issued the attached decision. The Respondent and the General
Counsel filed exceptions and supporting briefs. The General Counsel
filed an answering brief. The Respondent filed a brief opposing the
General Counsel’s exceptions.
2 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.
In sec. II,P of the judge’s decision, he mistakenly stated that the
layoffs of employees Lucio Ortiz and Albino Diaz and the opening
of the unfair labor practice hearing in this case took place in 1991.
These events occurred in 1992. In sec. II,T of his decision, the judge
stated that Supervisor Robert Buglioli unlawfully interrogated em-
ployee Mario Mendoza and coowner David D’Amiano unlawfully
threatened employee Albino Diaz in November 1992. These events
occurred in 1991.
3 The General Counsel has excepted to the judge’s failure to make
findings and conclusions relating to complaint allegations that the
Respondent violated Sec. 8(a)(3) of the Act by changing pallet pro-
duction quotas, by refusing to pay employees for the repair of some
pallets, and by refusing to cash employees’ paychecks. We have re-
viewed the record and we find that, as with similar complaint allega-
tions regarding the reduction in the amount of overtime employees
were permitted to work, the General Counsel has failed to present
a prima facie case that the Respondent violated the Act as alleged.
4 Although the judge found that the Respondent violated Sec.
8(a)(3) of the Act by issuing a disciplinary warning to Marco Zarate,
he failed to include Zarate’s name in the conclusions of law. We
have included Zarate’s name in an amended conclusion of law in
this decision. 5 Unless otherwise stated, all dates are in 1991.
Dauman Pallet, Inc., Dauman Recycling, Inc., and
Dauman Industries, a Single Employer, and Jo-
seph D’Amiano and David D’Amiano, Individ-
ually and Plastic, Metal, Trucking, Warehouse
and Allied Workers Union Local 132-98-102,
International Ladies Garment Workers’ Union,
AFL–CIO. Cases 22–CA–18105, 22–CA–18199,
22–CA–18304, 22–CA–18415, and 22–RC–10545
June 30 1994
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The issues in this case include whether the adminis-
trative law judge correctly found that the Respondent
committed numerous violations of Section 8(a)(1) and
(3) of the Act, certain of which interfered with a rep-
resentation election, and that a bargaining order is ap-
propriate to remedy such unlawful conduct.1
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,2 and con-
clusions,3 as modified below,4 and to adopt the rec-
ommended Order, as modified.
1. The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by laying off em-
ployees on November 1 and 4, 1991.5 In so finding,
the judge relied on three factors: (1) all of the laid-off
employees had signed union authorization cards; (2)
the layoff occurred just 1 week after the Union filed
its petition for an election; and (3) the business reasons
proffered by the Respondent for the layoff were
pretextual. We agree with the judge that the foregoing
evidentiary factors establish the Respondent’s unlawful
motivation for the layoffs. In addition, we find that
other evidence, discussed below, further supports the
finding of unlawful motivation and further refutes the
Respondent’s claim that it had no knowledge of the
identities of union supporters at the time of the layoffs.
Employee Domitilo Sanchez testified about a con-
versation with the Respondent’s coowner, David
D’Amiano, late in the evening of October 31. Accord-
ing to Sanchez, D’Amiano telephoned and asked to
meet him in front of Sanchez’ apartment building.
D’Amiano arrived in a car with employee Peter
DeMarco. D’Amiano told Sanchez that he knew em-
ployees were holding union meetings in the building.
He asked Sanchez what he knew about them. Sanchez
denied having any knowledge of the Union.
Sanchez further testified about a conversation at
work the next day with Supervisor Thomas Kenney.
Kenny said that ‘‘something bad’’ was going to hap-
pen—that ‘‘the rest of the employees were going to be
thrown out’’ and Sanchez was going to be the only
one to remain. The Respondent implemented the un-
lawful layoffs that day.
The complaint alleged, inter alia, that David
D’Amiano unlawfully interrogated Sanchez on October
31 and that Kenney unlawfully conveyed to Sanchez
on November 1 an implied threat of layoff due to em-
ployees’ union activity. The judge did not pass on
these allegations of the complaint, citing a need to ex-
pedite his disposition of the case. We deem it appro-
priate to pass on these matters, and we find the viola-
tions. We note that the judge credited other critical as-
pects of Sanchez’ testimony and that his testimony
about the conversations with David D’Amiano and
Kenney is uncontradicted. We, therefore, find that the
Respondent’s officials violated Section 8(a)(1) by in-
terrogating and making an implied threat to Sanchez.
We further find that this unlawful conduct indicates the
Respondent’s specific knowledge of the identity of
union card signers and its intent to retaliate against
them on the day of the layoffs.
Employees Mario Mendoza and Nehemias Alvarado
testified about a conversation with employee Peter
DeMarco on November 1, 1991. According to them,
Peter DeMarco said that, during the previous evening,
employee Joseph Trujillo told DeMarco and David
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The employees’ testimony is uncontroverted. Although the judge
did not specifically credit it, he generally credited other aspects of
Mendoza’s testimony and he credited Alvarado’s testimony wher-
ever, as here, it was corroborated by another witness.
7 The judge credited Mendoza’s testimony and relied on it as evi-
dence supporting the complaint’s allegation that the Respondent un-
lawfully discharged Mendoza. He made no finding regarding the
complaint’s allegation that D’Amiano’s statements violated Sec.
8(a)(1). In accord with the General Counsel’s exceptions, we ex-
pressly find that these statements were unlawful. Except concerning
the additional 8(a)(1) findings previously made in this decision, we
find no need to pass on other 8(a)(1) complaint allegations which
the judge chose not to resolve. Any additional findings would merely
be cumulative and would not affect the remedy for the Respondent’s
unfair labor practices.
8 The judge incorrectly stated in sec. II,S of his decision that Men-
doza repaired pallets at Carteret after he returned to work on No-
vember 20.
D’Amiano the names of all the card signers. They fur-
ther testified that DeMarco told them that D’Amiano
was going to fire all the people who signed cards. The
judge found that DeMarco did not speak as the Re-
spondent’s agent. Consequently, the employees’ testi-
mony about DeMarco’s statements to them was hear-
say.6
We agree with the judge that DeMarco did not
speak as the Respondent’s agent. We nevertheless find
that the hearsay testimony about DeMarco’s statements
to Mendoza and Alvarado was admissible and entitled
to some weight in evaluating the Respondent’s con-
duct. The Board has long held that it will admit hear-
say evidence ‘‘if rationally probative in force and if
corroborated by something more than the slightest
amount of other evidence.’’ RJR Communications, 248
NLRB 920, 921 (1980); Livermore Joe’s Inc., 285
NLRB 169 fn. 3 (1987).
The hearsay statements in this case are certainly pro-
bative on the issues of the Respondent’s knowledge of
union activity and motivation for the layoffs. Further-
more, the credible, nonhearsay testimony of Sanchez,
discussed above, proves that DeMarco was in the com-
pany of David D’Amiano on the evening of October
31, that David D’Amiano was aware of and looking
for details about employees’ union activity, and that,
on the very next day, the Respondent took action
against those whom it believed supported the union by
laying them off. Sanchez’ testimony and the non-
hearsay evidence reviewed in the judge’s decision pro-
vide far more than the ‘‘slightest amount’’ of corrobo-
ration required for the admission and consideration of
the hearsay testimony about what DeMarco said to
Mendoza and Alvarado. Accordingly, we find that this
uncontroverted testimony provides further proof that
the Respondent knew the identities of union card sign-
ers and intended to retaliate against them.
2. The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Mario Mendoza on April 28, 1992. The Respondent
contends in exceptions that officials of Pathmark, an
independent company for which the Respondent’s em-
ployees repaired pallets, were solely responsible for the
decision to terminate his job there. Even assuming the
truth of this contention, we find that the Respondent
was ultimately responsible for Mendoza’s unlawful
discharge.
Prior to the election, Mendoza had worked at the
Respondent’s Carteret yard as an hourly paid laborer.
The Respondent did not lay him off on November 1.
On November 6, however, he joined other employees
in an unfair labor practice strike to protest the layoff.
Mendoza testified that when he went to pick up his
paycheck on November 8, David D’Amiano said that
Mendoza had ‘‘betrayed’’ him and ‘‘stabbed him in
the back’’ by going out on strike.7 Mendoza was re-
called to work at Carteret in late November. On De-
cember 13, he acted as the Union’s election observer.
On December 14, the Respondent transferred Mendoza
to Pathmark to repair pallets.8 Mendoza had no experi-
ence performing this type of work.
On April 18, 1992, a Pathmark official informed
Mendoza that he could no longer work there. Later
that day, Mendoza went to speak with David
D’Amiano at the Respondent’s Carteret facility. As he
entered D’Amiano’s office, dispatcher Anthony
Fabrizio advised him, ‘‘I’m sorry, there is nothing we
can do for you.’’ Mendoza then asked D’Amiano why
he had been fired. D’Amiano replied that it was be-
cause he was not repairing the pallets correctly.
Joseph D’Amiano, David’s father and the Respond-
ent’s coowner, testified that if Pathmark officials tell
him that they do not want an employee working there,
‘‘[W]e take him out of Pathmark . . . and we take him
back. If we have work available, and I’ve done this
over and over before.’’ Even assuming then that the
Respondent had no involvement in the decision ousting
Mendoza from pallet repair work at Pathmark, his em-
ployment with the Respondent would not have auto-
matically ended had the Respondent been applying its
policies without discrimination.
D’Amiano further testified that he would have put
Mendoza back to work if there had been any positions
available, but that none was open. The Respondent’s
payroll records reveal, however, that between April 1
and June 15, 1992, the Respondent hired at least 18
new employees. Accordingly, in light of the General
Counsel’s prima facie case of unlawful motivation for
Mendoza’s discharge, we find that the Respondent has
failed to prove that it would not have retained Men-
doza after his return from Pathmark, in the absence of
his union activities.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclu-
sion of Law 10.
187DAUMAN PALLET, INC.
9 At one point in sec. II,I of the judge’s decision, he mistakenly
refers to a December 10 election date. As correctly stated elsewhere
in the decision, the election took place on December 13.
10 We note that the United States District Court for the District of
New Jersey, in an injunction affirmed by the United States Court of
Appeals for the Third Circuit, has found the issuance of an interim
bargaining order under Sec. 10(j) to be just and proper relief under
the circumstances of this case.
11 There are no exceptions to the judge’s recommended disposition
of challenged ballots, including the overruling of challenges to six
ballots.
‘‘10. The Respondent violated Section 8(a)(3) and
(1) of the Act by issuing disciplinary warnings to em-
ployees Cuenca, Vasquez, Ramblas, and Zarate.’’
2. Insert the following as Conclusions of Law 16,
17, and 18, and renumber subsequent conclusions ac-
cordingly.
‘‘16. The Respondent violated Section 8(a)(1) of the
Act by interrogating Domitilo Sanchez about union ac-
tivities on October 31.
‘‘17. The Respondent violated Section 8(a)(1) of the
Act by impliedly threatening Domitilo Sanchez on No-
vember 1 that employees would be laid off or dis-
charged because of their union activities.
‘‘18. The Respondent violated Section 8(a)(1) of the
Act by telling employee Mario Mendoza on November
8 that he had stabbed the Respondent’s coowner in the
back by participating in an unfair labor practice
strike.’’
AMENDED REMEDY
1. On July 7, 1992, Nehemias Alvarado resigned
from his position at Pathmark where he had repaired
pallets for the Respondent on a piece-rate basis. There
are no exceptions to the judge’s recommended dis-
missal of the complaint allegation that the Respondent
constructively discharged Alvarado, in violation of
Section 8(a)(3) and (1) of the Act, i.e., that discrimina-
tory onerous working conditions at Pathmark caused
his resignation. The General Counsel does except,
however, to the judge’s failure to find that Alvarado
is still entitled to remedial reinstatement and backpay
because he was one of a group of employees whom
the Respondent unlawfully transferred from Carteret to
Pathmark prior to the Board election on December 13,
1991.9 We find merit in this exception.
Until December 1991, Nehemias Alvarado was an
hourly paid laborer on the day shift at Carteret. The
judge stated in section II,R of his decision that the Re-
spondent laid off Alvarado on December 10, then re-
called him to the Pathmark job. Consequently, the
judge found that Alvarado’s ‘‘reassignment was some-
what different from the other people who were [unlaw-
fully] transferred to Pathmark before the election.’’
The judge recommended that the Respondent remedy
the unlawful preelection transfers by offering to rein-
state affected employees to their old jobs and by mak-
ing them whole for any difference between earnings
received in their old jobs and earnings received in the
jobs to which they were unlawfully transferred.
Contrary to the judge, Alvarado’s testimony and
company payroll records conclusively establish that the
Respondent transferred him directly from his Carteret
job to the Pathmark job on December 12, 1 day before
the Board election. He therefore belongs in the group
of unlawfully transferred union supporters entitled to
the make-whole relief recommended by the judge. The
finding that Alvarado subsequently resigned voluntarily
from the Pathmark job does not alter his entitlement to
relief from his unlawful transfer to that job. But for the
unlawful transfer to Pathmark, Alvarado would have
continued to work at Carteret from and after December
12. There is no showing that he would have resigned
if he had remained at Carteret. The work at Pathmark
involved different hours, a different method of pay,
and greater physical effort than in his prior job at
Carteret. Under these circumstances, there is no basis
for concluding that Alvarado would not have continued
working for the Respondent if the Respondent had not
unlawfully transferred him from his job at Carteret.
See Goodman Investment Co. 292 NLRB 340 (1989).
2. The General Counsel also excepts to the judge’s
failure to order that the provisions of the remedial no-
tice to employees, which the Respondent must post, be
set forth in both English and Spanish. In light of evi-
dence that many of the Respondent’s employees are
primarily or exclusively Spanish-speaking, we find
merit in the exception and shall order that the notice
be printed in Spanish and English.
3. We agree with the judge that the unfair labor
practices alleged as objectionable conduct warranted
setting aside the election held on December 13. We
further agree, for the reasons fully set forth in the
judge’s decision, that a bargaining order is appropriate
to remedy the Respondent’s unlawful conduct.10 How-
ever, we disagree sua sponte with the judge that it is
therefore unnecessary to open and count determinative
challenged ballots and to issue a revised tally of ballots
in the December 13 election.11 In accord with well-es-
tablished Board precedent, we find that these ballots
should be opened and counted. If, on the basis of these
ballots, a majority of employees have voted for the Pe-
titioner, it is entitled to a certification of representative.
This certification of representative shall be in addition
to our bargaining order. See A.P.R.A. Fuel Oil, 309
NLRB 480, 481–482 (1992), enfd. by unpublished
order, No. 93-4263 (2d Cir. 1994). Accordingly, we
shall sever and remand Case 22–RC–10545 to the Re-
gional Director for further proceedings.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
modified below and orders that the Respondent,
Dauman Pallet, Inc., Dauman Recycling, Inc., and
Dauman Industries, a Single Employer, and Joseph
D’Amiano and David D’Amiano, individually,
Carteret, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
Substitute the following for paragraph 2(e).
‘‘(e) Post at its facilities in New Jersey copies of the
attached notice marked ‘‘Appendix C.’’32 Copies of
the notice, in both Spanish and English, on forms pro-
vided by the Regional Director 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 con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.’’
IT IS FURTHER ORDERED that Case 22–RC–10545 is
severed from Cases 22–CA–18105, 22–CA–18199, 22–
CA–18304, and 22–CA–18415, and that it is remanded
to the Regional Director for Region 22 for action con-
sistent with the following direction.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 22 shall, within 14 days from the date of this de-
cision, open and count the ballots of Michael
Cimilluca, Lee Roy Holmes, Daniel Smith, Anthony
Salerno, Michael Becker, and Sacramento Rojas and
that he prepare and serve on the parties a revised tally.
If the final revised tally in this proceeding reveals
that the Petitioner has received a majority of the valid
ballots cast, the Regional Director shall issue a certifi-
cation of representative. If, however, the revised tally
shows that the Petitioner has not received a majority
of the valid ballots cast, the Regional Director shall set
aside the election, dismiss the petition, and vacate the
proceedings in Case 22–RC–10545.
Marguerite R. Greenfield Esq., Bert Dice Goldberg Esq., and
Greg Alvarez Esq., for the General Counsel.
John Craner Esq. (Craner, Nelson, Satkin & Scheer), for the
Respondent.
Lester Kushner Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark, New Jersey, on various dates from June
1 to October 2, 1992.
The petition for an election was filed in Case 22–RC–
10545 on October 21, 1991, which is the same date that the
Union made a demand for recognition on the Employer. On
November 20, 1991, the parties entered into a Stipulated
Election Agreement, agreeing to an election to be held on
December 13, 1991. It was agreed that November 17, 1991,
was the payroll eligibility date, meaning that no employee
hired after that date would be eligible to vote.
The parties agree that the appropriate unit consists of:
All production and maintenance employees, including
employees employed by the company at Pathmark
(Woodbridge, New Jersey) and Rickel’s (South Plain-
field, New Jersey) but excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
The election was held on December 13, 1991, and the out-
come was as follows:
Approximate number
of eligible voters 95
Void ballots 0
Votes cast for
Petitioner 35
Votes cast against
Petitioner 31
Challenged Ballots 21
On December 15, 1991, the Union filed objections to the
election alleging much of the same conduct as it alleged as
constituting unfair labor practices as set forth below. The
Union withdrew its Objection 15.
As noted above, the challenged ballots were determinative.
The Union challenged the votes of the following people,
alleging that they were supervisors:
Robert Buglioli George Salerno
Sacramento Rojas Anthony Salerno
Thomas Kenny Michael Becker
The Union challenged votes of the following people alleg-
ing that they were irregular part time workers.
Anthony Salerno Vincent Gatto
Lee Roy Holmes Jack Lambly (The company
conceded that he was not
eligible.)
The Union challenged the votes of the following people al-
leging that they were not employed on the eligibility date
(Nov. 17, 1991) or the date of election:
Richard Menkin The company conceded that
he was not eligible.
Michael Cimilluca Maurice Murchison
William Curry George Salerno
The Union challenged the votes of the following people,
contending that they were longer employed at the time of the
election:
Martin Duffy James Gatto
Daniel Zrodsky The company conceded that
he was not eligible.
The Union challenged the votes of Alex Barowski con-
tending he was a part time employee, Owen Sharkey con-
tending that he was a temporary employee, and Kenneth
Gilliam, contending that he was not employed as of the eligi-
bility date.
189DAUMAN PALLET, INC.
1 After the close of the hearing the General Counsel moved to
withdraw two allegations which were that Policarpio Mendoza was
discriminatorily laid off at the end of December 1991 and that upon
his recall in March 1992 he was given a more onerous job and that
his benefits were changed. The motion is granted.
2 It is noted that on November 10 or 11, 1991, the Company sent
telegrams to the laid-off employees offering them reinstatement.
3 The Company did off offer reinstatement to all of the strikers
named in par. 17 except for Avelardo Murillo and Efrain Camacena.
4 The Company contends that both of these individuals were dis-
charged for cause and not for discriminatory reasons.
Finally, the Union challenged the vote of Daniel Smith
contending he was a guard.
In addition, the Board agent running the election, chal-
lenged the vote of Michael Murray as his name was not on
the voter eligibility list. (This is a list prepared by the em-
ployer prior to the election and does not purport to be an
agreement by either party that the persons whose names are
on the list are the only eligible voters or are themselves eligi-
ble to vote.)
During the hearing, the employer conceded that Jack
Lambly Daniel Zrodsky and Richard Menkin were not eligi-
ble voters. Therefore, the challenges to their ballots should
be sustained.
The charge and amended charges in Case 22–CA–18105
were filed on November 12, 19, and December 18, 1991.
The charge in Case 22–CA–18199 was filed on January 3,
1992. The charge in Case 22–CA–18304 was filed on Feb-
ruary 27, 1992, and the charge in Case 22–CA–18415 was
filed on April 14, 1992. The original complaint was issued
on April 28, 1992, and the consolidated amended complaint
was issued on May 15, 1992.
As amended, the complaint alleges in substance:1
1. That from October 1 to November 2, 1991, a majority
of the employees in the unit selected the Union as their bar-
gaining agent.
2. That the Union’s request to bargain, made on October
21, 1991, was denied.
3. That on October 31, 1991, David D’Amiano at
Woodbridge created the impression of surveillance.
4. That on October 31, 1991, David D’Amiano at
Woodbridge interrogated employees about their union activi-
ties.
5. That on November 1 and 4, 1991, Peter DeMarco (a)
threatened employees with layoff, (b) created the impression
of surveillance, and (c) interrogated employees about the
Union. (DeMarco is not a supervisor but the General Counsel
contends that he was an agent of the Respondent by virtue
of his participation in certain antiunion actions during late
October and/or early Nov. 1991.)
6. That on November 1, 1991, the Respondent laid off the
24 employees named below because of their union activities
or sympathies.
Nehemias Alvarado Ignacio Landaverde
Rodrigo Amerngolt Etelberto Mendoza
Juan Cantu Adriancito Contreras
Cuhuatemoc Cuenca Jose Luis Paz
Albino Diaz Roberto Pena
Hector Galves Jose Ponce
Leovigildo Gomez Isidro Ramblas
Antonio Gonzalez Francisco Reyes
Adelfo Guzman Mario Vasquez
Alejandrino Guzman Pedro Ventura
Serbando Herrera Marco Zarate
Augustin Jerez Florencio Moctezuma
7. That on November 1, 1991, the Respondent eliminated
the overtime hours of the employees named above.
8. That on November 4, 1991, the Respondent for dis-
criminatory reasons laid off Manuel Garcia.
9. That on November 5, 1991, Robert Buglioli Jr, at either
Carteret or Woodbridge (a) interrogated employees and (b)
threatened employees with layoff.
10. That on November 5, 1991, certain employees com-
menced an unfair labor practice strike.
11. That on November 6, 1991, David D’Amiano prom-
ised benefits, told employees that it would be futile to select
a union and interrogated employees.
12. That on November 6, 1991, Joseph D’Amiano prom-
ised increased benefits and improved conditions of employ-
ment if the employees rejected the Union.
13. That on November 7, 1991, Joseph D’Amiano prom-
ised increased benefits and improved conditions of employ-
ment if the employees rejected the Union.
14. That on November 8, 1991, David D’Amiano threat-
ened not to reinstate employees because of their union activ-
ity.
15. That on November 8, 1991, David D’Amiano for dis-
criminatory reasons, raised the rent he charged to employee
Lucio Ortiz for the use of an apartment.
16. That on November 11, 1991, David D’Amiano threat-
ened plant closure.
17. That on November 12 and 13, 1991, the Union made
an unconditional offer to return to work on behalf of the
strikers:2
Efrain Camacena Tomas Cervantes
Juan Reyes Francisco Reyes
Mario Mendoza Avelardo Murillo
Policarpo Mendoza Lucio Ortiz
Gennaro Herrera
18. That since November 12, 1991, the Respondent has re-
fused to reinstate the employees named above to their former
jobs.3
19. That since November 12, 1991, the Respondent has re-
fused to make any offer of reinstatement to Efrain Camacena
and Avelardo Murillo.4
20. That on November 14, 1991, Joseph D’Amiano (a)
threatened to reassign employees to more onerous job duties,
(b) threatened plant closure, (c) told employees that it would
be futile for them to select the Union, (d) threatened not to
recall strikers, and (e) threatened to reduce the hours of its
employees.
21. That on November 14, 18, and 22, 1991, the Respond-
ent transferred Cuhuatemoc Cuenca, Leovigildo Gomez, Ro-
berto Pena, Albino Diaz, and Agustin Jerez to more onerous
jobs and reduced their hours of work.
22. That on November 18, 1991, the Respondent, for dis-
criminatory reasons, disciplined Cuhuatemoc Cuenca, Isidro
Ramblas, and Mario Vasquez.
23. That on November 21, 1991, Nicholas Macrina threat-
ened employees with reduced wages.
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24. That at the end of November 1991, the Respondent re-
duced the wage rate of Rodrigo Armengolt.
25. That at the end of November 1991, David D’Amiano
threatened not to reinstate employees.
26. That at the beginning of December 1991, Joseph
D’Amiano told employees that it would be futile to select the
Union.
27. That on December 5, 1991, the Respondent, for dis-
criminatory reasons disciplined Marco Zarate.
28. That on or about December 9, 1991, the Respondent
by Joseph D’Amiano orally announced a rule that:
Discussion between employees concerning the Union
on company premises are prohibited.
29. That On or about December 9, 1991, the Respondent,
by David D’Amiano implied to employees that it was the
Union that was causing their transfer to more onerous jobs.
30. That on or about December 9, 1991, the Respondent,
by Joseph D’Amiano threatened continuing reduction in
hours and told employees that it would be futile to select the
Union.
31. That on or about December 10, 1991, the Respondent
by Joseph D’Amiano, (a) created the impression of surveil-
lance, (b) made an implied threat of discharge to an em-
ployee, and (c) told employees that it would be futile to se-
lect the Union.
32. That on or about December 10, 1991, the Respondent,
for discriminatory reasons, transferred Nehemias Alverado to
Pathmark and imposed more onerous working conditions on
him.
33. That on December 10, 1991 (3 days before the elec-
tion), the Respondent, for discriminatory reasons, laid off:
Cuhuatemoc Cuenca Ignacio Landaverde
Leovigildo Gomez Etelberto Mendoza
Antonio Gonzalez Mario Mendoza
Alejandrino Guzman Florencio Moctezuma
Isidro Ramblas Roberto Pena
Francisco Reyes Juan Reyes
Mario Vasquez Pedro Ventura
Marco Zarate
34. That on December 10, 14, and 16 and an unknown
date in December 1991, the Respondent respectively trans-
ferred Nehemias Alvarado, Mario Mendoza, and Juan Cantu
to more onerous jobs with reduced hours of work.
35. That on December 16, 1991, Joseph D’Amiano threat-
ened employees with continued wage reductions.
36. That on December 21, 1991, the Respondent imposed
production quotas on its employes.
37. That on December 21, 1991, David D’Amiano threat-
ened employees with discharge.
38. That at the end of December 1991, the Respondent, for
discriminatory reasons laid off Policarpo Mendoza, recalled
him on March 2, but transferred him to a more onerous job
with different benefits.
39. That on or about February 10, 1992, the Respondent
for discriminatory reasons, reduced the piece rate paid for
pallet repair work.
40. That in mid-March 1992, the Respondent transferred
Leovigildo Gomez to a more burdensome shift and reduced
his hours of work.
41. That on March 28, 1992, the Respondent, for discrimi-
natory reasons, refused to cash the paycheck of Mario Men-
doza.
42. That at the end of March 1992, the Respondent, for
discriminatory reasons, refused to rehire certain of its em-
ployees who returned from visits to Mexico.
43. That on April 28, 1992, the Respondent
discriminatorily discharged Mario Mendoza.
44. That since April 1992, the Respondent, by David
D’Amiano, offered Ignacio Landaverde additional work and
promotion to supervisor in order to influence his testimony
in this case.
45. That on or about June 1, 1992, the Respondent prom-
ised to transfer Nehemias Alverado from Pathmark back to
Carteret if he didn’t testify against the Company.
46. That on June 18, 1992, the Respondent refused to re-
turn rent overpayments and a security deposit to Lucio Ortiz.
47. That on July 17, 1992, the Respondent selected Lucio
Ortiz and Albino Diaz for layoff and did so for discrimina-
tory reasons.
48. That on July 17, 1992, the Respondent constructively
discharged Nehemias Alvarado who quit because of the oner-
ous and discriminatory assignment given to him in December
1991.
49. That on August 28, 1992, the Respondent for discrimi-
natory reasons, refused to rehire Nehemias Alvarado.
50. That on September 22, 1992, the Respondent laid off
Domitilo Sanchez because he gave testimony in this case on
September 21, 1991.
As part of the remedy in this case, the General Counsel
seeks:
1. A Gissel bargaining order.
2. The reimbursement of rent paid by Lucio Ortiz in any
amount over $200 per month, since November 1, 1991, and
to reduce rent charged to him after that date to the amount
charged before that date.
3. An order requiring the Respondent to:
Notify the Regional Director for Region 22, in writing,
within 20 days from the date of the Board’s Order,
what steps have been taken to comply therewith. For
the purpose of determining or securing compliance with
this Order, the Board, or any of its duly authorized rep-
resentatives, may obtain discovery from the Respond-
ent, its officers agents, successors or assigns, or any
other person having knowledge concerning any compli-
ance matter, in the manner provided by the Federal
Rules of Civil Procedure. Such discovery shall be con-
ducted under the supervision of the United States Court
of Appeals enforcing this Order and may be had upon
any matter reasonably related to compliance with this
Order, as enforced by the Court.
4. A finding that Joseph and David D’Amiano should be
held to be personally liable for the alleged violations of the
corporations involved in the present cases. As to this conten-
tion, I notified that parties that this could more appropriately
be dealt with in any compliance stage of this proceeding, as-
suming that one was required. See the attached Appendix A
for my June 1991 Order issued in relation to certain sub-
poenas served on the Respondent.
On September 4, 1992, the Regional Office obtained in the
New Jersey Federal District Court a 10(j) injunction. As this
191DAUMAN PALLET, INC.
5 Joseph D’Amiano’s wife, Lucy, took care of the bookkeeping
and worked in the office.
temporary injunction is supposed to expire on March 4,
1993, the General Counsel requested that this case be given
expeditious treatment. I have therefore undertaken to issue
this decision with as much dispatch as within my power,
given the length of the record, the complexity of the issues
and my other work. However, in so doing I have decided to
ignore some of the 8(a)(1) allegations of the complaint to the
extent that they are marginal or relatively trivial in nature,
or are redundant so that they would add nothing to the rem-
edy in this case.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
CONCLUDED FINDINGS
I. JURISDICTION
The Respondent 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 and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Nature of the Company’s Business and its
Supervisory Structure
The Respondents are related companies with common
ownership and control. There is no dispute that Joseph
D’Amiano and his son David, are in charge of these compa-
nies and determine, among other things, their labor and per-
sonnel policies.
Historically the companies have been engaged in two
somewhat related business. One involves the repairing of
wooden pallets, mainly for supermarkets or other similar
kinds of retail establishments. In this respect, the Company,
although it does much of this work at its own facility, also
provides labor to Pathmark and Rickles at the facilities of
those companies. (The employees assigned to work at
Pathmark and Rickles are under the supervision of those
companies.) This type of work is physical in nature and in-
volves replacing broken wood on a pallet with new wood.
The new wood is attached to the old pallet with a staple gun.
Employees assigned to repair pallets are paid on a piece rate
basis, their earnings depending upon the number of pallets
repaired and not on the number of hours worked. In actual
practice, the people who have worked on repairing pallets
have generally made more money per week than the laborers
who did unskilled work work at the Respondents’ own facili-
ties.
The other business is the making of wood mulch. This in-
volves the grinding of wood into chips. Much of the wood
comes from old and unrepairable pallets. The chips are then
watered over a period of time, whereupon they lose nitrogen
(thereby making them unsuitable homes for termites), and are
sold to such customers as garden centers. In performing this
process, the Company receives wood from which garbage is
separated, and which is then put into grinders. The Company
has used two types of grinders, one type of which are large
portable grinders (tub grinders), and the other a very large
stationary grinder called the Montgomery Grinder. The
Montgomery Grinder, unlike the other grinders, utilizes a
conveyer belt, can grind up entire pallets, and using a mag-
net, can separate out the nails holding the pallets together.
Although it appears that the maintenance of the Montgomery
Grinder has been a constant hassle, it is far more efficient
than the other tub grinders when it is in operation.
For many years the Company had a facility in
Woodbridge, New Jersey, where it did both types of oper-
ations. However, the Woodbridge Fire Department, sometime
in 1988 determined that the Company’s operations con-
stituted a fire hazard and obtained from the local court, an
order requiring the Company to remove wood and pallets
from that facility. Over the next several years, the Fire De-
partment and the Company were in and out of court regard-
ing this problem while the Company sought and eventually
obtained a new location to conduct its operations in Carteret,
New Jersey. The final court order was dated November 22,
1991. That ordered the Company to remove its wood chips
by November 22, 1991, and vacate the Woodbridge facility
by December 1, 1991.
In the meantime, the Company transferred most of its em-
ployees and operations from Woodbridge to Carteret during
the summer of 1991. It transferred most of its employees to
Carteret by November 1, 1991, and completely vacated the
Woodbridge yard at some time in December 1991.
In September 1991 one of the employees ran a forklift ma-
chine into the Montgomery Grinder and caused extensive
electrical damage to it. (This employee was then discharged.)
Repairs were carried out by two separate companies. Accord-
ing to Carl Gurney, his company (Gurney Electric), was in-
volved in the repair of the Montgomery Grinder which was
completed in November 1991. He testified that until the ma-
chine was started up again for a test run in about November,
it was not in operation. He also testified that he was again
called in to disassemble the Montgomery sometime in De-
cember 1991. As will be evident later on, the timing of the
damage and repair of the Montgomery Grinder will become
important when considering the layoffs that occurred on No-
vember 1, 1991.
There was much testimony as to the supervisory structure
of the Respondents. In this regard, the General Counsel and
the Charging Party contend that the following named individ-
uals were, at various times, supervisors within the meaning
of the Act.
Nicholas Macrina George Salerno
Robert Buglioli Jr. Sacramento Rojas
Thomas Kenny Michael Becker
Anthony Fabrizzio
The Respondent, although conceding that Nicholas
Macrina was a supervisor, contends that the others were not.
It contends that the supervision of the employees at either fa-
cility was carried out solely by Joseph and David D’Amiano,
the two owners.5
It is noted that both the Woodbridge and Carteret yards are
large areas, where somewhere in the neighborhood of 70 to
90 people were employed at any given time. They were
spread out physically and did a variety of operations, albeit
many of which were unskilled and routine.
Many employee witnesses testified in rather conclusory
terms that the persons named above told them what to do,
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 One card dated November 2, 1991, has what purports to be the
signature of Valentin Rojas. Rojas testified that he was at an apart-
ment where Molina solicited a group of employees to sign cards and
that at some point he told another former employee of the Company
to sign a card. Assuming this to be so, it seems that this other person
must have assumed that Rojas was asking him to sign Rojas’ name
and did so. As it would appear that the signature on this card was
not that of Rojas and as it also appears that it was signed under the
mistaken assumption by someone else that Rojas authorized his sig-
nature, I shall not count this card toward the Union’s majority status.
I note that this was the only incident of its kind and there was no
other evidence which would tend to show any irregularities in the
manner in which the Union obtained employee signatures.
7 The cards state inter alia:
I llll, now employed by llll hereby apply for
membership in the Local 132-98-102 ILGWU and agree to be
bound by its Constitution and By Laws. I hereby designate and
authorize the Local 132-98-102, ILGWU, its affiliates and its
representatives, to act exclusively as my agent and representative
for the purpose of collective bargaining.
gave them orders and could let them leave early. By itself
this testimony was not particularly persuasive.
Joseph D’Amiano in a pretrial affidavit made the fol-
lowing statements constituting admissions pursuant to Rule
801(d)(2) of the Federal Rules of Evidence:
10. Thomas Kenny unloaded trailers in wood recy-
cling and ran machines. I would tell him if I wanted
say 2, 7 and 9 unloaded. He would either do it himself
or have others help him. I would give him the individ-
uals to help him. He would show the employees what
to do. The employees would have to listen to what he
said. A lot of guys would complain about unloading
trucks, if they did not follow Kenny’s instructions to do
so I would just move them to doing another job.
11. Kenny was on salary, he did not punch a time
clock. I have told the employees that they had to listen
to what Kenny said, because he knows what has to be
done. (I can’t give instructions to 15 guys.)
. . . .
17. Buglioli works on both the pallet and recycling
cases. In the morning I tell him what I want done and
he does it. I tell the employees which place they are to
work in. I tell Buglioli who is going to be in the
switcher, which trailer to get done first. He matches
what the employees do, and makes sure they do their
jobs. He also runs the machinery like the loaders. I
have told the employees they have to listen to what
Buglioli says.
. . . .
20. If someone is not doing a job well Buglioli can-
not send them hone early, he has to come talk to me,
and then I go and talk to the individual.
21. Sacramento Rojas drivers a forklift in both the
pallet area and in recycling. He loads and unloads
trucks.
22. Either I, Buglioli, Rojas, David, Anthony
Fabrizzio Anthony Salerno, or Macrina count the rows
in the pallet area when they are full and then at the end
of the day to see how many pallets come out. Anthony
Salerno checks the quality, as does Robert Washington,
Buglioli and Rojas. (Customer also letter from when
pallets are going badly.)
23. Any one of the above listed individuals can tell
me when the pallets are not being repaired properly. I
must put the pallet back for the person to repair again
without being paid for it.
. . . .
28. George Salerno works a forklift and runs ma-
chines. If I had special job I would tell him to take
some guys and do it. The employees know that they
have to listen to him, because I tell them right then and
there.
In view of the above and the record as a whole, I conclude
that Nicholas Macrina, Thomas Kenny, Robert Buglioli, and
George Salerno could, using independent judgement, respon-
sibly direct the work of employees, and could assign and re-
assign them to various tasks during the course of a regular
work day. Accordingly it is my opinion that they were super-
visors within the meaning of Section 2(11) of the Act.
On the other hand, the testimony of all the witnesses does
not convince me that Anthony Salerno, Sacramento Rojas, or
Michael Becker were supervisors. In the case of Rojas, the
testimony shows that his principle job was to operate a fork-
lift in the pallet repair area of the yard. Each day he used
the forklift to bring pallets in rows to the area where the pal-
let repair employees were to do their work. This I do not
consider to be equivalent to assigning work. Also, he was re-
sponsible for counting the finished pallets at the end of the
day, and checked whether the pallets were suitable for ship-
ment. Michael Becker’s main job was to operate heavy ma-
chines such as bulldozers. At most, the General Counsel’s
witnesses such as Nehemias Alvarado, testified that Becker
was a machine operator who intermittently filled in to super-
vise when the other foremen were not around. See Gordon
Mills, Inc., 145 NLRB 771, 775 (1963). Finally, Alvarado
testified that Anthony Salerno was an older worker who op-
erated a hi-lo and who worked on a part-time basis.
As to Anthony Fabrizzio, the General Counsel contends
that this person, who used to be a truckdriver, only became
a supervisor in January 1992 when he took over the position
vacated by Macrina. The testimony as to this person is sparse
and indicates that he was moved to the office where he re-
layed instructions from David D’Amiano to the Company’s
truckdrivers and other employees. The Company contends
that Fabrizzio was merely a dispatcher and in my opinion
there is insufficient evidence to show that he was a super-
visor.
B. The Union’s Majority Status
The Union by its organizer, Rhina Molina, met with em-
ployees of the Company during October and early November
1991. During that time, she obtained 41 authorization cards
from employees.6 Most, but not all of the employees who
signed union cards were Mexicans who worked at the Re-
spondent pursuant to Immigration Green Cards. The union
authorization cards were in English, not Spanish, and in
some instances the employees could not read or understand
the language on the cards.7 The testimony revealed however,
that Molina, contemporaneously with asking employees to
sign these cards, explained the benefits that the Union hoped
to be able to achieve; stated that the Union would ask the
Employer for recognition; and told employees that if recogni-
tion was denied the Union would seek to have an election
conducted by the National Labor Relations Board. Although
193DAUMAN PALLET, INC.
8 In 1991 and 1992 the Respondent kept two different payroll reg-
isters, one for Dauman Pallet and the other for Dauman Recycling
Inc. These payroll registers were prepared by an outside company,
Automatic Data Processing from information phoned in by Lucy
D’Amiano.
9 These were Michael Blancato, the controller, Ann Marie Rufolo,
Brenda Williams, and Jennifer Kopp.
10 Manual Garcia although not laid off on November 1, was laid
off on November 4, 1991.
employees were told that the cards might be used for the
purpose of obtaining an NLRB election, the evidence does
not suggest that employees were told that this was the only
purpose of the cards.
In my opinion the authorization cards signed by the em-
ployees in this case, except for the one signed by Valentin
Rojas, are valid and would support a bargaining order assum-
ing that a majority of the employees signed the cards and
that the other elements necessary for granting such an order
were present. These 40 cards on their face, do not suggest
that they are for the purpose of obtaining an NLRB election.
Although some employees could not read the cards, the cards
were translated to many of those who could not read English
and the employees were told in groups, in effect, that the
cards would be used to demand recognition or to ask for an
election if the Union’s demand for recognition was rejected
by the Employer. In this circumstances it is concluded that
the Union has established the validity of the cards. See Cum-
berland Shoe, 144 NLRB 1268 (1963). Cf. Nissan Research
& Development, 296 NLRB 598 (1989). Moreover, single
purpose cards which authorize a union to represent the card
signer are valid, notwithstanding representations that such
cards may be used for the purpose of obtaining an NLRB
election. See Levi Strauss & Co., 172 NLRB 732 (1968),
enfd. sub nom Southwest Regional Joint Board v. NLRB, 441
F.2d 1027 (D.C. Cir. 1970).
The Union made its demand for recognition on October
21, 1991, and filed the petition for an election on the same
day, when its demand was declined.
The Respondent’s payroll records8 for the pay period for
the week ending November 3, 1991, shows that exclusive of
the D’Amianos, the office and clerical workers9 and Nicholas
Macrena (conceded by the Employer to be a supervisor),
there were 73 employees who were paid for working at the
Company during that particular week. These were:
Name Job Location Signed Card November 1, 1991 Layoff
Alvarado, N. Yard driver Yard Yes Yes
Armengolt, R. Recycling Yard Yes Yes
Astudillo, Teofilo Pallets Rickles Yes No
Barrett Donald Mechanic Yard No No
Becker, Michael Eqpt operator Yard No No
Brendel David Truckdriver Yard No No
Brosky, Robert Truckdriver Yard No No
Camacena, Efrain Pallets Yard Yes No
Cantu, Juan Pallets Yard Yes Yes
Carrasco, Divino Pallets Pathmark Yes No
Cervantes, Tomas Pallets Pathmark Yes No
Chwialkowski, Jan Eqpt operator Yard No No
Cimilluca, Michael Machine oper. Yard No No
Contreras, A. Recycling Yard Yes Yes
Cuenca, C. Recycling Yard Yes Yes
Diaz, Albino Recycling Yard Yes Yes
DeMarco, Peter Truckdriver Yard No No
Di Dolci, Alan Truckdriver Yard No No
Duffy, Martin Eqpt operator Yard No No
Dutkowski, Alfred Truckdriver Yard No No
Fabrizzio, Anthony Truckdriver Yard No No
Flores, Bonificio Pallets Pathmark No No
Galves, Hector Stripper Yard Yes Yes
Garcia, Manuel Saw Yard Yes No10
Gardi, Gregory Truckdriver Yard No No
Gatto, Anthony Mechanic Yard No No
Geyer, Mark Truckdriver Yard No No
Gomez, Leovigildo Recycling Yard Yes Yes
Gonzalez, Antonio Recycling Yard Yes Yes
Govan, William Truckdriver Yard No No
Guzman, Alejandrino Recycling Yard Yes Yes
Guzman, Adelfo Pallets Pathmark Yes No
Herrera, Sarabando Recycling Yard Yes Yes
Herrera, Gennaro Pallets Pathmark Yes No
Hill, Thomas Truckdriver Yard No No
Jerez, Agustin Recycling Yard Yes Yes
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The signature on the card is that of Francisco Reyes Cortez who
is the same person as the person listed on the company payroll as
Francisco Reyes.
12 As noted above, Valentin, Rojas testified that he did not sign
a card.
13 The fact that the company puts a person’s name on what is
called an ‘‘Excelsior list’’ neither means that he is an eligible voter
or that he should be counted as part of the appropriate unit at a time
relevant for ascertaining majority status in a ‘‘Gissel’’ type of an
8(a)(5) case. Pursuant to a case called Excelsior Underwear, 156
NLRB 1236 (1966), an employer prior to a Board conducted election
is required to turn over to the Board for distribution to a union, a
list of the names and addresses of those employees who might be
eligible voters. The purpose of this rule is to allow the union to con-
tact those people for the upcoming election and the rule does not
purport to be binding on any party regarding whether any particular
person on the list (or left off the list), will ultimately be considered
an eligible voter. That is, either party may challenge the eligibility
of any person whose name has been placed by the employer on the
Excelsior list and either party may also contend that persons left off
the list should be allowed to vote. For example, the Company put
a person named Jack Lambly on the Excelsior list and asserted for
a while that he was an eligible voter. However, as the hearing pro-
gressed and as the General Counsel had access to the Company’s
books and records, the Respondent ultimately conceded that it never
employed Lambly.
Name Job Location Signed Card November 1, 1991 Layoff
Kanard, John Truckdriver Yard No No
Kiefer, Brian Laborer Yard No No
Kiefer, Walter Truckdriver Yard No No
Landaverde, Ignacio Recycling Yard Yes Yes
Layton, John Mechanic Yard No No
Mendoza, Mario Pallets Yard Yes No
Mendoza, Policarpo Recycling Yard Yes Yes
Mendoza, Etelberto Pallets Yard Yes Yes
Moctezuma, F. Pallets Yard Yes Yes
Moore, Chris Recycling Yard No No
Mullen, Lloyd Truckdriver Yard No No
Murchison, Germaine Truckdriver Yard No No
Murchison, Eugene Saw-Recyling Yard No No
Murillo, Alverado Pallets Pathmark Yes No
Ortiz, Lucio Pallets Pathmark Yes No
Paz, Jose Luis Recycling Yard Yes Yes
Pena, Roberto Recycling Yard Yes Yes
Ponce, Jose Recycling Yard Yes Yes
Porciello, V. Mechanic Yard No No
Poultney, David Pallets Yard No No
Ramblas, Isidro Pallets Yard Yes Yes
Reyes, Francisco Pallets Yard Yes11 No
Reyes, Juan Pallets Yard Yes No
Rojas, Sacramento Forklift Yard No No
Rojas, Valentin Pallets Pathmark No12 No
Rowley, Peter Mechanic Yard No No
Sanchez, Domitilo Recycling Yard Yes No
Sanchez, Pedro Recycling Yard Yes No
Sanchez, Jesus Recycling Yard No No
Sandberg, Herbert Truckdriver Yard No No
Smith, Daniel Gofer Yard No No
Thompson, Edward Truckdriver Yard No No
Trujillo, Juan Eqpt operator Yard Yes No
Vasilev, Done Truckdriver Yard No No
Vasquez, Mario Pallets Yard Yes Yes
Ventura, Pedro Recycling Yard Yes Yes
Zarate, Marco Recycling Yard Yes Yes
The General Counsel concedes in its brief that Lee Roy
Holmes should be part of the unit even though he did not
work during the payroll period ending November 3. They
concede that Holmes was a regular part-time employee at
this time. Holmes did not sign a union card.
There was a card signed by one Acasio Galindo, who al-
though not appearing on the above payroll, did appear on the
preceding payroll and had worked at the Company since Jan-
uary 1989. Galindo testified that after signing his card, he re-
ceived permission from David D’Amiano to go to Mexico
for 2 months starting in late October 1991. Galindo therefore
was not actually working at the Company when the layoffs
occurred on November 1, 1991, and he did not return from
Mexico until April 1992. Since Galindo was granted permis-
sion to leave on essentially what could be called a leave of
absence, I shall conclude that he was an employee with a
reasonable expectancy of return as of pay period ending No-
vember 3, 1991. Accordingly, I conclude that his card should
be counted toward the Union’s majority status.
There also was a card signed by Alvaro Ortiz who also
was listed on the ‘‘Excelsior’’ list as an eligible voter.13 Al-
though his name does not appear on the payroll records for
the week ending November 3, 1991, David D’Amiano testi-
195DAUMAN PALLET, INC.
fied that he was among the people employed in the recycling
area as of November 1, 1991. I therefore shall count his card
toward the Union’s majority status.
Therefore as of the week ending November 3, 1991, the
Union had obtained 40 validly signed authorization cards.
One of the people who worked during the week ending
November 3, 1991, was a person named Vasilev Done.
David D’Amiano testified that this person had his own busi-
ness and that he worked for the Respondent on an irregular
and infrequent basis as a truckdriver. It therefore is my opin-
ion that Done should not be counted in the unit. Therefore,
in the General Counsel’s view, the unit at that time consisted
of 73 employees.
The Respondent asserts in its brief that there were between
83 and 85 employees in the bargaining unit as of the week
ending November 3, 1991. He did not, however, specify the
names of all of the additional employees who should be in-
cluded. Nevertheless, based on the testimony of David
D’Amiano and the ‘‘Excelsior’’ list I would imagine that his
list would add the following individuals.
Alex Barowski. Barowski was hired during the week end-
ing July 23, 1991, and worked until some time in September
1991. He is listed on the Dauman Recycling payroll in de-
partment 200 which is the mechanic’s department. Despite
Respondent’s contention that he was temporarily laid off,
Barowski did not return until the week ending June 28, 1992,
and he worked from 4 to 9 hours per week thereafter. During
his 9-month absence, the Dauman Recycling payroll records
show a number of people hired into department 200 (such as
John Layton and Frank Kopp), thereby indicating that new
people were hired before Barowski was recalled. This is
hardly consistent with a contention that he was temporarily
laid off, and I find that he had no reasonable expectation of
recall as of the time he was laid off in September 1991.
Monroe Auto Equipment, 273 NLRB 103, 105 (1984).
Donald Barrett Jr., David D’Amiano testified that as of
November 1, 1991, there was a Donald Barrett Sr., who
worked as a truckdriver and a Donald Barrett Jr. who worked
as a mechanic. There is no dispute that Donald Barrett Sr.
was in the unit at all relevant times. However, the Autopay
Master Control for Dauman Recycling (G.C. Exh. 53) indi-
cates that Donald Barrett Jr. was hired on December 15,
1991, and the payroll records of Dauman Recycling shows
that the last time he worked was during the week ending
February 10, 1991, where he is listed in department 700. The
payroll records for Dauman Recycling for 1991 and through
August 1992 are in evidence as Respondent’s Exhibit 12 and
Barrett Jr. does not appear again. Accordingly, I conclude
that he was not in the unit at any relevant time.
Thomas Kenny. As described above I have concluded that
Kenny was a supervisor within the meaning of the Act and
therefore he was not part of the bargaining unit during any
relevant time. It is also noted that Thomas Kenny had an ac-
cident in December 1990 and was out on disability until
some time in January 1992.
Robert Buglioli. Having concluded that Robert Buglioli
was a supervisor within the meaning of the Act, he was not
part of the bargaining unit at any relevant time. Also, the
yearend Auto Pay Master Control for Dauman Pallet (G.C.
Exh. 54), indicates that he was hired, on December 2, 1991,
and therefore was not employed either at the beginning of
November 1991 or on the payroll eligibility date for the elec-
tion.
George Salerno. Having found that George Salerno was a
supervisor within the meaning of the Act, he was not part
of the bargaining unit at any relevant time.
William Buglioli. David D’Amiano testified that there was
a William Buglioli who was employed as of November 1,
1991. He could not, however, remember what kind of work
he did and the payroll records do not record that any such
an individual was ever employed during 1991 or 1992.
David Carracino. David D’Amiano testified that this per-
son, although laid off in the summer of 1991, was an em-
ployee in the recycling department as of November 1, 1991.
The yearend record for Dauman Pallet (G.C. Exh. 54) shows
that such a person was hired at $10 per hour on June 6,
1991. However, an examination of the payroll records do not
show this person as having worked at any time during 1991.
If he ever worked, he clearly was quickly released.
William Curry. Curry was a mechanic hired on December
15, 1989. His name appears on the Dauman Recycling pay-
roll which shows that he was laid off during the week ending
July 14, 1991, and that he remained off that payroll until the
week ending December 1, 1991, when he briefly returned to
work for 2 weeks at 6 hours per week. As far as the records
show, he did not return to work on a full-time basis until
January 23, 1992. There is insufficient evidence in this
record that he was temporarily laid off, that he was on a
leave of absence, that he was on a disability leave or that
he had, at the time he left in July 1991 any reasonable ex-
pectation of recall. I therefore shall not count him as part of
the unit.
Galingo. According to David D’Amiano there was an em-
ployee named Galingo, who he believes left in the summer
of 1991. This name does not appear on any payroll records
(unless he is mistaking the name for Acasio Galindo) and
whoever he is, he is not counted as part of the unit.
James Gatto. General Counsel’s Exhibit 54 (the Autopay
Master control for Dauman Pallet for the year ending 1991)
shows that a James Gatto was hired for the Dauman Pallet
payroll (in department 500) on March 27, 1991. The records
show that he stopped working during the week ending Sep-
tember 22, 1991, and has not returned. (G.C. Exg. 55 is the
Autopay Master control record for the period from Jan. 1 to
Aug. 23, 1992. It combines the payroll records for Dauman
Pallet and Dauman Recycling and indicates the names, the
addresses and the hiring dates of all persons employed at any
time during that period of time.) It does not show that James
Gatto worked at any time during 1992. Therefore although
David D’Amiano asserted that he was an employee as of No-
vember 1991, I conclude that he was not.
Vincent Gatto. The Dauman Pallet payroll records show
that Vincent Gatto was a part-time laborer (department 700)
who was hired on April 8, 1991. The records show that he
last worked during the week ending September 29, 1991.
General Counsel’s Exhibit 55 indicates that he was rehired
on July 13, 1992. As the evidence does not demonstrate that
he had any reasonable expectation of recall when he left in
September 1991, I shall not count Vincent Gatto in the unit.
Kenneth Gilliam. General Counsel’s Exhibit 55 shows that
a Gilliam was hired on August 10, 1991. The records show
that he was a truckdriver in department 500 on the Dauman
Recycling payroll; that he left during the week ending Sep-
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Subsequent to the close of the hearing, the Employer’s counsel,
on February 4, 1993, wrote me a letter indicating that his client had
advised him that the person on its payroll, Etelberto Mendoza, was
not the real Mendoza but another person using that name in order
to avoid the prohibition against the hiring of undocumented aliens.
He therefore asserts that the union authorization card signed by this
person masquerading as Etelberto Mendoza should not be counted
because he committed a fraud.
Whatever the status of Mendoza, the employer here has not dem-
onstrated that the evidence is newly discovered within the meaning
of Sec. 102.48(d)(1) of the Board’s Rules and Regulations. More-
over, he does not contest that there was a real person who using this
name was employed by the Company and who signed a union card.
tember 29, 1991, and returned to work on a full-time basis,
during the week ending December 8, 1991. If the records had
shown that Gilliam had been a long term employee, I would
have concluded that he was temporarily laid off in September
1991. However, as he had been hired in August 1991, and
there is no evidence to show that he was told in September
that his lay off was temporary, I conclude that he should not
be counted in the unit.
James Govan. General Counsel’s Exhibit 55 shows that
James Govan was hired on April 7, 1989, and worked as a
truckdriver in department 500 on the Dauman Recycling pay-
roll. He worked regularly until the week ending October 27,
1991, and returned to work during the week ending Novem-
ber 24, 1991. Notwithstanding the fact that his name did not
appear on either of the payroll’s for the week ending Novem-
ber 3, 1991, it seems to me that he was a longtime and reg-
ular employee who was temporarily absent during early No-
vember 1991. I shall therefore include him in the unit.
Richard Menkin. Although General Counsel’s Exhibit 54,
the Autopay Master Control for Dauman Pallet; year ending
1991, shows a Richard Menkin being hired on May 9, 1991,
I could not find him listed on either the Dauman Pallet or
Dauman Recycling weekly payroll records. Since this per-
son’s employment has not been sufficiently established, I
shall not count him as part of the unit. (During the hearing
the Respondent conceded that the challenge to his vote
should be sustained.)
Maurice Murchison. General Counsel’s Exhibit 54 shows
that Maurice Murchison was hired on March 12, 1991, and
worked on the Dauman Pallet payroll in department 700 as
a laborer. Prior to November 1991, he last worked during the
week ending May 2, 1991. He returned to work during the
week ending November 17, 1991, at a time that the Com-
pany was refusing to recall all the strikers, and he last
worked for 24 hours during the week ending December 15,
1992. As there is no evidence to show that at the time he
left in May 1992 that his leaving was temporary in nature,
I shall not count him as part of the unit. Indeed, it looks to
me like his rehire in November 1991 was intended by the
Company to stack the unit in its favor pending the holding
of an election. (G.C. Exh. 55 shows that he was not em-
ployed at any time during 1992.)
Manuel Rivera. General Counsel’s Exhibit 54 shows that
Manuel Rivera was hired on April 7, 1989. He appears on
the Dauman Pallet payroll in department 600 (pallet repair)
and that record shows that he last worked during the week
ending July 14, 1991. According to the 1992 Autopay Master
Control record (G.C. Exh. 55) Rivera was rehired on April
3, 1992. Since there was no evidence to show that his leav-
ing in July 1991 was considered to be temporary, I conclude
that he was not part of the unit at any relevant time.
Anthony Salerno. General Counsel’s Exhibit 53 shows that
Anthony Salerno was originally hired on April 7, 1991, and
General Counsel’s Exhibit 55 shows that he was rehired on
September 26, 1991. He appears on the Dauman Pallet pay-
roll record in department 300, which is entitled ‘‘super-
visors.’’ Although he does not appear on the payroll record
for the week ending November 3, 1991, he does appear on
payroll records immediately before and after that date. There
is no question but that he was employed as of November 3,
1991, and I have previously concluded that despite the no-
menclature in the payroll records, he did not have statutory
supervisory authority. I therefore shall count him in the unit.
Owen Sharkey. General Counsel’s Exhibits 54 and 55 indi-
cates that Owen Sharkey was hired on June 11, 1991, and
laid off during the week ending October 6, 1991. He was
listed on the Dauman Pallet payroll as a truckdriver in de-
partment 500. That payroll indicates that he returned to work
as a part-time employee during the week ending December
1, and left again during the week ending December 16, 1991.
(I.e., right after the election.) The payroll records do not
show that he ever worked for the Company again. In my
opinion, the evidence tends to show that he was laid off
without expectation of recall in early October 1991. I shall
therefore not count him as part of the unit.
Jose Vega. General Counsel’s Exhibit 53 shows a Jose
Vega hired on May 6, 1991. He appears on the Dauman Re-
cycling payroll in department 700 (laborers) and the last time
he ever worked at the Company was during the week ending
July 28, 1991. I shall therefore not count him as part of the
unit.
Daniel Zrodsky. General Counsel’s Exhibit 54 shows that
Zrodsky was hired on March 12, 1991. He appears on the
Dauman Pallet payroll in the department 700 (laborers). He
last appears as having worked during the week ending June
2, 1991, and there is no indication that he ever returned. I
shall not count his as part of the unit. (As noted above, the
Company conceded that Zrodsky was not an eligible voter.)
Michael Murray. General Counsel’s Exhibit 53 shows that
Murray was hired on June 4, 1991. He appears on the
Dauman Recycling payroll during 1991 as a truckdriver in
department 500. The records show that he left the Company
during the week ending October 20, 1991, and reappeared for
a total of 17.5 hours during the week ending December 15,
1991. He thereafter does not appear on the payroll until the
pay period ending March 1, 1992, when he appears in de-
partment 500 as a heavy machine operator. In the absence
of any meaningful testimony regarding Murray’s status, it
seems to me that he was laid off, without expectancy of re-
call during the week ending October 20, 1991, and only re-
called to full-time duty during the week ending March 1,
1992, at a new job. His brief appearance on the December
15, 1991 payroll does not alter my opinion that he had been
permanently laid off, and this aberration indicates merely an
attempt by the Respondent to claim him as an eligible voter.
Accordingly, I shall not count Murray as part of the unit as
of any relevant time.
In light of the above, it is my opinion that the bargaining
unit as of November 3, 1991, consisted of 77 employees, of
which 40 signed valid authorization cards.14
197DAUMAN PALLET, INC.
There is nothing in the Act which exempts undocumented aliens
from the definition of an employee. Sure Tan, Inc. v. NLRB, 467
U.S. 116 (1984). Therefore, even assuming that the Employer’s as-
sertion is correct, I don’t believe it has any legal consequence in
terms of whether the Union represented a majority of the workers
actually employed by the Company as of November 1, 1991.
15 According to Mendoza he went over to Trujillo’s house to so-
licit him to sign a union card.
16 I must say here that on demeanor grounds I was not favorably
impressed with the credibility of either David or Joseph D’Amiano.
Both at varying times, seemed to be evasive and belligerent.
17 Although David D’Amiano stated that the principle reason for
the November 1 layoffs was the shutdown of the Montgomery
Grinder (used in the recycling operation), Joseph D’Amiano, in a
pretrial affidavit (G.C. Exh. 28), gave a completely different expla-
nation. He stated:
In November 1991, we had a lot of pallets on hand in inventory,
and we could not afford to pay the employees to repair more
pallets. We had laid off employees in the past from the pallet
repair side when demand for pallets was reduced and inventory
was high. The individuals we laid off on November 1, 1991
were only from the pallet repair side; everyone else was reduced
in hours or alternated days: drivers, fork lift operators and the
people who worked recycling.
18 I reach this conclusion based on the evidence taken during the
course of the hearing. In this regard, I rejected the General Coun-
sels’ motion to reopen the record so as to enable them to produce
supposedly newly discovered evidence of the Company’s continued
operation of the Montgomery Grinder at Woodbridge in November
and December 1991. My order on that motion is attached hereto as
Appendix B.
C. The November 1, 1991 Layoffs
Mario Mendoza testified that on November 1, 1991, he
was told by Peter DeMarco that he and David D’Amiano
were with Jose Trujillo the night before and that Trujillo had
given them the names of the people that signed union
cards.15 According to Mendoza, DeMarco said that all those
people were going to be fired.
In much the same vein, Nehemias Alvarado testified that
on November 1, 1991, DeMarco told him that he and David
D’Amiano had learned from Trujillo, on the previous night,
that Alvarado and the other Mexican employees had signed
union cards. He testified that DeMarco said that David was
going to fire all the people who signed the cards.
The facts in this case show that Peter DeMarco was a non-
supervisory truckdriver who, on occasion, went out for din-
ner with David D’Amiano. (Sort of like Sancho Panza to
Don Quixote.) Therefore, unless the evidence shows that
DeMarco, in this particular situation, participated with David
D’Amiano in an illegal plan to discriminate against the em-
ployees, the remarks attributed to him would be heresay and
inadmissible. As the evidence on this is too ambiguous for
my taste, I shall not rely on this testimony to buttress my
conclusion that the November 1, 1991 layoffs were moti-
vated by discriminatory reasons.
As noted above, the Respondent on November 1, 1991,
laid off 24 employees, and added a 25th on November 4.
Most of these employees were of Mexican descent and all
signed union authorization cards. As this occurred about 1
week after the Union filed its petition for an election, the
timing of the layoff, by itself, strongly evidences a discrimi-
natory intent. Greco & Haines, Inc., 306 NLRB 837 (1992).
Pursuant to Wright Line, 251 NLRB 1083 (1980), approved
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), as the General Counsel has made out a prima facie
showing sufficient to support an inference that protected or
union activity was a motivating factor in the decision to dis-
charge or take other adverse action against employees, the
burden shifts to the Respondent to demonstrate that it would
have taken the same action in the absence of the protected
activity.
The Respondent by David and Joseph D’Amiano have set
forth at various times alternative and sometimes contradic-
tory reasons for their reasons for November 1 layoffs.16
At one point in the trial, David D’Amiano testified that the
reasons for the November 1 layoffs were because (1) the
Montgomery Grinder was turned off which meant that all of
people who worked in association with that machine were no
longer needed; and (2) business was slow. He testified that
the main reason was that the grinder was turned off because
a court, at the request of the local fire department, had or-
dered the Company to move out of Woodbridge. Neverthe-
less, at another point in his testimony, David D’Amiano tes-
tified that the Montgomery Grinder had been turned off for
repairs back in September 1991 which in fact was the case
as confirmed by the testimony of Carl Gurney. Indeed, the
testimony of Gurney, of Joseph D’Amiano and of some of
the employees who, like Domitilo Sanchez, worked at
Woodbridge on November 4, or other employees who pick-
eted outside the Woodbridge yard in early November 1991,
convinces me that the Montgomery Grinder had been re-
paired shortly before November 1, 1991, and that it was op-
erated after that date and until sometime in December when
it was disassembled preparatory to moving it to Carteret. (In
fact, Joseph D’Amiano conceded that the Montgomery
Grinder may have been used after Nov. 1, 1991.)17
Therefore, it seems clear to me that the turning off of the
Montgomery Grinder, which actually occurred in September
1991, could not have been the reason for the November 1
layoffs, particularly as the evidence shows that it was turned
back on after that date and that the Company used a con-
tractor, Robert Chrisman, to furnish workers to do work that
had been done by the Respondent’s employees who worked
at the Woodbridge yard in conjunction with the Montgomery
Grinder.18 Also there was credible testimony by employee
Mario Mendoza that during the time that from November 4,
to the recall of the laid-off employees, he observed, while
working at the Carteret yard five new employees working at
that location. One of these was Maurice Murchison who had
previously been discharged in the spring of 1991 and the oth-
ers, according to Mario Mendoza were completely new to
him.
Based on the above, I conclude that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by layoff of the 25
employees on November 1, 1991.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Herrera testified that he did not join the strike until about a
week after it began.
20 Lucio Ortiz testified that he joined the strike on November 11,
1991.
21 Mario Mendoza testified that he joined the strike on November
6, 1991.
D. The Strike
Between November 5 and 11, 1991, some of the other em-
ployees who were not laid off, went out on strike. They
were:
Name Job & Location
Avelardo Murillo Pallets/Pathmark
Efrain Camacena Pallets/Carteret
Francisco Reyes Pallets/Carteret
Gennaro Herrera19 Pallets/Pathmark
Juan Reyes Recycling/Carteret
Lucio Ortiz20 Pallets/Pathmark
Mario Mendoza21 Pallets/Carteret
Policarpo Mendoza Recycling/Carteret
Tomas Cervantes Pallets/Pathmark
As this strike was caused, at least in part by the November
1 layoffs, which I have concluded to have been illegally mo-
tivated, I find that the strike was an unfair labor practice
strike. Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956);
Drivers Local 662 v. NLRB, 302 F.2d 908 (D.C. Cir. 1962);
Northern Wire Corp., 291 NLRB 727 (1988); Workroom for
Designers, 274 NLRB 840, 856 (1985).
E. The Meeting at the Diner
Nehemias Alvarado and Ignacio Landaverde testified that
on or about November 7, 1991, they were called by David
D’Amiano and asked to attend a meeting with him at a diner.
They testified that when they arrived at the diner, David
D’Amiano was accompanied by Peter DeMarco. According
to Alvarado and Landaverde, David D’Amiano said that they
should not get involved with the Union and offered a wage
increase to $10 per hour plus holiday and vacation benefits.
They state that David D’Amiano, at one point during the
meeting, called his father on a cellular phone and repeated
the offer he had made to the two employees. At this point,
according to the employees, Alvarado got on the phone and
spoke to Joseph D’Amiano. While Alvarado testified that Jo-
seph D’Amiano said that he should leave the Union and ac-
cept his son’s offer, Landaverde testified that when Alvarado
got off the phone, he said that Joseph D’Amiano had told
him that he could not offer anything, whereupon David said
that his father called the shots. According to Landaverde, he
received the next day, a phone call from David D’Amiano
who said that his father had agreed to the $10 per hour but
not to any other benefits. He states that they he, Alvarado,
David, and Joseph D’Amiano conducted a conference call
confirming that offer.
David D’Amiano testified that he met with Alvarado and
Landaverde (both of whom he described as very good work-
ers) at the diner and that he expressed shock that there was
a strike (which Alvarado and Landaverde had joined). David
D’Amiano states however, that it was Alvarado who de-
manded a raise to $10 per hour, plus holiday, vacation, and
medical benefits. He states that they said that if these de-
mands were met they would cross the picket line inasmuch
as they did not care about the Mexicans. According to David
D’Amiano, he put Alvarado on the phone with his father
who said that if they wanted to return to work they could,
but that he would not offer them anything. According to
David D’Amiano, he may have called them back a day or
two later, but he cannot recall if he did.
Based on the record as a whole and on demeanor grounds,
it is my opinion that David D’Amiano, on or about Novem-
ber 7, 1991, offered increased wages and benefits to Alva-
rado and Landaverde in an attempt to get these two highly
regarded workers to abandon the strike and return to work.
I also conclude that this offer was immediately vacated by
Joseph D’Amiano during his phone conversation with Alva-
rado, but that the wage increase portion of the offer was re-
instated on the following day during the conference phone
call. (In this respect, I think that Alvarado has telescoped the
two phone conversations into one.) In this respect, therefore,
I conclude that the Respondent has violated Section 8(a)(1)
by promising a wage increase to employees in order to in-
duce them to refrain from engaging in union and protected
concerted activity.
F. Lucio Ortiz’ Rent
Lucio Ortiz who signed a union card on October 5, 1991,
and worked at Pathmark repairing pallets was not laid off on
November 1, 1991. He did, however, go out on strike on or
about November 11, 1991. Before going out on strike, his
union activities were unremarkable. Ortiz testified that on or
about November 8, 1991 (before he went out on strike),
David D’Amiano told him that his rent was being increased
from $200 to $600 a month because Ortiz had a woman and
a child living with him in an apartment owned by David
D’Amiano. Ortiz also testified and David D’Amiano denied
that the latter said that the rent was increased because Ortiz
was a member of the Union. Thereafter, a compromise was
reached and the rent was raised to $300 a month.
David D’Amiano owns a number of apartment houses and
he lets apartments to his employees, many of whom live to-
gether as their families are in Mexico. He testified that he
charges $200 per month per person rather than charging rent
by the apartment. D’Amiano testified that in the case of
Ortiz, he lived with two other men in the apartment, each of
whom was charged $200 per month. D’Amiano states that
after the two other men moved out and he discovered that
Ortiz’s brought in his ‘‘family,’’ he applied the same rule
and sought to charge Ortiz $200 for each person in the apart-
ment.
The evidence appears to show that employees leasing the
apartments owned by David D’Amiano have been charged
$200 per person, this being a consistent practice. For exam-
ple, the Dauman Pallet payroll records (R. Exh. 13) show
that Sacramento Rojas had $200 deducted each month for
rent. As such, it seems to me that the General Counsel has
not sufficiently demonstrated that the increase in Ortiz’ rent
was caused by discriminatory reasons and I shall recommend
that this allegation be dismissed.
In June 1992, the utility company turned off the electricity
and gas. When Ortiz asked if he had sold the building, David
D’Amiano said no but that he wanted Ortiz to pay for the
utilities. Ortiz testified that about 2 weeks later, the fire de-
partment threw the tenants out of the building whereupon he
199DAUMAN PALLET, INC.
22 The word ‘‘maricon’’ is a Spanish slang expression used to call
a man a homosexual. In Latin American cultures this can be viewed
as a grave insult depending upon context and vocal intonation.
told David that he was vacating the apartment and asked
David for the return of the rent he had paid for July 1992
and the return of the deposit he had given in July 1991. He
states that D’Amiano promised to return $250 of the rent but
not the deposit. He also testified that he never received any
of the money.
The question here is whether this later dispute was moti-
vated by Ortiz’ union activities or was simply a continuation
of the former dispute about how much rent he should pay
for the apartment. On balance, I am pursuaded that David
D’Amiano’s refusal to return the deposit or the remainder of
the July rent money was consistent with his contention that
the rent for these apartments was $200 per month per person;
that notwithstanding his earlier compromise with Ortiz at
$300 per month, this was David D’Amiano’s way of squeez-
ing out a few extra bucks in the rent dispute.
G. Recall of the Laid-Off Employees and the Strikers’
Offer to Return to Work
On or about November 12, 1991, the Employer sent tele-
grams to the laid-off employees asking them to return to
work by November 14.
In response to the Respondent’s November 12, the Union
sent a telegram to the Company offering, unconditionally, on
behalf of the strikers to return to work.
On November 14, 1991, most of the laid-off employees
and the strikers showed up for work. Those employees who
appeared on November 14 and who had been laid off were
reinstated. However, the strikers, except for Tomas Cervantes
and Gennaro Herrera, were not.
According to employees Alvarado and Landaverde, Joseph
D’Amiano told them that he would not recall the strikers;
that the Company had hired replacements for them. Indeed,
the evidence shows that the Company used some people em-
ployed by Robert Chrisman, an outside contractor, to con-
tinue to operate the Montgomery Grinder at the Woodbridge
yard during November and part of December 1991.
On or about November 21, the Company recalled strikers
Lucio Ortiz, Juan Reyes, and Francisco Reyes Cortez. The
following week, Mario Mendoza was recalled and Policarpo
Mendoza was not rehired until January 5, 1992. Two of the
strikers, Avelardo Murillo and Efrain Camacena, were never
recalled, the Company contending that they were discharged
for good cause.
In view of my conclusion that the strike was an unfair
labor practice strike, the Respondent was obligated to rein-
state the strikers immediately upon their unconditional offers
to return to work even if this required the Respondent to dis-
charge any employees it may have hired to replace them.
NLRB v. Efco Mfg., 227 F.2d 675 (1st Cir. 1955), cert. de-
nied 350 U.S. 1007 (1956). Although the Respondent ulti-
mately did recall all but two of the strikers, it delayed rein-
statement in the cases of Lucio Ortiz, Juan Reyes, Francisco
Reyes Cortez, Mario Mendoza, and Policarpo Mendoza. This
delay was, in my opinion, violative of Section 8(a)(1) and (3)
of the Act.
H. The Refusal to Rehire Avelardo Murillo and
Efrain Camacena
David D’Amiano testified that during the strike, Murillo,
while visiting the office, shoved him in the shoulder and
called him ‘‘maricon’’ in front of other people.22 D’Amiano
asserts that this was the reason that he refused to recall
Murillo. The Respondent called two witnesses, Steve Vaselli
and Thomas (Bear) Murphy who testified that they witnessed
the alleged incident. They respectively stated however, that
they did not think much of it at the time and that it did not
seem like a big deal. Murillo denied that he either pushed
David D’Amiano or that he called him a name. Murillo’s
version was corroborated by Gennaro Herrera.
As between David D’Amiano and his supporting witnesses
and Avelardo Murillo and his supporting witness, I am in-
clined to credit the latter. Accordingly, I conclude that the
Respondent’s failure and refusal to recall Murillo violated
Section 8(a)(1) and (3) of the Act.
The reasons given by the Respondent’s witnesses for re-
fusing to recall striker Efrain Camacena were, in my opinion,
contradictory and invalid.
David D’Amiano testified that Camacena was discharged
because he was caught overcounting the number of pallets
that he had repaired and that this was not the first time that
he had been warned about this. He asserted that although the
amount was not much; perhaps only $5 per day, it neverthe-
less was cheating. (Since he was paid on a piece rate basis,
his earnings were related to the number of pallets he re-
paired.) He also testified that the decision to discharge
Camacena was made by his father who was the one who
caught him.
Joseph D’Amiano testified that he didn’t recall who
Camacena was or why he was not reinstated. When pressed
about Camacena’s identity, he testified that he believed that
Camacena had made a false disability insurance claim on be-
half of his brother who had worked for the Respondent and
who apparently suffered a stroke while at work. (Since it is
agreed that Camacena’s brother was found in a comatose
state while at the Respondent’s premises, I don’t see how an
assertion that he had a job related injury or illness could be
construed as a deliberately false assertion.) In any event, Jo-
seph D’Amiano did not assert as a reason for Camacena’s
discharge, the allegation that he had overcounted pallets.
Camacena denied that he ever overcounted the number of
pallets that he repaired, and the Respondent did not produce
any credible testimonial or documentary evidence to support
its contention that Camacena had previously been warned for
this or any other reason. Moreover, as it is plain that the Re-
spondent’s witnesses have given inconstant versions of why
Camacena was not reinstated, I shall conclude that its failure
to recall this unfair labor practice striker was violative of
Section 8(a)(1) and (3) of the Act.
I. Transfers to Pathmark
Before November 14, 1991, the Company operated at
Pathmark with two groups of employees working on two
shifts of 10 hours each. Each shift had four employees and
they were supervised by Pathmark personnel under the over-
all direction of Pathmark’s manager, John Ormando. After
November 14, the Respondent manned the Pathmark job with
three shifts containing four men working 8 hours.
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 It is noted that two of the strikers whom the Respondent delayed
in reinstating had previously worked at Pathmark repairing pallets.
These were Lucio Ortiz and Francisco Reyes. Tomas Cervantes and
Gennaro Herrera were immediately reinstated to their jobs at
Pathmark.
24 As noted above, the Union and the Company entered into a
Stipulated Election Agreement on November 20, 1991. Among other
things, that agreement insured that any employee hired before No-
vember 17, 1991, who was also employed on the date of the elec-
tion, would be an eligible voter assuming that he or she was other-
wise part of the bargaining unit and not ineligible for some other
reason such as supervisory status.
After the employees who had been laid off on November
1, 1991, returned to work, about 16 of them were transferred
at various times from their previous jobs at Carteret to re-
pairing pallets at Pathmark.23 These transfers took place dur-
ing the period from November 14 to after the election which
was held on December 10. While it was shown that it was
possible to earn more money doing pallet repair work (done
on a piece rate basis) than working as a laborer at Carteret,
it also was shown that the pallet repair work was physically
demanding in comparison to many of the other types of du-
ties previously performed by these employees. Additionally,
whereas these employees had worked daytime hours at
Carteret, many were forced upon their transfer to Pathmark
to work on the evening or graveyard shifts. Thus, for some,
their hours of work were significantly changed as a result of
the transfer.
During the same period of time, the Company moved at
least two of its of employees (Valentin Rojas and Juan Tru-
jillo) who had worked at Pathmark to Carteret.
The question to be asked is what was the rationale for this
switch. Why was it done and what purpose did it serve?
David D’Amiano testified that in mid-November 1991,
Pathmark’s manager, John Ormando, requested that the Com-
pany use three, 8-hour shifts of four men each instead of the
existing two-shift system. D’Amiano testified that because of
this request, which necessitated the utilization of more em-
ployees but with fewer hours each, he could recall the laid-
off strikers and assign them to Pathmark. While this may
sound like a plausible rationale, its premise is undermined by
the fact that although the Company called Ormando as a wit-
ness, he did not testify that he ever made such a request on
the Respondent. D’Amiano’s explanation therefore strikes me
as a post hoc rationalization.
Since I discredit D’Amiano’s explanation as to why the
transfers were made, his intention becomes apparent if we
ask ourselves what purpose they would likely have served.
In my opinion, the principle purpose of these transfers was
to remove the union supporters from the other employees at
Carteret so as to disrupt any efforts they could expect to
have made to convince the undecided voters to vote for the
Union. It is also my opinion that another reason for the
transfers was to leave space at Carteret for employees whom
the Company hired or intended to hire before the payroll eli-
gibility date, in anticipation that any new people hired could
be expected to cast their ballots in favor of the Company.24
To put it bluntly, I think that a reason that the transfers were
made was to allow the Company to try to gerrymander the
unit. Finally, inasmuch as many of the transferees to
Pathmark were being asked to do new jobs and in many in-
stances at very inconvenient hours, I believe that the Com-
pany hoped that at least some of these union supporters
would quit and therefore be ineligible to vote in the Decem-
ber 13 election.
J. Disciplinary Warnings to Cuenca, Vasquez,
and Ramblas
On November 18, 1991, the Respondent issued written
warnings to Cuhuatemoc Cuenca, Mario Vasquez, and Isidro
Ramblas all of whom had signed union cards and who had
been transferred to Pathmark upon their recall from layoff.
They each received the same warning which related to the
fact that they had left work at 10 a.m. on Saturday, when
they were scheduled to work until 2 p.m.
Apart from the fact that the Company had never issued
warnings of this nature before, the warnings themselves are
senseless. The testimony of employees Vasquez and Ramblas
was that they left early because no pallet deliveries were im-
manent. According to Vasquez, they asked the Pathmark su-
pervisor if they could leave early and he said that they could
do whatever they wanted to do. This was unrebutted by the
Respondent, which acknowledged elsewhere that its employ-
ees, while at Pathmark, are supervised by Pathmark per-
sonnel.
On December 5, 1991, David D’Amiano issued a written
warning to Marco Zarate, an employee who also had signed
a union card. This stated in substance that he was absent for
2 days without having called in. The letter warned that any
reoccurrence would subject Zarate to severe disciplinary ac-
tion which could lead to termination.
The written warning to Zarate, like the written warnings
to the three other employees noted above, seems to have no
precedent in the Company’s history and therefore can be
construed as a new practice promulgated because of the
union organizational drive. There being no evidence to show
that these warnings were consistent with prior company prac-
tice, I shall conclude that the motivation in issuing them was
to retaliate against union supporters. Accordingly I find that
the issuance of these warnings constituted a violation of Sec-
tion 8(a)(1) and (3) of the Act.
K. The December 10, 1991 Layoffs
Three days before the election, the Company laid off the
following employees for 3 days:
Name Job as of December 10, 1991
Cuhuatemoc Cuenca Pallets/Pathmark
Leovigildo Gomez Pallets/Pathmark
Antonio Gonzalez Laborer/Woodbridge ???
Alejandrino Guzman Pallets/Pathmark
Ignacio Landaverde Forklift/Carteret
Etelberto Mendoza Laborer/Carteret
Mario Mendoza Forklift/Carteret (Pathmark
on 12/14)
Florencio Moctezuma Pallets/Pathmark
Roberto Pena Pallets/Pathmark
Isidro Ramblas Pallets/Carteret
Francisco Reyes Pallets/Carteret
Juan Reyes Pallets/Carteret
Mario Vasquez Pallets/Pathmark
Pedro Ventura Pallets/Pathmark
Marco Zarate Pallets/Pathmark
201DAUMAN PALLET, INC.
All of these people had signed union cards and all either
were strikers or had picketed the Company or both.
While asserting that these layoffs were economically moti-
vated and that the proximate cause was the Company’s lack
of sufficient funds to pay their wages, it is noted that the
Company had hired a number of other employees shortly be-
fore this group layoff. In this regard the evidence shows:
1. General Counsel’s Exhibit 55, the ADP Master Control
Report dated August 1992, shows that a man named
Budinski was hired in November 1991 as a mechanic. He
however does not appear on the payroll records as being paid
until February 1992. The inference here is that this person
worked off the books from November 1991 till February
1992.
2. The payroll records show that Maurice Murchison
began working in the pallet area during the pay period end-
ing November 17, 1991. Mario Mendoza testified that Mau-
rice Murchison had been fired in the spring of 1991 and the
Company’s payroll records show that the last week he
worked in 1991 was during the week ending April 28, 1991.
3. The payroll records show that an employee named Wil-
liam Curry had been terminated in July 1991 and was rehired
for the recycling area during the week ending December 6,
1991.
4. The payroll records show that an employee named Ken-
neth Gilliam who was hired originally in August 1990, was
terminated in late September 1991 and rehired for the pallet
area, during the week ending December 1, 1990.
5. The payroll records show that an employee named Mi-
chael Murray who was originally hired in June 1991 was ter-
minated during the week ending October 20, 1991, and was
rehired for the recycling area, during the week ending De-
cember 8, 1991.
6. The payroll records show that an employee named
Owen Sharkey who was originally hired in June 1991, was
terminated during the week ending October 6, 1991, and was
rehired for the pallet area during the week ending December
6, 1991.
Therefore, all of these people, in addition to the workers
employed by Chrisman at the Woodbridge yard, were hired
after the Union made its recognitional demand; after the No-
vember 1 layoffs; and after the strike commenced. They were
retained despite the fact that the Company delayed its recall
of the unfair labor practice strikers who had unconditionally
offered to return to work on November 12, 1991. Moreover,
despite having been recently hired (or rehired), this group of
people, who were not involved with the Union, were retained
on December 10, 1991, when the Company, purportedly for
economic reasons, decided to lay off another group of em-
ployees, all of whom had supported the Union by signing
union cards. There is, in my opinion a limit to coincidence,
and it is my opinion that we have passed it. It is my conclu-
sion that the key factor in deciding who to lay off on De-
cember 10, 1991 (assuming that that there was even any jus-
tification for the layoff in the first place), was who the Com-
pany believed were supporters of the Union and who the
Company believed were not.
L. Change in Pallet Piece Rates
Historically, the Company has paid those people who re-
pair pallets by the piece. Prior to the Union’s organizing
drive, the rate for pallets at Pathmark was 35 cents per pallet.
It is undisputed that in February or March 1992 (after the
election), the Company reduced the piece rate at Pathmark
to 30 cents per pallet and therefore reduced the rate of pay
for these employees. This reduction was applied to all of the
employees at Pathmark except for an employee named
Bonifacio Flores, who happened to be the only person there
who did not sign a union authorization card.
The Respondent’s witnesses testified that it decreased the
piece rate because there was an increased amount of scrap
wood that it was required to buy from Pathmark and this af-
fected adversely its net profit from that company. Again
however, Pathmark’s manager, John Ormando, failed to sup-
port this contention and testified, contrary to the testimony
of Joseph and David D’Amiano, that there was no increase
in the amount of scrap wood in February or March.
As the Respondent’s explanation is, in my opinion, noth-
ing more than a pretext, I conclude that the change in the
piece rate was motivated by antiunion considerations and
constituted a violation of Section 8(a)(1) and (3) of the Act.
M. Alleged Refusal to Recall Vacationers
The General Counsel alleges that the Respondent discrimi-
nated against five employees by refusing to put them back
to work immediately upon their return to the United States
after having made extended trips to their native countries.
These persons are Rodrigo Armengolt, Isidro Ramblas,
Acasio Galindo, Mario Vasquez, and Hector Galves.
There was testimony by some of the General Counsel’s
witnesses that in the past, they had been given permission to
take substantial amounts of time off to visit their homelands
and that upon their return they were immediately put back
to work. While I have no question as to the fact that such
employees have been recalled in the past, I don’t believe that
their testimony can be construed as proving that the Com-
pany had an unqualified policy or practice of giving any per-
son his original job back immediately upon his return to the
United States and irrespective of whether they had been
away longer than expected and regardless of the Company’s
employment situation at the time of return. Such a policy
would be irrational in my opinion, and although I view the
D’Amiano’s as being somewhat tempestuous, I don’t think
that they are stupid.
Rodrigo Armengolt was hired in April 1989 and prior to
November 3, 1991, was on the Dauman Recycling payroll in
department 700 (laborers). He testified that he worked as a
switcher and the records show that he was paid $8 per hour.
He signed a union card in October and was one of the em-
ployees laid off on November 1, 1991. He engaged in pick-
eting until about November 8 or 9, 1991, whereupon he went
to Mexico until the end of the month. While in Mexico, the
Company sent a telegram to his New Jersey address advising
that he was being recalled. Armengolt testified that after he
returned and found the telegram at his home (presumably
sometime in late November or early Dec. 1991) he spoke to
David D’Amiano about going back to work but was told that
he was too late, albeit David would speak to his father about
it. Armengolt testified that he was rehired in mid January
1992 to do basically the same work as he had done before,
but was told that he would be paid at $7 per hour because
he was a new employee. (He appears again on the Dauman
Pallet payroll record during the week of Jan. 23, 1992, in de-
partment 600 with a pay rate of $7 per hour.)
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 After receiving a valid offer of reinstatement, a discriminatee is
entitled to a reasonable time to accept or reject the offer.
Friedeman’s Calcasiue Locks Shipyard, 208 NLRB 839 (1974). In
the present case, I do not believe that foreclosing Armengolt’s ac-
ceptance of the offer after a 2- or 3-week period when he was out
of the country, fulfills the obligation to give him a reasonable time
to accept the reinstatement offer.
In Armengolt’s case, there really is no issue as to whether
he was on a ‘‘leave of absence,’’ since he went to Mexico
while on lay off status, which was discriminatorily caused in
the first place. While it is true that the Company on or about
November 12, 1991, did send a telegram to Armengolt offer-
ing to recall him, this did not discharge its obligation to rein-
state him when he received the telegram in late November
and sought to return to work.25 Having already concluded
that the November 1 layoffs were violative of the Act, I find
that the Company’s refusal to recall Armengolt when he re-
turned to this country constituted a violation of Section
8(a)(3) of the Act. I also conclude that although the Re-
spondent did recall Armengolt in January 1992, it violated
the act by reducing his wage rate from $8 per hour to $7
per hour.
Isidro Ramblas who worked in pallet repair signed a union
card in October and was one of the employees laid off on
November 1, 1991. He returned to work in mid-November
after receiving a telegram offering reinstatement but was
transferred from the Carteret yard to Pathmark. In early De-
cember 1991, Ramblas told David D’Amiano that he was
going to go to Mexico and asked if he would be rehired
when he returned. He states that D’Amiano replied that there
might not be work when he returned. On December 15,
1991, 2 days after the election, Ramblas left for Mexico and
stayed there until March 29, 1992. He testified that upon his
return, he asked David D’Amiano for his job back and was
told that there were too many people at work and suggested
that he go with the lady from the Union. Sometime in late
June 1992, Ramblas again left for Mexico and after his re-
turn in July, he was recalled to work on August 21, 1992.
Upon his return, he was assigned to Carteret doing pallet re-
pairs.
In my opinion, the testimony of Ramblas does not indicate
that he was given permission to take an extended vacation
with the guarantee that a job would be waiting for him upon
his return. On the other hand, a review of the Respondent’s
Autopay Master Control records for 1992 (G.C. Exh. 55)
shows that about 18 new employees were hired between
April 1, and June 15, 1992, at wage rates ranging from $5.05
per hour to $11 per hour. Among those hired during this pe-
riod included Mark and Mike Boland on May 5, 1992; Jason
Bowers on May 19, 1992; Salvatore Collova on May 4,
1992; Bonifilio Guerera on May 11, 1992; Ruben Holmes on
May 27, 1992; Michael Kelly on June 15, 1992; and Tim-
othy McKim on Juen 15, 1992, etc.
Given my earlier conclusion that the Respondent had
discriminatorily laid off Ramblas on November 1, 1991, and
in view of the fact that the Respondent hired a fairly large
number of new employes in the months of April, May, and
June 1992, I am impelled to the conclusion that the Respond-
ent acted with antiunion motivation in failing to recall or re-
hire Ramblas when he returned from Mexico on March 29,
1992.
Acasio Galindo was hired in April 1989 and repaired pal-
lets on the Dauman Pallet payroll. He was one of the em-
ployees who signed a union card but was not laid off on No-
vember 1, 1991, because he had already left the country.
Galindo testified that he was given permission by David
D’Amiano to go to Mexico for 2 months beginning in Octo-
ber 1992. However, he continued to stay in Mexico until
April 1992 and there is no evidence that he asked for or re-
ceived permission to extend his vacation by another 3 or 4
months. Galindo testified that when he asked for his job
back, David D’Amiano told him that there was no money
and no job. He testified that he stayed at the same residence
with the same phone number as he had before going to Mex-
ico and that he remained there until July 1992 when he went
to Atlantic City. Galindo never received an offer to return to
work.
Galindo’s case is very similar to the Ramblas situation in
that Galindo, even if he had been given permission to take
off for 2 months, overstayed his vacation by 3 or 4 months.
As such, I would have no problem if the Company had cho-
sen not to reinstate him if it could show that there was any
decent reason not to do so and if the evidence did not also
show that the Respondent hired a slew of new employees
after Galindo returned and asked for his job back. In view
of the evidence of antiunion animus and the failure to present
any reasonable basis for its refusal to rehire Galindo, I con-
clude that its failure to do so constituted an 8(a)(3) violation.
Mario Vasquez began work in May 1990 and worked on
the Dauman Pallet payroll record as a laborer. He signed a
union card on October 5, 1991, and was one of the people
who was laid off on November 1, 1991. Commencing on or
about November 4, 1991, he engaged in picketing and was
recalled by the Company when he received the November 12
telegram. As noted above, he received a disciplinary warning
on November 18, 1991, while working at Pathmark and I
have previously concluded that this warning was discrimina-
tory in nature.
Vasquez testified that in June 1992 he received word that
his wife was sick in Mexico and asked Joseph D’Amiano for
permission to leave for 3 months. Vasquez states that
D’Amiano said, ‘‘fine’’ although he refused to give a com-
mitment that he could have his job back when he returned.
According to Vasquez, he returned to the United States on
July 5, 1992, and spoke to David D’Amiano who said that
he could not put him back to work immediately. Vasquez
testified that he was called back to work 2 weeks later.
(Around July 17, 1992.)
I do not think that the evidence here is sufficient to show
that the Respondent’s refusal to rehire or recall Vasquez for
a mere 2-week period was discriminatorily motivated. In this
regard, it is noted that between July 5 and 17, 1992, the only
newly hired bargaining unit person was Scott Brendel who
was hired on July 13, 1992. (There were two women hired
during this period, Shellie Kovaks and Claudia Pacheco, but
they were hired for office jobs.)
Hector Galves began in May 1990 and worked as a la-
borer. He is listed on the Dauman Pallet payroll as a laborer
with a pay rate of $7.50 per hour. He signed a union card
on October 12, 1991, attended union meetings, and was laid
off on November 1, 1991. Along with many of the other
laid-off employees, he picketed until recalled to work in mid-
November 1991. Galves claims that when he returned from
203DAUMAN PALLET, INC.
El Salvadore sometime in February 1992, his wage rate was
reduced to $6 per hour. This, however, is not supported by
the payroll records which continue to show that he got paid
at $7.50 per hour and worked some overtime hours until he
left the Company in May 1992. As I view the evidence re-
garding this allegation to be insufficient, I shall recommend
that it be dismissed.
N. Reassignment of Leovigildo Gomez
The General Counsel alleges that the Respondent violated
the act by reassigning Gomez in April 1992.
Gomez began working for the Company in June 1990. In
September 1991 he was transferred from Woodbridge to
Carteret and worked at unloading pallets from trailers. In Oc-
tober 1991 he signed a union card, attended union meetings,
and was laid off on November 1, 1991. On or about Novem-
ber 14, he was recalled and transferred to Pathmark to repair
pallets.
In December 1991, Gomez was transferred to Carteret to
make pallets. He testified that he preferred to work at
Pathmark. In March, Gomez was reassigned to repair pallets
at Pathmark because one of the workers at that location was
going on a trip to Mexico. Also in March 1992, Gomez,
along with a number of other employees of the Company,
signed a petition authorizing the Union to file an FLSA com-
plaint with the Department of Labor which contended that
the Employer had not paid overtime at time-and-a-half rates.
(I am not sure how this would affect Gomez since he worked
on a piece rate basis since Nov. 14, 1991.)
In early April 1992, Gomez was told that the vacationing
worker was returning from Mexico and therefore he would
have to return to Carteret. Gomez thereupon told David
D’Amiano that he wanted to stay at Pathmark and according
to Gomez, David said that he would try to work it out. He
testified that on the following day, David told him that he
could stay at Pathmark but would, temporarily, have to alter-
nate days with another worker. According to Gomez, this sit-
uation lasted for about a week whereupon he resumed work-
ing full time at Pathmark. Gomez also testified that in mid-
April 1992, David D’Amiano had him work some double
shifts and I suppose this was done to make up for the time
lost by Gomez when he alternated days during the 1-week
period described above.
Based on the testimony of Gomez, I see no evidence that
the Company violated the Act insofar as its dealings with
him in March and April 1992. To the contrary, I see evi-
dence here that the Company tried to accommodate him to
the extent possible.
O. Discharge of Mario Mendoza
Mario Mendoza began working at the Company in June
1989. In August 1991, he transferred from Woodbridge to
Carteret where he worked in department 700 as a laborer
earning $8 per hour.
In October 1991, Mendoza attended union meetings and
signed a union card on October 5, 1991. He was not, how-
ever, laid off on November 1, 1991, and he worked at the
Carteret yard on Monday and Tuesday before going out on
strike on November 6. According to Mendoza, on Friday,
November 8, he went to pick up his check and David
D’Amiano said in Spanish that Mendoza had stabbed him in
the back by going on the picket line. (David D’Amiano is
fluent in Spanish.)
Mendoza was recalled to work at Carteret in late Novem-
ber or early December 1991. He testified that when he re-
turned, David D’Amiano told him that he would only be al-
lowed to work 40 hours a week and he asserts that some
newly hired employees were working more than 40 hours per
week. As to this latter claim, it was evident from his testi-
mony that he was in no position to competently testify re-
garding the hours of other employees and his opinion as to
this is not given much weight even if sincerely expressed.
Mendoza was one of the employees laid off on December
10, 1991, and he was the Union’s observer at the election
held on December 13, 1991. On the following day, David
D’Amiano told Mendoza that he was being transferred to
Pathmark to repair pallets. When Mendoza said he didn’t
know how to do that, D’Amiano said it didn’t matter; he
would learn.
According to Mendoza, on or about April 28, 1992, he
was told by Ormando, Pathmark’s manager, that he could no
longer work there anymore. Mendoza testified that he then
spoke to his immediate supervisor at Pathmark, a Green, who
said that he was not aware that there was anything wrong
with the pallets done by him. Upon his return to the office,
Mendoza asserts that David D’Amiano said that his pallets
were not done right and that he couldn’t work at Pathmark
anymore. Thereafter, Mendoza applied for and obtained un-
employment benefits.
At the start of the trial, the Respondent asserted that Men-
doza had quit. Subsequently, David D’Amiano testified: ‘‘I
know he was let go at Pathmark. If we had work for him,
we probably would have put him to work. I really don’t
know if he ever went back to work or not.’’ Although the
Respondent called Ormando as its witness he was not asked
about Mendoza. Green was not called to testify and therefore
he did not enlighten us about the circumstances leading up
to Mendoza’s leaving.
Applying the test of Wright Line, supra, I am inclined to
believe that the General Counsel has made out a prima facie
case that Mendoza was either fired or laid off because of his
union activities. As the Respondent has not met its burden
of showing that his termination was for other reasons, I shall
conclude that the Respondent violated Section 8(a)(1) and (3)
by discharging Mario Mendoza on April 28, 1992.
P. The July 1992 Layoffs of Lucio Ortiz and
Albino Diaz
Both employees signed union cards in October 1991 and
attended union meetings. Diaz was one of the people laid off
on November 1, but Ortiz was not. However, Ortiz did join
the picket line on November 11, 1991.
I have already discussed the troubles between Ortiz and
David D’Amiano regarding his rent and so I won’t repeat
that here. Before November 1, 1991, Diaz worked as a la-
borer in Carteret and after his return from the layoff, he was
assigned to work at Pathmark repairing pallets.
Both of these employees testified that they were laid off
on July 17, 1991. Ortiz was not recalled, at least not by the
time the hearing in this case closed on October 2, 1991.
However, in the case of Diaz, he testified that he was re-
called to work about a couple of weeks later, although ac-
cording to General Counsel’s Exhibit 55 (the Autopay Mas-
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ter Control for 1992), it indicates that Diaz was rehired on
August 20, 1992. At the time of their layoffs, both employ-
ees were working at Pathmark doing pallet repairs.
The hearing in this case opened on June 1, 1991, and Diaz
testified that he was at the Board’s Newark office during the
first week of the trial waiting to give testimony. (He was not
called at that time.) The General Counsel suggests that Diaz
was selected for layoff at Pathmark because the Respondent,
in passing by the lobby of the NLRB’s office, saw that Diaz
was sitting there and therefor surmised that he was going to
testify against it. As to Ortiz, the General Counsel contends
that the April 28, 1992 version of the complaint apprised the
Respondent that an employee was complaining about his
rent, thereby apprising it that Ortiz, who was the only em-
ployee with a rent dispute, was making an unfair labor prac-
tice allegation. (I don’t quite understand how this makes
Ortiz stand out from the dozens of other employees having
equivalent unfair labor practice allegations.)
In this instance, I am not pursuaded that the General
Counsel has established these specific allegations, at least as
to the layoffs. The evidence tends to show that the Com-
pany’s income did go down from May through July 1992.
Thus, Respondent’s Exhibits 32(a), (b), and (c) comprising
summaries prepared by Michael Blancato, the Company’s
controller, show that income from pallet repairs for May was
$290,342, for June $271,216, and for July $248,283. For Au-
gust 1992, income from pallet repair rose to $338,873. Simi-
larly, total income for the Company went from $723,897 in
May, to $604.954 in June, to $559,555 in July, and back up
to $681,467 in August 1992. As to the selection of Ortiz and
Diaz, there really is not much to distinguish them from the
other employees working at Pathmark, many of whom were
alleged to have been illegally transferred to that location be-
cause of their union activities.
Having said that I do not believe that the General Counsel
has established that the layoffs were violative of the Act, I
do not understand why the Respondent did not recall Ortiz,
as it did Diaz, in August 1992 when work picked up. There-
fore, given the other unfair labor practices already found, in-
dicating antiunion animus, and the failure to explain why
Ortiz was not recalled as work picked up, I conclude that the
Respondent violated Section 8(a)(3) of the Act by not recall-
ing Ortiz in August 1992. (For purposes of determining back
pay, I will assume that he likely would have been recalled
at the same time as Diaz absent the discrimination.)
Q. The Alleged Discrimination Against
Domitilo Sanchez
Domitilo Sanchez who signed a union card on October 12,
1991, but who neither was laid off nor a striker, was an im-
portant witness presented by the General Counsel and testi-
fied on September 21, 1992. He testified, among other
things, that after November 1, 1991, he worked at the
Woodbridge yard where there were a group of new people
working with the Montgomery Grinder who were connected
to Robert Chrisman. His testimony, which I believe, strongly
undermined the assertion by the Company that the Mont-
gomery Grinder was shut down at that time and that this was
a major reason for the November 1 layoffs. Moreover, his
testimony that there were new people working at the Mont-
gomery yard doing essentially the same work as people who
had been laid off, also undercut the Respondent’s defences
for the layoff.
Sanchez testified that in September 1992 he was working
at Carteret but not on any fixed schedule. He testified that
on September 22, 1992 (the day after he gave testimony), he
was told to go home at about 3:25 p.m. According to
Sanchez, when he got him home, his wife told him that she
had received a call from David D’Amiano informing her that
he and his cousin and coworker Pedro Sanchez should not
come in the next day but should call in the morning about
going to work. On September 23, 1992, Sanchez called
David D’Amiano at about noon and was told to come to
work. Instead, he came to the Labor Board and testified
about the events of September 22.
The Respondent’s position was that Sanchez was sent
home a little early on September 22, 1992, because they had
to fix the clutch on the tub grinder that he worked on.
While there may have been a reason for the Company to
retaliate against Sanchez because of the testimony he gave in
this hearing, I think that the General Counsel here has made
much ado about nothing. At most, Sanchez was told to go
home somewhat earlier than normal and was told to call in
on the following day. When he did, he was told to go to
work. This set of facts does not convince me that the Com-
pany discriminated against Sanchez either because of his
union activities or because he gave testimony against the Re-
spondent during the hearing.
R. The Alleged Constructive Discharge of
Nehemias Alvarado
Nehemias Alvarado began work according to company
records on December 15, 1991. He worked, prior to Novem-
ber 1, 1991, on the Dauman Recycling payroll in department
700 (laborers).
Alvarado signed a union card at a union meeting held at
an employee’s house in October 1991. He was laid off on
November 1, 1991, at which time he was employed on the
day shift earning $9 per hour.
Alvarado was one of the major witnesses called by the
General Counsel, testifying on June 4 and 5, 1992. He testi-
fied as to which people were employed as of November 1,
1991, and what they did. He testified about the meeting at
the diner described above and he also testified about a num-
ber of other conversations that are alleged to be an 8(a)(1)
violation.
On November 15, 1991, Alvarado returned to work at
Carteret. On December 10, 1991, he was one of the people
laid off before the election. When he was recalled, he was
assigned to repairing pallets at Pathmark. (In this respect, his
reassignment was somewhat different from the other people
who were transferred to Pathmark before the election.) In
any event, from late December 1991 until the time he quit
on July 14, 1992, Alvarado was assigned to the late shift (11
p.m. to 7 a.m.) which meant that his hours of work were
drastically changed from what he had worked before.
According to Alvarado, the dust at the Pathmark facility
made him sick from the time that he was transferred to that
facility. (There is no question but that there is dust at the
Pathmark facility. But there is also a good deal of dust at
Carteret, which however, is unlike Pathmark in that Carteret
is an open air facility.) Alvarado testified that because of the
dust, he went to Doctor Manuel Lopez in 1991 and got a
205DAUMAN PALLET, INC.
26 Notwithstanding Alvarado’s prevarication about his visit to Dr.
Lopez, I am inclined to believe his version of the events regarding
the diner meeting which was corroborated by Landaverde. However,
insofar as any 8(a)(1) allegation of the complaint is based solely on
Alvarado’s testimony, I shall recommend that it be dismissed be-
cause of my doubts as to his credibility. For example, I shall rec-
ommend dismissal of the following allegations:
1. That on November 14, 1991, Joseph D’Amiano threatened
to sell or close the business and threatened to reduce the hours
of those employees who signed union cards. (In this regard I
note that Landaverde, who was with Alvarado on November 14,
did not corroborate his testimony on these points.)
2. That the Respondent, in December 1991, prohibited em-
ployees from talking about the Union on its premises.
3. That on June 3, 1992 Joseph D’Amiano promised to trans-
fer him back to Carteret if he did not testify against the com-
pany.
27 G.C. Exh. 47 is a summary of overtime hours as shown by
Dauman Pallet’s payroll records for the period from January 3, 1990,
through December 22, 1991. It shows significant amounts of over-
time pay from January 3, 1990, though October 1990 at which time
overtime declined and thereafter ceased from the period ending No-
vember 25, 1990, to the end of 1991.
Also received into evidence were the Dauman Pallet weekly pay-
roll records as R. Exh. 13 and the Dauman Recycling payroll records
which are R. Exh. 12. The former leaves off at the week ending July
21, 1992, and R. Exh. 12, combines both groups from that point on-
ward. These records show that of the seven or eight hourly paid em-
ployees who were on the Dauman Pallet payroll until June 21, 1992,
the people who worked some overtime after January 1992 were Hec-
tor Galves, Manuel Garcia, Domitilo Sanchez, Pedro Sanchez,
Ignacio Landaverde, and Cuhuatemoc Cuenca, all of whom signed
union cards. However, Domitilo and Pedro Sanchez, far exceeded
anyone else in the amount of overtime they worked and although
both were card signers, they were not among the people laid off on
November 1, or December 10, 1991, and were not strikers. Also
working a lot of overtime hours relative to the other employees, was
Cuhuatemoc Cuenca.
prescription which did not help that much. He testified that
his condition grew progressively worse but he did not go
back to Dr. Lopez.
Alvarado testified that on July 14, 1992, he told David
D’Amiano that he was very sick; that he had a sore throat,
couldn’t speak well, had a sore back, and that he could not
continue to work his shift at Pathmark. He states that he
asked if David could give him his old job back and was told
that there was no other vacancy at that time, but would call
Alvarado when a position became available. Alvarado testi-
fied that he told David D’Amiano that he was going to apply
elsewhere for a job, albeit he was still interested in working
at Dauman. He states that David asked if he was quitting and
he replied no; that he only wanted to switch back to his old
job.
The Respondent showed that Alvarado obtained a new job
on June 5, 1992, working as an independent contractor, for
First Interregional Equity Corp at $200 per week. More im-
portantly, the Respondent demonstrated that Alvarado did not
go to Dr. Lopez at any time during 1991; the last entry in
the medical record being a visit on September 23, 1990.26
Alvarado conceded that Pathmark provided masks to anyone
who wanted them. Additionally, Alvarado did not at any
time during the 8-month period prior to the time he quit,
complain to Dauman’s management or Pathmark’s manage-
ment that the dust in the air was making him sick.
In EDP Medical Computer Systems, 284 NLRB 1232,
1234 (1987), the Board stated:
To establish a constructive discharge, it must first be
proven that the burdens on the employee caused and
was intended to cause, a change in working conditions
so difficult or unpleasant as to force the employee to
resign. Second, it must also be shown that these bur-
dens were imposed because of the employee’s union or
other protected concerted activities. See Groves Truck
& Trailer, 281 NLRB 1194 (1986); Union 76 Auto
Truck Plaza, 267 NLRB 745 (1983).
. . . .
The proper standard requires not only that the
change in working conditions be difficult and unpleas-
ant, but that the change be so difficult and unpleasant
that it forces resignation. Algreco Sportswear Co., 271
499, 500 (1984).
Therefore, assuming that the the transfer of Alvarado to
work at Pathmark repairing pallets was burdensome and mo-
tivated because of his union activities, it still must be shown
that this was, in fact, the reason that he quit.
Had Alvarado quit soon after being assigned to Pathmark
because of his dislike for being shifted from the day shift to
the graveyard shift, this probably would have been sufficient
to establish a constructive discharge. Kime Plus, Inc., 295
NLRB 127, 145 (1989). But that was not the reason that Al-
varado claims that he quit. Rather, he asserted that it was the
dust at Pathmark which was the principle reason for quitting
as this made him so sick that he no longer could work there.
The problem is that Alvarado did not, as he claimed, go to
Dr. Lopez at any time that he worked at Pathmark and he
never once complained about his ailments until the final day
of the 8-month period that he worked there. That is, the rea-
son he quit is demonstrably not what he claimed it to be and
it is more likely that the real reason was simply because he
had gotten another job.
S. Alleged Discriminatory Reduction of Overtime Hours
According to some of the General Counsel’s witnesses
they were sent home on November 1, 1991, at about 3 p.m.
and told by Supervisor Macrina that they no longer could
work more than 40 hours a week. Assuming arguendo that
such a statement was made, this was the same day that the
Company laid off these employees. That is, the evidence
shows not that their overtime was reduced; rather it shows
that 25 employees lost their jobs for 2 weeks. To talk about
a reduction in overtime hours for people who were laid off
is meaningless.
It seems to me that the question here is whether or not the
Employer, after the return of the laid-off employees and the
termination of the strike, discriminatorily assigned overtime
work to one group of employees while depriving another
group (union supporters) of this work. Since, the payroll
records in evidence do not show such a disparity either be-
fore or after the Union began to organize the employees,27
the factual questions are:
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Time cards are not records which are required to be retained
pursuant to the Fair Labor Standards Act (FLSA) provided that daily
hours are transcribed onto weekly payroll records that otherwise
would meet the record keeping requirements. 29 CFR § 516, et seq.
29 The fact is that G.C. Exh. 47 and R. Exhs. 12 and 13, dem-
onstrate that overtime was documented in the payroll records from
January 3 to November 18, 1990, and from January 1 through Au-
gust 1992.
1. Is there any means to determine whether there was
a disparity between one group and another and which
particular employees, if any, were adversely affected?
2. Over what period of time did this disparity take
place?
3. Is there any mechanism by which to measure the
disparity, assuming that one exists, so as to determine
who would receive how much back pay?
Some of the General Counsel’s witnesses testified that
prior to November 1, 1991, they worked an average of 50,
60, and 70 or more hours per week. They testified that at
some point in early 1991, before there was any union around,
the Company started paying employees at straight time for
overtime hours and paid such amounts in cash. (The regular
40 hours being paid by check.) It is argued that because the
Company did not retain timecards and because its weekly
payroll records did not reflect the alleged cash payments for
overtime hours, the payroll records are not accurate.28
On the other hand, I find problematical the inference that
a company would pay what would, according to the General
Counsel’s evidence, be huge amounts of cash to employees
which it then could not document as a business deduction for
tax purposes. Also, even assuming that employees, at some
period prior to the union’s advent on the scene, did work un-
documented overtime (at straight time wages),29 this by itself
does not show that there was similar amounts of overtime
available after the Company moved its facilities from
Woodbridge to Carteret. The income summaries introduced
through the Company’s controller show that the Company’s
gross earnings for the first 8 months of 1992 were lower by
$370,342 than the similar period in 1991.
As indicated above, I think the crucial factual issue here
is whether there is convincing evidence that the Company
discriminated against union supporters in the assignment of
overtime hours.
In support of its contention that overtime was
discriminatorily reduced for the union supporters, the General
Counsel adduced testimony on this subject from Ignacio
Landaverde, Hector Galves, Manuel Garcia, and Mario Men-
doza.
Mario Mendoza was one of the strikers and he returned to
work at Carteret around November 20, 1991. He asserts that
when he returned he was told that his hours would be from
8 a.m. to 4:30 p.m. However, as he worked at repairing pal-
lets, his earnings were not based on a wage rate but rather
on a piece rate. Although he testified that new employees
working at Carteret during late November and early Decem-
ber worked more than 40 hours per week, he could not state
who they were or what they did. Moreover, it is not at all
clear that Mendoza was in a position to ascertain the actual
hours of other people. He claimed that they came to work
earlier then he or left later than he.
The Dauman Recycling payroll records do not show that
any employees worked overtime during late November and
early December 1991. (The first recorded overtime on these
records occurred in Jan. 1992.) The Dauman Recycling
records show that seven employees, in addition to working
on an hourly rate, also did some piecework during the weeks
ending November 24 and December 1, 1992. However, the
amounts do not appear to be significant and were of ex-
tremely limited duration. The largest figure was for Eugene
Murchison, who in addition to working his 40-hour shifts,
also earned $211.75 and $79.50 for each week. At the other
extreme, Chris Moore, James Govan, and Anthony Fabrizzio
earned from $1.50 to $3 during either week. The remainder,
Lloyd Mullen earned $120 at piece rates during the week
ending November 24; Jan Chwialkloski earned $93 at piece
rates during November 24 and $81.10 during the week end-
ing December 1; and Donald Bartlett Sr. earned $90 at piece
rates during the week ending November 24.
Hector Galves testified that prior to February 1991 he gen-
erally averaged 6 days a week and worked a great deal of
overtime. (This is consistent with the summaries prepared by
the General Counsel which show a significant amount of
overtime up until the end of Nov. 1990.) Galves testified that
in January and February 1992, he worked less overtime than
before. (Before when?) He states that after he signed the
FLSA’s overtime complaint in March 1992, Fabrizzio told
him that if he punched in at 7 a.m. he would have to punch
out at 3 p.m. (i.e., a 40-hour week).
The Dauman Pallet payroll records show that Galves did,
in fact, work overtime from January through May 17, 1992,
when he left the Company. (During the week ending May
17, 1992, the records indicate that he earned $33.75 in over-
time pay.) Thus, although the General Counsel asserts that
his overtime hours were withdrawn after he signed the
FLSA’s petition on March 14, 1992, the payroll records re-
flects his continued receipt of overtime pay after that date.
Manual Garcia testified that he too worked a great many
overtime hours in the past. He states that when he was re-
called from the November 1, 1991 layoff, he worked 8 a.m.
to 4 p.m. without overtime and that Nick Macrina told him
that he would not be able to work more than 40 hours per
week. Garcia states that in early March 1992 he was asked
by Joseph D’Amiano if he wished to work 1 hour of over-
time per day and that he did that for about 2 weeks. He
states that he also worked two Saturdays between January
and March 1992. According to Garcia, after he signed the
FLSA’s petition, Joseph D’Amiano told him and Hector
Galves that they no longer could work overtime. He ac-
knowledges however, that about 1 week after this conversa-
tion, he resumed getting overtime.
In Garcia’s case, the payroll records show that he received
overtime from January through August 1992 when the exhib-
its end. Except for February 1992, he received overtime pay
during each of those months ranging from no overtime dur-
ing some weeks to a high of $137.81 during the week ending
March 29, 1992.
Ignacio Landaverde, also on the Dauman Pallet payroll,
testified that at an unspecified time after the election, he
asked David D’Amiano how come new employees were get-
ting more hours than the more senior employees. He states
that David responded that if Landaverde wanted more hours,
207DAUMAN PALLET, INC.
30 Ignacio Landaverde was a reluctant witness as far as the General
Counsel was concerned. He initially ignored the General Counsel’s
subpoena and only testified after being compelled to do so by a Fed-
eral judge.
he should get them from the Union.30 Despite believing that
David D’Amiano said this to Landaverde, I still do not think
that the evidence was sufficient to prove that over an ex-
tended period of time, that Landaverde or anyone else was
discriminated in the apportionment of overtime.
In Landaverde’s case, the Dauman Pallet and Dauman Re-
cycling payroll records show that from January 16 until April
12, 1992, there were only a small number of hourly employ-
ees who were recorded as having worked any overtime. The
Dauman Recycling payroll records indicate that between Jan-
uary 1 and June 1992 three hourly paid employees worked
a total of 10 overtime hours during the weeks ending January
16 and March 29, 1992. The Dauman Pallet records show
that from January through March 1992, Hector Galves,
Manuel Garcia, Rodrigo Armengolt, Domitilo Sanchez, and
Pedro Sanchez were the hourly employees who worked over-
time. Usually during that period, there were two or three em-
ployees who worked overtime during any given week. Com-
mencing during the week ending April 12, 1992, Ignacio
Landaverde began working overtime on a steady basis. (In
one instance, which is atypical, Landaverde earned $742.50
in overtime pay during the week ending May 10, 1992.) In-
deed when the payroll records for both Companies were
combined in June 1992, Landaverde was one of the employ-
ees who consistently worked 7.5- to 10.5-overtime hours per
week. (Incidentally the combined records show that overtime
work picked up considerably after June 1992 insofar as the
number of employees and the amounts of overtime assigned.)
T. Miscellaneous 8(a)(1) Allegations
In addition to the above, I hereby make the following find-
ings based on testimony that I credit and which I conclude
are statements in violation of Section 8(a)(1) of the Act:
1. In November 1991 Nicholas Macrina told Manuel Gar-
cia that because he signed a union card, his wage rate would
be reduced from $7.50 to $6.50 per hour. Although this did
not happen, I view that statement as a threat of reprisal and
therefore a violation of Section 8(a)(1).
2. In December 1991, David and Joseph D’Amiano threat-
ened Ignacio Landaverde with discharge if he supported the
Union.
3. That some time in 1992, Joseph D’Amiano told
Landaverde in effect, that everyone would be out if the
Union won any rerun election.
4. On or about November 5, 1992, Robert Buglioli interro-
gated Mario Mendoza as to whether he had signed a union
card and said, in effect, that if he did, he would have to col-
lect unemployment. The latter remark is construed as a threat
of discharge.
5. In November 1992, David D’Amiano told Albino Diaz,
while the latter was engaged in picketing, that he did not
want a union and that if the employees continued to strike,
they would sell the Company.
U. The Objections
Having concluded above that the November 1, 1991 lay-
offs constituted an unfair labor practice, I sustain the Union’s
objections insofar as they rely on that conduct. This would
be, by itself, sufficient to invalidate the election. Playskool
Mfg. Co., 140 NLRB 1417, 1419 (1962); Dal-Tex Optical
Co., 137 NLRB 1782, 1786–1787 (1962); Ponn Distributing,
203 NLRB 482, 495 (1973).
V. Is a Bargaining Order Appropriate?
The Respondent obviously denies that it committed the un-
fair labor practices alleged and therefore argues that a bar-
gaining order cannot be granted. It argues alternatively that
the unfair labor practices are not sufficiently serious to war-
rant a bargaining order. It finally argues that no bargain
order should be granted because most of the allegations oc-
curred before the election; that the Union nevertheless went
ahead with the election despite the alleged misconduct; and
therefore the Union waived any right it might otherwise have
to a bargaining order.
It has been a long time since the Respondent’s third con-
tention was the law. In 1954 the Board in Aiello Dairy
Farms Co., 110 NLRB 1365 (1954), held that if a union par-
ticipated in an election after the employer had refused its re-
quest for recognition, it waived a bargaining order remedy.
Under that case, if unlawful conduct was committed before
an election, the Union’s sole remedy was to have the election
set aside and have a new election conducted. The Aiello de-
cision was overruled in 1964 by Bernel Foam Prods Co.,
146 NLRB 1277 (1964), and reverted to its pre 1954 doc-
trine. The Board stated:
[T]he so-called choice which the union is forced to
make under Aiello between going to an election or fil-
ing an 8(a)(5) charge is at best a Hobson’s choice. Al-
though an election is a relatively swift and inexpensive
way for the union to put the force of law behind its ma-
jority status, the procedure is highly uncertain entailing
the real possibility that because of conduct by the em-
ployer no fair election will be held. . . . Since this dif-
ficult and rather dubious ‘‘choice’’ is created by the
employer’s unlawful conduct, there is no warrant for
imposing upon the union which represents the employ-
ees, an irrevocable option as to the method it will pur-
sue . . . while permitting the offending party to enjoy
at the expense of public policy the fruits of such unlaw-
ful conduct.
The rule that a union does not waive any rights to a bar-
gaining order because it proceeded to an election, was con-
firmed by the Supreme Court in NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). In that decision, the Court decided
four separate cases, one of which involving a company called
General Steel. As to General Steel, the Court enforced a bar-
gaining order where a union, initially having obtained author-
ization cards from a majority of the employees, had lost an
election in which the employer’s conduct had invalidated the
election.
In NLRB v. Gissel Packing Co., supra, the Supreme Court
distinguished between three categories of situations insofar as
the propriety of granting a bargaining order to remedy an
employer’s unfair labor practices. The first category involved
the ‘‘exceptional’’ case where ‘‘outrageous’’ and ‘‘perva-
sive’’ unfair labor practices are committed. The second cat-
egory involves ‘‘less pervasive practices’’ that have a tend-
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ency to undermine majority strength and impede the election
process. As to this second category, the Court held that a
bargaining order would be proper to remedy an employer’s
unlawful conduct which had the effect of making a fair elec-
tion unlikely where at some point the union had majority
support amongst the employees. The third class of cases,
concern those where minor or less extensive unfair labor
practices have been committed which would have a ‘‘mini-
mal impact’’ on an election. The Court held that in the third
category of cases, a bargaining order would be inappropriate
to remedy an employer’s unfair labor practices.
In cases where an election has been conducted, the Board
has held that a precondition to the granting of a bargaining
order is that the election be set aside because of conduct
interfering with the conduct of the election. Irving Air Chute
Co., 149 NLRB 627 (1964); Great Atlantic & Pacific Tea
Co., 230 NLRB 766 (1977).
In my opinion all the conditions necessary to grant a bar-
gaining order have been fulfilled in this case. First, the evi-
dence established that the Union obtained authorization cards
from a majority of the bargaining unit employees. Second, I
have concluded that the Employer’s unlawful conduct inter-
fered with the election which should therefore be set aside.
Finally, it is my opinion that the conduct of this Employer
was pervasive and made a fair rerun election unlikely. In this
regard, the record shows, among other things, that the em-
ployer made threats of discharge and threats of plant closure.
Additionally, I have concluded that the Employer laid off
large groups of employees for discriminatory reasons on No-
vember 1 and December 10, 1991. I have also found that the
Employer refused to rehire strikers in a timely manner once
they made offers to return to work; that it shifted people into
jobs unfamiliar to them in the hope that some would quit be-
fore the election; and that it attempted to gerrymander the
election by either hiring temporary employees or by asserting
that people who did not work for the Company were on its
payroll and eligible to vote. By these actions, the employees
were put in fear of losing their jobs and income if they voted
for the Union. Moreover, it is clear to me that the Employer
attempted to undermine the election process itself by its ger-
rymandering actions.
I do not think that the Employer’s actions can readily be
erased by the use of traditional remedies and I believe that
the Respondent has demonstrated a willingness to interfere
with and undermine the election process. 299 Lincoln Street,
Inc., 292 NLRB 172 (1989); American Display Mfg. Co.,
259 NLRB 21 (1981). I therefore conclude that the Union is
entitled to a bargaining order pursuant to Section 8(a)(5) of
the Act.
W. The Challenges
Strictly speaking, it is not necessary for me to decide
whether or not the challenged ballots should be opened and
counted inasmuch as I have decided that the election should
be set aside and a bargaining order should issue. Neverthe-
less, with the possibility that the Board or a reviewing court
may disagree with my decision to grant a bargaining order,
I shall attempt to resolve the challenged ballots as follows:
Having already concluded that Robert Buglioli, Thomas
Kenny, and George Salerno were supervisors within the
meaning of Section 2(11) of the Act, I sustain the challenges
to their ballots.
The Company conceded and I find that certain individuals
were not eligible voters. Accordingly, I sustain the chal-
lenges to the ballots of Jack Lambly, Richard Menkin, and
Daniel Zrodsky.
I sustain the challenge to the ballot of Vincent Gatto who
left the Company in September 1991 and was rehired in July
1992. As I have concluded that he did not have a reasonable
expectation of recall at the time he left, and as he was not
employed as of the payroll eligibility date (Nov. 17, 1991),
he was not an eligible voter.
The evidence regarding James Gatto shows that he left the
Company’s employ during the week ending September 22,
1991, and the records do not show that he worked thereafter.
I therefore shall sustain the challenge to his ballot as the evi-
dence shows that he was not employed as of the eligibility
date.
William Curry, a mechanic, left the Company during the
week ending July 14, 1991, and returned briefly, on a 6-hour
per week basis, for 2 weeks in December 1991. He returned
after the payroll eligibility date and left after the election. He
did not return on a permanent basis until late January 1992.
Absent evidence that he was temporarily laid off, on a leave
of absence, on vacation, etc., I shall sustain the challenge to
his ballot as it appears that he was not an employee as of
the eligibility date.
The evidence shows that Kenneth Gilliam, a truckdriver,
left the Company during the week ending September 29,
1991, and returned during the week ending December 8,
1991. As in the case of Curry, there was no evidence to es-
tablish that the hiatus in his employment was intended to be
temporary in nature and therefore I shall sustain the chal-
lenge to his ballot because he was not employed as of the
eligibility date.
Maurice Murchison left the Company during the week
ending May 2, 1991. The evidence shows that he was rehired
during the week ending November 17, 1991, and worked
only until the election was over. (Dec. 13, 1991.) In my
opinion Maurice Murchison was rehired as a temporary em-
ployee and the duration of his employment was meant to co-
incide with the election eligibility date and the day of the
election. I therefore shall sustain the challenge to his ballot.
The evidence concerning Owen Sharkey is essentially the
same as that for Maurice Murchison. Owen Sharkey left the
Company during the week ending October 6, 1991, and re-
turned to work as a part-time employee for the period from
the week ending December 1, until the week ending Decem-
ber 15, 1991. The records do not indicate that he ever
worked again and I conclude that if he was employed on
both the eligibility date and the day of the election, his em-
ployment during that time was temporary in nature. I there-
fore shall sustain the challenge to his ballot.
Michael Murray left the Company during the week ending
October 20, 1991, and reappeared on the payroll records for
a total of 17.5 hours during the week ending December 15,
1991. The records indicate that he left after the election and
was not rehired until the week ending March 1, 1992. His
brief appearance on the payroll record during a single week
in December 1991, does not indicate to me that his leaving
in October 1991 was not intended to be permanent. As he
was not employed on the eligibility date, I shall sustain the
challenge to his ballot.
209DAUMAN PALLET, INC.
Martin Duffy was first employed by the Company in June
1990. He left the Company before the election because he
was confined to a drug rehabilitation program for an indefi-
nite period. He never returned to work, at least not up to the
time that the hearing in this case closed. In all the cir-
cumstances, it is my opinion, that Duffy was not, as of the
eligibility date, an employee who had a reasonable expecta-
tion of recall. I therefore shall sustain the challenge to his
ballot.
The payroll records indicate that Michael Cimilluca was
hired on October 2, 1991, and worked during the week of
the election. The Dauman Recycling payroll records show
that he worked during the week ending November 17, 1992,
but did not work during the weeks ending November 24, De-
cember 1, and December 8, 1991. He worked almost 30
hours during the week ending December 15, 1991, but did
not work during the next 2 weeks. Thereafter he worked
until February 9, 1992. There is to my mind some ambiguity
as to whether Cimilluca was an employee during the relevant
period of time. Nevertheless, as he was employed on the eli-
gibility date, was working during the week of the election
and did work during January 1992, it seems to me that the
burden should be on the Union to establish that his employ-
ment had terminated during any portion of that time. As this
was not done, I conclude that the challenge to Cimilluca’s
ballot should be overruled.
Lee Roy Holmes and Daniel Smith were non clerical and
nonsupervisory employees who were employed as of the eli-
gibility date and the date of the election. There was no evi-
dence to support the Union’s assertion that Smith was a
guard. I therefore conclude that both were eligible voters and
that the challenges to their ballots should be overruled.
I have already concluded that Anthony Salerno, Michael
Becker, and Sacramento Rojas were not supervisors as con-
tended by the Union. Also as the evidence shows that they
were employed as of the eligibility and election dates, I con-
clude that the challenges to their ballots should be overruled.
CONCLUSIONS OF LAW
1. The Respondent, Dauman Pallet, Inc., Dauman Recy-
cling, Inc. and Dauman Industries, are a single employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union, Plastic, Metal, Trucking, Warehouse and
Allied Workers Union, Local 132-98-102, International La-
dies Garment Workers’ Union, AFL–CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, including
employees employed by the Company at Pathmark
(Woodbridge, New Jersey) and Rickel’s (South Plainfield,
New Jersey) but excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as defined in
the Act constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act.
4. Since November 1, 1991, the Union has been and is the
exclusive representative of all employees in the aforesaid ap-
propriate unit for the purposes of collective bargaining with
the meaning of Section 9(a) of the Act.
5. Since November 1, 1991, the Respondent has refused
and is refusing to bargain collectively with the Union and
thereby has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act.
6. The Respondent violated Section 8(a)(1) and (3) of the
Act by laying off 25 employees on November 1, 1991.
7. The Respondent violated Section 8(a)(1) and (3) by de-
laying the recall of unfair labor practice strikers upon their
unconditional offers to return to work.
8. The Respondent violated Section 8(a)(1) and (3) of the
Act by discharging employees Avelardo Murillo and Efrain
Camacena.
9. The Respondent violated Section 8(a)(1) and (3) of the
Act by laying off 15 employees on December 10, 1991.
10. The Respondent violated Section 8(a)(1) and (3) of the
Act by issuing disciplinary warnings to Cuenca, Vasquez,
and Ramblas.
11. The Respondent violated Section 8(a)(1) and (3) of the
Act by reducing the piece rates for pallet repair of the em-
ployees assigned to work at Pathmark.
12. The Respondent violated Section 8(a)(1) and (3) of the
Act by refusing to recall or rehire employees Rodrigo
Armengolt in late November or early December 1991; Isidro
Ramblas on March 29, 1992; and Acasio Galindo in April
1992.
13. The Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Mario Mendoza on April 28, 1992.
14. The Respondent violated Section 8(a)(1) and (3) of the
Act by refusing to recall Lucio Ortiz in August 1992.
15. The Respondent violated Section 8(a)(1) and (3) of the
Act by transferring strikers and union supporters to Pathmark
in November and December 1991.
16. The Respondent violated Section 8(a)(1) of the Act by
offering increased wages to Nehemias Alverado and Ignacio
Landaverde on or about November 7, 1991.
17. The Respondent violated Section 8(a)(1) of the Act by
threatening to reduce the wage rate of Manuel Garcia be-
cause he signed a union card.
18. The Respondent violated Section 8(a)(1) of the Act by
threatening Ignacio Landaverde with discharge if he sup-
ported the Union.
19. The Respondent violated Section 8(a)(1) of the Act by
impliedly threatening employees with discharge if the Union
won any rerun election.
20. The Respondent violated Section 8(a)(1) of the Act by
interrogating Mario Mendoza as to whether he had signed a
union card and by implying that he would be discharged if
he did.
21. The Respondent violated Section 8(a)(1) of the Act by
telling Albino Diaz, while the latter was engaged in pick-
eting, that the Company did not want a union and that if the
employees continued to strike the Company would be sold.
22. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
23. The Respondent has not committed any other unfair
labor practices alleged in the complaint.
23. The Union’s objections to the election are sustained to
the extent that they allege Respondent’s conduct occurring
between the filing of the petition (Oct. 21, 1991), and the
holding of the election (Dec. 13, 1991), which I have con-
cluded were unfair labor practices.
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 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.
32 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.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged, laid
off, refused to recall or rehire employees, it must offer them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
Additionally, as the Respondent for discriminatory reasons,
has transferred certain employees from their pre November
1, 1991 jobs, I shall recommend that it offer to reinstate
them to those jobs. If it can be shown that their earnings
would have been higher in their old jobs than in the jobs to
which they were illegally transferred, the Respondent should
make them whole, with interest, from the date of transfer
until to the date they are offered reassignment in the same
manner as prescribed above.
For the reasons stated above, I shall recommend that the
Respondent be ordered to bargain with the Union upon re-
quest.
The General Counsel seeks a broad visitorial clause in
these cases. In 299 Lincoln Street, Inc., 292 NLRB at 175,
the Board declined to grant a broad visitatorial clause as part
of the remedy and stated that it would not do so unless ‘‘the
equities demonstrate a likelihood that a respondent will fail
to cooperate or otherwise attempt to evade compliance.’’ In
the present case, although I have concluded that the Re-
spondent has violated the Act in numerous and serious ways,
it has not been demonstrated to me (for example by failing
to comply with subpoenas served on it) that there is a prob-
ability that the Respondent would seek to evade any compli-
ance investigation that may subsequently take place. How-
ever, as there may be some difficulties in ascertaining time
and wages worked by employees, it is ordered that the Re-
spondent specifically retain, in addition to weekly payroll
records, all individual timecards for all employees who are
employed by the Respondent until compliance in these case
are completed. (The retention of timecards is part of the rou-
tine order granted in these types of cases and I only wish
to emphasize it herein.)
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended31
ORDER
The Respondent, Dauman Pallet, Inc., Dauman Recycling,
Inc. and Dauman Industries, a Single Employer, and Joseph
D’Amiano and David D’Amiano, Individually Carteret, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Plastic, Metal,
Trucking, Warehouse and Allied Workers Union, Local 132-
98-102, International Ladies Garment Workers’ Union, AFL–
CIO as the exclusive bargaining representative of all the Re-
spondent’s employees in the appropriate unit.
(b) Discharging, laying off, refusing to recall or rehire,
transferring or otherwise disciplining employees because of
their activities or support for the Union.
(c) Reducing or threatening to reduce the wage rates or
piece rates of its employees because of their union activities.
(d) Offering or promising increased benefits and wages in
order to induce its employees to refrain from supporting the
Union or engaging in protected concerted activities.
(e) Threatening employees with discharge or the sale of its
business, on account of their union activities or if the Union
were to win an election.
(f) Coercively interrogating and otherwise intimidating its
employees with regard to their union activity.
(g) 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, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All production and maintenance employees, including
employees employed by the company at Pathmark
(Woodbridge, New Jersey) and Rickel’s (South Plain-
field, New Jersey) but excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in Section 2(11) of the Act.
(b) Offer all employees who have been found to have been
illegally discharged, refused recall or rehire, or transferred,
immediate and full reinstatement to their former jobs or, if
those job no longer exist, to substantially equivalent posi-
tions, 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 the decision.
(c) Remove from its files any reference to the unlawful
discharges, lay offs, warning notices or any other adverse ac-
tions which I have concluded to be unlawful herein and no-
tify the employees in writing that this has been done and that
these actions will not be used against them in any way.
(d) 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.
(e) Post at its facilities in New Jersey copies of the at-
tached notice marked ‘‘Appendix.’’32 Copies of the notice,
on forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized representa-
211DAUMAN PALLET, INC.
1 Payroll records were brought into the Regional Office on June
1, 1992, and remained there through June 5. The Respondent was
allowed to take back the payroll records while the case was ad-
journed to July 14, 1992, on the condition that they be made avail-
able, during the interregnum, to the General Counsel and to the
Union’s counsel at their request.
2 In the subpoena the dates are October 15 to December 1, 1991.
This clearly is a typographical error and it is understood by all that
the relevant period is in 1991 as the documents are related to alleged
transactions that occurred on or about November 7, 1991, which in-
volved the use of a conference call by David D’Amiano to two em-
ployees and the use of a cellular phone from a Diner.
3 The first amended consolidated complaint alleges at par. 41:
41. (a) At all times material herein, Joseph D’Amiano an indi-
vidual, has been president of Dauman Pallet, Inc., and has for-
mulated, implemented, and administered all labor relations poli-
cies affecting its employees.
(b) At all times material herein, David D’Amiano, an indi-
vidual has been president of Dauman Recycling, Inc., and has
formulated, implemented, and administered all labor relations
policies affecting its employees.
(c) At all times material herein, Joseph D’Amiano and David
D’Amiano have been solely responsible for and made all deci-
sions concerning all financial, business and other affairs of Re-
spondent.
(d) On various dates unknown to the General Counsel but par-
ticularly within the knowledge of Respondent, Joseph D’Amiano
and David D’Amiano intermingled their personal assets and af-
fairs with those of Respondent.
(e) By virtue of the acts and conduct described above in para-
graphs 41(a) (b) (c) and (d) Dauman Pallet, Inc. and Dauman
Recycling Inc., and Joseph D’Amiano and David D’Amiano in-
dividuals are and have been at all times material herein, alter
egos and a single employer with the meaning of the Act.
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the Union’s objections to the
election be sustained as described above and that the election
held on December 13, 1991, in Case 22–RC–10545 be set
aside.
APPENDIX A
ORDER
Both the General Counsel and the Union served subpoenas
upon the above named Companies and upon their principal
owners, Joseph and David D’Amiano, to appear at the hear-
ing and to produce certain documents. (Copies attached here-
to.) [Omitted from publication.]
On May 26, 1992, the Respondents filed a Motion to Re-
voke the Subpoenas.
On June 1, 1992, at the opening of the hearing, the Re-
spondent’s counsel modified his position and indicated that
he was complying with both the Union’s subpoena (which
asked for payroll records for bargaining unit employees for
the period from June 1, 1991, through Mar. 31, 1992) and
items 11 through 16 of the General Counsel’s subpoena ad-
dressed to the companies. As to item 17 of that subpoena,
Respondent’s counsel asserted that no such documents ex-
isted apart from attorney client communications, which all
agreed were not disclosable.1
The Respondent also does not oppose the subpoena issued
to the D’Amiano’s insofar as they require them to produce
records of charges to all personal telephone lines including
charges to cellular phones and calling cards made during the
period October 15 to December 1, 1991.2 They also do not
oppose production of records relating to certain properties
owned by David D’Amiano located at 55 New Street and
387 School Street, Woodbridge, New Jersey.
The other documents sought by the General Counsel in the
foregoing subpoenas all relate to the contention that Joseph
and David D’Amiano should be held to be personally liable
notwithstanding the operation of their business through a
closely held corporation. In short, the General Counsel seeks
to ‘‘pierce the corporate veil,’’ so that the owners will be re-
sponsible individually for any moneys owed if there is a
finding of liability and if the corporations are unable to pay.3
The Respondent contends that the General Counsel should
not be entitled to this material because the documents are not
relevant to any legitimate issue in the case. It argues that at
the least, the General Counsel should be required to first
make an offer of proof of any independent information that
it might have to show some basis for the contention that the
D’Amianos should be held personally liable. (In essence, the
Respondent argues that the General Counsel has made this
allegation without any reasonable justification and is seeking,
through the use of a subpoena, to bootstrap itself, on the
hope that they will discover something in these records.)
Alternatively, it argues that the subpoenaed documents re-
late to a matter which more appropriately should be dealt
with at the compliance stage of this proceeding in the event
that the General Counsel wins on the merits. It therefore con-
tends that the production of these documents should be post-
poned until compliance. The Respondent also contends that
even if relevant and timely, the documents subpoenaed,
which require production of both corporate and personal fi-
nancial information over an extended period of time, are con-
fidential and therefore require a protective order pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure.
In my opinion the documents subpoenaed are relevant to
an issue in the case, namely the allegation that the
D’Amianos should be held personally liable because of an
intermingling of personnel and corporate assets. In Riley
Aeronautic Corp., 178 NLRB 495 (1969), the Board stated
at 501:
‘‘[E]asily the most distinctive attribute of the cor-
poration is its existence in the eye of the law as a legal
entity and artificial personality distinct and separate
from the stockholders and officers who compose it.’’
Wormser, Disregard of the corporation Fiction and Al-
lied Corporation Problems (Baker, Voorhis and Com-
pany, 1927), p. 11. ‘‘The insulation of a stockholder
from the debts and obligations of his corporation is the
norm, not the exception.’’ N.L.R.B. Deena Artware,
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 There seems to be two separate theories upon which personal li-
ability can be asserted despite the existence of a corporate entity. In
one, where there is evidence that the principal stockholder has so
intermingled his own assets with those of the corporation, it may be
said that he has waived any rights he might otherwise have to utilize
the corporate form to insulate himself from personal liability. In such
cases, the Board has said that the individual is the ‘‘alter ego’’ of
the corporation. See for example Campo Slacks, 266 NLRB 492 fn.
1 and 500 at fn. 18.
The second theory is one in which the corporate veil is pierced
because there is evidence that the owner or owners have acted or
intend to take actions to avoid liability. Thus in Workroom for De-
signers, 274 NLRB 840 (1985), Sissleman, the company’s single
shareholder and officer had committed most of the ‘‘numerous and
egregious’’ unfair labor practices. The Board stated that; ‘‘The most
important factor in our resolution on this issue, however, is
Sissleman’s admission at the hearing that he planned to avoid any
liability for backpay.’’
There are also cases where both elements are present and both
used to justify a finding of individual liability. See for example Air
Vac Industries, 282 NLRB 703 (1987).
5 Thus far in the hearing the General Counsel has offered some
evidence that employees of the company rented apartments owned
by David D’Amiano and had their rent payments deducted from
their earnings. There also was some evidence that similar payroll de-
ductions were used when employees purchased vehicles owned by
members of the D’Amiano family. In addition, one witness,
Nehemias Alvarado, testified that on or about November 14, 1991,
Joseph D’Amiano told him that he was advised by his lawyer that
if the Union won the election, he could sell or close the business
and open it again under a new name.
6 I also note that on June 2, 1992, the Regional Director filed a
10(j) petition relating to this same case in the Federal District Court.
7 I recognize that the complaint also alleges that certain employees
had their earning reduced for discriminatory reasons. Nevertheless,
it would seem that unlike a discharge case, those allegations will
likely result, even if proven, in a much reduced amount of backpay.
Inc., 361 U.S. 398, 402–403. Nevertheless, the cor-
porate veil will be pierced whenever it is employed to
perpetrate fraud, evade existing obligations, or cir-
cumvent a statute. Isaac Schrieber, et al., individually,
and Allen Hat Co., 26 NLRB 937, 964 enfd. 116 F.2d
(C.A. 8). Thus, in the field of labor relations the courts
and Board have looked beyond organizational form
where an individual or corporate employer was no more
than an alter ego or a ‘‘disguised continuance of the old
employer.’’ (Southport Petroleum Co. v. N.L.R.B. 315
U.S. 100, 106); or was in active conduct or participa-
tion in a scheme or plan of evasion. (N.L.R.B v. Hop-
wood Retinning Co., 104 F.2d 302, 304 (C.A. 2); or si-
phoned off assets for the purpose of rendering insolvent
and frustrating a monetary obligation such as backpay
(N.L.R.B. v Deena Artware, Inc., supra . . . or so inte-
grated or intermingled his assets and affairs that ‘‘no
distinct corporate lines are maintained.’’4
In Brink’s Inc., 281 NLRB 468 (1986), the Board stated
that the Section 102.66(2) permits a hearing officer to revoke
a subpoena:
[I]f, in his opinion, the evidence whose production is
required does not relate to any matter under investiga-
tion or in question of the proceedings, or the subpoena
does not describe with sufficient particularity the evi-
dence whose production is required, or if for any other
reason sufficient in law the subpoena is otherwise in-
valid.
It is also my opinion, that the documents sought from the
corporations and their owners are not privileged; do not con-
stitute trade secrets such as formulas, patents, etc.; and do
not comprise confidential commercial information such as
customer lists, etc. To the extent that the Respondent might
have a legitimate interest in nondisclosure, that interest, in
my opinion, would be outweighed by the relevancy of the
documents to the issues in this proceeding.
Nor do think that the case law requires that the General
Counsel first make an independent showing that it has evi-
dence supporting the allegation, before being allowed to sub-
poena records of the Respondents. Storkline v. NLRB, 298
F.2d 276 (5th Cir. 1962).5 If the allegation was made without
substantial justification, the Respondent will win on the
issue, and if it is a qualified prevailing party it may seek at-
torney fees under the Equal Access to Justice Act.
Respondents request a protective order and such an order
may be appropriate where relevant confidential information
is subpoenaed. Brink’s Inc., supra at 469 fn. 5. In this re-
spect, The Federal Rules of Civil Procedure at Section 26(c)
provide inter alia that a court:
[F]or good cause shown . . . may make any order
which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden
or expense, including one or more of the following: (1)
that the discovery not be had; (2) that the discovery
may be had only on specified terms and conditions . . .
(3) that the discovery may be had only by a method of
discovery other than that selected by the party seeking
discovery; (4) that certain matters not be inquired into
. . . (5) that discovery be conducted with no one
present except persons designated by the court; (6) that
a deposition after being sealed be opened only by order
of the court; (7) that a trade secret or other confidential
research, development, or commercial information not
be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified docu-
ments or information enclosed in sealed envelopes to be
opened as directed by the court.
The Respondent asserts quite correctly that the issue of
personal liability could be reserved to the compliance stage
of the proceeding. Air Vac Industries, supra; Workroom for
Designers, 274 NLRB at 841 fn. 8. It argues that the issue
of personal liability has practical consequence only if the Re-
spondent loses the case on the merits and if the net backpay
owed cannot be paid by the corporations. Inasmuch as this
trial will take at least 15 to 25 days of hearings, the Re-
spondent argues that as a matter of efficient casehandling
(and so as not to bankrupt his client), it would make far
more sense to defer this issue to compliance.6 I also note that
on June 2, 1992, the Regional Director filed a 10(j) petition
relating to this same case in the Federal District Court. I tend
to agree, particularly as most of the employees who were
laid off have been reinstated (except for three).7
There is no question but that it is within the discretion of
the General Counsel to litigate this issue during the initial
phase of the unfair labor practice proceedings. That does not
213DAUMAN PALLET, INC.
mean, however, that I cannot exercise discretion and defer
this issue to the compliance stage if that would result in a
more efficient litigation; not prejudicial to any of the parties.
In Cale v. Outboard Marine Corp., 48 F.R.D. 328 (D.C.
Wis. 1969), the court postponed discovery on damages until
the issue of liability had been resolved in a bifurcated pro-
ceeding. Similarly, in Polaroid Corp. v Commerce Inter-
national Co., 20 F.R.D. 394 (D.C. N.Y. 1957), the court
issued an order limiting the scope of pretrial discovery in a
patent suit where the issues of liability and damages were to
be tried separately. See generally Wright and Miller, Federal
Practice and Procedure, Vol. 8, Section 2040.
Unfair labor practice proceedings before the Board are bi-
furcated as to the issues of liability and backpay. This there-
fore is analogous to the cases cited above where Federal Dis-
trict Court judges have delayed discovery until after the issue
of liability was decided. Those decision are based on a
judgement as to how to administer the conduct of a trial in
the most efficient manner possible without prejudicing the
rights of the parties.
In my opinion, the records and documents subpoenaed are
relevant to the proceeding and should, if necessary, be turned
over to the General Counsel for inspection and copying. Fur-
ther at the time of disclosure, I will not impose any restric-
tions on the General Counsel’s use of the documents or on
her ability to consult with the Charging Party and its counsel.
I will not, however, require that these documents be turned
over during the liability portion of this proceeding as this
would unduly burden what is already a difficult, lengthy and
complex case. Rather, it is my opinion that the issue of indi-
vidual liability would be more efficiently handled during the
compliance stage of this proceeding if one is required.
In making this ruling, it should be noted that I am not re-
voking the subpoenas. Accordingly, the Respondents shall be
required to maintain and preserve any and all of the records
which they presently have in their possession and which cov-
ered by the subpoenas. Further they shall be required to pre-
serve and maintain for inspection and copying by the General
Counsel, any similar or like records or documents that may
be generated, sent or received in the future.
APPENDIX B
ORDER
On November 8, 1992, after the close of the hearing, the
General Counsel filed a Motion to Admit Documents, which
in effect, is construed by me as a Motion to Reopen the
Record to receive new evidence. The Respondent objected.
The new evidence sought to be adduced are photographs
and the testimony of a fire department official purporting to
show that the Respondent continued to use a large machine
called the Montgomery Grinder after November 1, 1991, at
its worksite in Woodbridge, New Jersey. This is important
because the Respondent contended that one of the reasons it
laid off a group of employees on November 1, 1991, was be-
cause the Montgomery Grinder ceased operating at that time.
There is no question but that the proposed evidence would
be relevant to this proceeding. On the other hand, there is
no basis for asserting that this evidence was newly discov-
ered, was only available since the close of the hearing or
could not have been obtained by the General Counsel with
due diligence.
The photographs in question were allegedly taken in No-
vember 1991, almost a year before the hearing in this case
concluded. They were taken by a public official and there is
no reason to believe that the fire department of Woodbridge
would not have been cooperative had the General Counsel
sought information from them. It was known by all parties
to this proceeding from the day that this hearing opened, that
the Respondent was contending that the layoffs on November
1, 1991, were caused at least in part, by its assertion that it
was forced by the fire department to move from Woodbridge
to Carteret and that the timing of the layoffs was principally
caused by the shutdown of the Montgomery Grinder. Indeed,
as part of its direct case, the General Counsel produced em-
ployee witnesses who testified that they observed or heard
the Montgomery Grinder in operation after November 1,
1991.
Section 102.48(d)(1) of the Board’s Rules and Regulations
states in pertinent part:
A motion to reopen the record shall state briefly the ad-
ditional evidence sought to be adduced, why it was not
presented previously, and that, if adduced and credited,
it would require different result. Only newly discovered
evidence, evidence which has become available only
since the close of the hearing, or evidence which the
Board believes should have been taken at the hearing
will be taken at any further hearing.
In my opinion, the position of the General Counsel does
not satisfy the requirements of the aforesaid rule or of the
case law interpreting that rule. Field Bridge Associatess, 306
NLRB 322 fn. 1 (1992), and cases cited therein.
At the close of the hearing, I made arrangements for the
parties to review certain company records and the records of
a certain doctor. These records had been subpoenaed by the
parties during the course of the hearing, and it was agreed
that the parties could introduce, after the close of the hearing,
all or some of these documents (or summaries thereof), by
way of stipulation, or if necessary, that I would reopen the
record for the limited purpose of receiving evidence in rela-
tion to those records. That arrangement, which dealt with
evidence identified and available to both parties during the
course of the hearing, does not, in my opinion, justify re-
opening this record for the purpose of receiving an entirely
new category of evidence which was not identified by the
parties during the course of the hearing.
APPENDIX C
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
214 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 bargain collectively with Plastic,
Metal, Trucking, Warehouse and Allied Workers Union,
Local 132-98-102, International Ladies Garment Workers’
Union, AFL–CIO as the exclusive bargaining representative
of our employees in the appropriate unit.
WE WILL NOT discharge, layoff, refuse to recall or rehire,
transfer or otherwise discipline our employees because of
their activities or support for the Union.
WE WILL NOT reduce or threaten to reduce the wage rates
or piece rates of our employees because of their union activi-
ties.
WE WILL NOT offer or promise increased benefits and
wages in order to induce our employees to refrain from sup-
porting the Union or engaging in protected concerted activi-
ties.
WE WILL NOT threaten our employees with discharge or
the sale of our business, on account of their union activities
or if the Union were to win an election.
WE WILL NOT coercively interrogate or otherwise intimi-
date our employees with regard to their union activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL on request, bargain with the Union as the exclu-
sive representative of the employees in the following appro-
priate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All production and maintenance employees, including
employees employed by the company at Pathmark
(Woodbridge, New Jersey) and Rickel’s (South Plain-
field, New Jersey) but excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in Section 2(11) of the Act.
WE WILL offer all employees who have been found to
have been illegally discharged, refused recall or rehire, or
transferred, immediate and full reinstatement to their former
jobs or, if those job no longer exist, to substantially equiva-
lent 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.
WE WILL remove from our files any reference to the un-
lawful discharges, layoffs, warnings or any other adverse ac-
tions which have been found to have been unlawful and no-
tify the employees, in writing, that this has been done and
that these actions will not be used against them in any way.
DAUMAN PALLET, INC., DAUMAN RECYCLING,
INC., AND DAUMAN INDUSTRIES, A SINGLE
EMPLOYER, AND JOSEPH D’AMIANO AND
DAVID D’AMIANO, INDIVIDUALLY