Grand Central Partnership

National Labor Relations Board - Board Decisions

Mar 24, 1999

327 N.L.R.B. 966 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966
Grand Central Partnership and Local 210, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Cases 2–CA–28910, 2–CA–28964, 2–CA–29054,
and 2–CA–29826
March 24, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On December 12, 1997, Administrative Law Judge
Steven Fish issued the attached decision.1 The Respon-
dent filed exceptions, a supporting brief, and a reply
brief, and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.3
We adopt, with one exception, the judge’s decision
finding violations of Section 8(a)(1), (3), and (4) of the
Act.4 The judge found that certain statements made by
William Chabot, the Respondent’s chief of sanitation,
during an employee meeting held on November 8, 1995,
violated Section 8(a)(1) on two separate theories. In the
judge’s view, Chabot’s comments (1) imply that it was
futile for employees to support the Union and (2) consti-
tute an unlawful promise of benefits if they reject union
representation. We adopt only the judge’s unlawful
promise theory.
The credited evidence shows that Chabot told employ-
ees that he knew that they were circulating a petition to
get a union, and that he did not think the Union would be
a good idea for the employees to have at that moment.
Chabot further said that the employees should give the
Respondent some time and see what the Union achieved
in bargaining for sanitation employees at another facility,
the 34th Street Partnership. Chabot told them that what-
ever the Union got at 34th Street, the employees would
also get because the Respondent and the 34th Street
Partnership were one company.5

1 On December 31, 1997, the judge issued an erratum correcting and
replacing his earlier decision dated December 12, 1997.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container Inc., 325 NLRB (1997).
4 Chairman Truesdale would reverse the judge’s finding that the Re-
spondent violated Sec. 8(a)(4) by opposing Mieses’ unemployment
compensation claim. The record shows that, while the Respondent
gave its asserted reason for Mieses’ discharge in response to an inquiry
from the state department of labor (DOL), it did not contest the unem-
ployment compensation claim. Although the Respondent referred to
Mieses’ NLRB charge in responding to Mieses’ query about why it had
responded to the DOL inquiry the way it did, that reference does not
necessarily establish a retaliatory motive. Rather, the Respondent may
have simply been indicating that its response to the DOL claim would
have to be consistent with its response to the NLRB charge.
We find that Chabot’s statements do not expressly or
implicitly threaten that it would be useless to vote for the
Union. Thus, the instant situation is factually distin-
guishable from Hertz Corp., 316 NLRB 672, 686 (1995),
Heartland of Lansing Nursing Home, 307 NLRB 152,
158 (1992), E.I. Dupont De Nemours, 263 NLRB 159,
165 (1982), and Electric Hose & Rubber Co., 262 NLRB
186, 215 (1982), the cases cited in sec. III,A, par. 4 of the
judge’s decision. There, the employers had instilled a
sense of futility of union representation by indicating that
their employees would receive no better benefits with
union representation or they would be restricted to the
terms and conditions of employment in existence at other
nonunion facilities.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Grand Central Partnership, New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge, layoff,
subcontracting, or other loss of employment because of
their support for Local 210, International Brotherhood of
Teamsters, AFL–CIO, and/or if they become represented
by the Union.
(b) Promising its employees benefits and improve-
ments in their terms and conditions of employment if
they withdraw their support for the Union and/or if they
do not select the Union as their collective-bargaining
representative.
(c) Discharging or refusing to reinstate its employees
because of their activities on behalf of or support for the
Union, and/or because they give testimony at a National
Labor Relations Board hearing.
(d) Contesting its employees’ unemployment insurance
benefits because a charge was filed on their behalf with
the National Labor Relations Board and/or because of
their participation in a National Labor Relations Board
proceeding.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
5 Chabot himself admitted that he told employees that they should
wait and see what the Union gained at 34th Street, and see if they got
the same benefits, and that they could get a Union in the future, if they
felt that they were not treated on an equal level with 34th Street.
327 NLRB No. 172
GRAND CENTRAL PARTNERSHIP 967
(a) Within 14 days from the date of this Order, offer
Paco Mieses full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Paco Mieses whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Paco Mieses and within 3 days thereafter notify him in
writing that this has been done and that the discharge will
not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its New York, New York office, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained by it 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 al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in this proceeding, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November 8,
1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
(g) IT IS FURTHER ORDERED that all violations al-
leged in the complaint but not found are dismissed.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading, “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this Notice.

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
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten our employees with dis-
charge, layoff, subcontracting, or other loss of employ-
ment because of their support for Local 210, Interna-
tional Brotherhood of Teamsters, AFL–CIO and/or if
they become represented by the Union.
WE WILL NOT promise our employees benefits and
improvements in their terms and conditions of employ-
ment if they withdraw their support for the Union and/or
if they do not select the Union as their collective-
bargaining representative.
WE WILL NOT discharge or refuse to reinstate our
employees because of their activities on behalf of or sup-
port for the Union and/or because they give testimony at
a National Labor Relations Board hearing.
WE WILL NOT contest our employees’ unemploy-
ment insurance benefits because a charge was filed on
their behalf at the National Labor Relations Board and/or
because of their participation in a National Labor Rela-
tions Board proceeding.
WE WILL NOT in any like or related manner, inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Paco Mieses full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Paco Mieses whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Paco Mieses, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the discharge will not be used
against him in any way.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 968
GRAND CENTRAL PARTNERSHIP

Suzanne K. Sullivan, Esq., for the General Counsel.
Richard A. Levin, Esq. (Proskauer, Rose, Goetz & Mendelsohn,
L.L.P.), of New York, New York, for the Respondent.
Ira Sturm, Esq. (Manning, Saab, Dealy & Storm), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges filed by Local 210, International Brotherhood of Team-
sters, AFL–CIO (the Union or Local 210) in Case 2–CA–
28910, 2–CA–28964, and 2–CA–29054, the Regional Director
for Region 2 issued a consolidated complaint and notice of
hearing on June 28, 1996,1 alleging that Grand Central Partner-
ship (Respondent) violated Section 8(a)(1) of the Act.
Meanwhile, the Union had filed a petition for an election in
Case 2–RC–21622, resulting in an election conducted on Janu-
ary 26, 1996. Thereafter the Union filed timely objections to
the conduct of the election, which allege essentially the same
conduct included in the unfair labor practice complaint. On
August 16, the Region issued a notice of hearing on objections
and order consolidating the representation and unfair labor
practice cases for hearing before me.
On October 28, a trial was held before me with respect to the
above matters in New York, New York.
On December 13, the Regional Director issued a complaint
and notice of hearing in Case 2–CA–29826, alleging in sub-
stance that Respondent discharged its employee Paco Mieses,
because he gave testimony at the hearing, as well as because of
activities on behalf of the Union. The General Counsel simul-
taneously filed a motion to reopen the record and to consolidate
Case 2–CA–29826 with the prior cases, which motion was
subsequently granted by me on January 6, 1997.
On January 30, 1997, based on request by the Union to with-
draw its objections, the General Counsel filed a motion to sever
the representation case from the unfair labor practice cases. I
granted the motion on February 11, 1997, and remanded the
representation case to the Regional Director for further process-
ing.
On March 20, 1997, the trial continued and testimony was
taken concerning the discharge of Paco Mieses. On March 27,
1997, the General Counsel filed a motion to amend the com-
plaint to allege that Respondent violated the Act by contesting
the unemployment insurance claim of Mieses. I granted the
motion to amend, over the objection of Respondent, by Order
dated April 9, 1997.
Additional evidence and testimony was presented at the re-
sumption of the trial, which was closed on May 1, 1997.
Briefs have been filed by the General Counsel and Respon-
dent, and have been carefully considered. Based on the entire
record I make the following,2

1 All dates hereinafter are in 1996, unless otherwise indicated.
2 While every apparent or nonapparent conflict in the evidence may
not have been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying and my evaluation of the reliability of their
testimony. Therefore, any testimony in the record which is inconsistent
with my findings is discredited.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a not-for-profit corporation, with an office and
place of business in New York, New York (Respondent’s facil-
ity), where it is and has been engaged in the operation of busi-
ness improvement district (BID), including the provision of
sanitation and security services to retail and wholesale busi-
nesses which are directly engaged in interstate commerce.
Annually, Respondent receives revenues in excess of
$50,000 from businesses which are directly engaged in inter-
state commerce.
It is admitted and I so find that Respondent is and has been
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
It is also admitted and I so find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. BACKGROUND
As noted, Respondent is a nonprofit BID which provides
services, including sanitation and security services to the busi-
nesses located in an area which surrounds Grand Central station
in mid-Manhattan.
Respondent’s president is Daniel Biederman, who is also the
president of two other BID’s, the 34th Street partnership (34th
Street) and the Bryant Park Restoration Corp. Thomas Galla-
gher is the vice president of Respondent in charge of sanitation,
and holds similar positions at 34th Street and Bryant Park.
William Chabot is the Chief of Sanitation for Respondent,
with four supervisors under him, Jesus Cruz, Paul Gallagher,
Wade Ferguson, and Paul Rojas, none of whom have any
responsibility with respect to the other BID’s. The sanitation
operation at Respondent consists of approximately 55 employ-
ees who perform functions of sweeping the streets and graffiti
removal and related tasks.
In September 1995, the Union filed a petition to represent the
sanitation employees employed at 34th Street. The Union was
subsequently certified as the collective-bargaining representa-
tive of the sanitation employees. The record is unclear as to
whether bargaining had commenced between 34th Street and
the Union, at the time of Respondent’s allegedly unlawful
statements to employees in November 1995 and January 1996.
Respondent’s budget process was described in the testimony
of Biederman. According to Biederman, the budget is deter-
mined by its board of directors, which after recommendations
from the staff, a public hearing, and a report from the finance
committee of the board decides at a meeting in April on the
budget, effective July 1.
The majority of Respondent’s revenues comes from assess-
ments on the individual office buildings in the area, which are
paid to the city and in turn sent by the city to Respondent.
Once the budget is fixed, according to Biederman it cannot be
changed. Theonly way to raise additional revenues by Respon-
dent, would be to either do added fund raising or run a budget
deficit beyond the level allocated by the board.
III. ALLEGED 8(a)(1) VIOLATIONS
A. William Chabot
On or about November 8, 1995, Chabot conducted a meeting
of employees during lunchtime at its facility located on Park
Avenue and 42d Street. During the course of this meeting,
which also covered some work-related matters, Chabot brought
GRAND CENTRAL PARTNERSHIP 969
up the subject of the Union. He informed the employees that he
knew that they were circulating a petition to get a union, and
that he did not think the Union would be a good idea for the
employees to have at that moment.
Chabot added that the employees should give Respondent
some time and see what the Union achieves in bargaining at
34th Street. Chabot also stated that whatever the Union gets at
34th Street, the employees of Respondent would also get, since
Respondent and 34th Street were one company.
The above description of the meeting is based on a compila-
tion of the credited testimony of Mieses,employees Edward
Martinez, Sean Dancy, Orlando Ortiz, and Chabot. The testi-
mony of the four employees was essentially mutually corrobo-
rative and I have credited same over Chabot’s assertions where
there is a dispute. I note that even Chabot concedes that he told
employees (albeit in answer to a question) that they should wait
and see what the Union gains at 34th Street, and see if they get
the same benefits, and that they could get a union in the future,
if they didn’t feel that they were not treated on an equal level
with 34th Street.
I conclude that the above-described comments of Chabot
constitute unlawful threats of futility in violation of Section
8(a)(1) of the Act, since it indicates to them that they would end
up no better off than without union representation. Heartland
of Lansing Nursing Home, 307 NLRB 152, 158 (1992); Hertz
Corp., 316 NLRB 672, 686 (1995); E.I. Dupont De Nemours,
263 NLRB 159, 165 (1982); Electric Hose & Rubber Co., 262
NLRB 186, 215 (1982).
I additionally conclude that the statements made by Chabot
are also violative of Section 8(a)(1) as an unlawful promise of
benefit that employees would receive the same benefits that the
34th Street employees receive, if they reject union representa-
tion. Fieldcrest Cannon, Inc., 318 NLRB 470, 522 (1995),
Patrick Industries, Inc., 318 NLRB 245, 255 (1995).
B. Jesus Cruz
The General Counsel presented two witnesses, employees
Ortiz and Martinez who testified concerning alleged statements
that they overheard by Supervisor Jesus Cruz.
According to Martinez, sometime in mid-January 1996, he
overheard Cruz say to a new employee at Respondent’s facility,
that if the employee joined the Union, he would get fired. Mar-
tinez did not hear any other part of the conversation, and could
not recall the name of the new employee, who was subse-
quently discharged by Respondent.
Ortiz, who had previously been a supervisor of Respondent,
testified that he overheard Cruz speaking to a group of several
employees. According to Ortiz the employees were clowning
around and laughing with each other, when Cruz told the em-
ployees to “listen up,” and asked for their attention. Cruz said
“this is about the Union. If you vote for the Union and you win,
the last hired will be the first fired.” Ortiz recalled the names
of a few of the employees who were present and whose voices
he recognized.
After the discussion, Ortiz further testified that an employee
named King whose nickname was “little bit,” informed Ortiz
that Cruz had told the guys that if he was to vote for the Union
the new guys are the ones who are going to lose their jobs.
King asked Ortiz if this was true.3 Ortiz replied that he didn’t

3 Although Ortiz was no longer a supervisor at the time, in view of
his former supervisory status, employees respected him and came to
him for advice.
know anything about that and the employees should make their
own decision whether they want the Union or they didn’t.
Ortiz also was spoken to by other relatively new employees
such as Joseph Garth, “Shampoo,” and Shep . All these
employees asked Ortiz if they were to vote for the Union and
the Union were to win, would they lose their jobs. Ortiz re-
sponded that he didn’t know anything about the Union, and the
employees should do what they have to do. Ortiz added that he
can’t tell them to vote no or yes.
Cruz denied making any such statements to any employees.
In fact, Cruz claims that he did not talk to any employees about
the possible implications of unionization, and further that he
never discussed the Union with any employees.
I credit the mutually corroborative testimony of Ortiz and
Martinez and conclude that Cruz made the statements attributed
to him by these witnesses. In addition to the fact that Ortiz and
Martinez are both current employees of Respondent who are
not discriminatees and have no incentive not to testify truth-
fully, Stanford Realty Associates, 306 NLRB 1061, 1064
(1992), I was not impressed with the credibility of Cruz.
His testimony was contradicted by his pretrial affidavit con-
cerning whether he had been given any instructions from man-
agement concerning statements that he could or should make to
the employees about the Union, and more importantly was
contradicted by the testimony of Respondent’s own witness
William Chabot. Thus although Chabot testified to reading an
antiunion speech at a Christmas breakfast of employees in the
presence of Cruz as well as other supervisors, Cruz curiously
claims that he did not recall Chabot making such a speech, or
even being told about management’s position concerning the
Union. Clearly, in my view Cruz was not testifying truthfully
when he asserted that he did not recall such comments by
Chabot. However, since the witnesses were sequestered he did
not know that Chabot had previously testified on Respondent’s
case to reading such a speech, and Cruz felt that somehow any
antiunion statement by management officials might be suspect.
While the speech by Chabot at the Christmas breakfast is not
alleged to be unlawful, Cruz’ insistence on denying knowledge
of any antiunion statements reflects poorly on his credibility
with respect to the statements attributed to him by Ortiz and
Martinez which I have credited as detailed above.
Finally, as to Ortiz’ testimony I also rely on his testimony
that a number of employees came to him subsequent to Cruz’
comments and confirmed what Cruz had said to them. While
this testimony is hearsay, I do deem it appropriate to consider
such testimony in assessing the credibility of Ortiz, since the
testimony was adduced was a result of Respondent’s question-
ing, and it is corroborative of what Ortiz heard directly himself.
Based on these findings, I conclude that Respondent has vio-
lated Section 8(a)(1) of the Act by both of the statements made
by Cruz and overheard by Martinez and Ortiz. While it is true
that neither of these comments were directed at or in the pres-
ence of Martinez and Ortiz, they were overheard by these em-
ployees and were directed to other employees. Such statement
can be violations of the Act. Although based on overheard
remarks. Schwartz Mfg. Co., 289 NLRB 874, 889 (1988).
Respondent argues that the statement overheard by Ortiz is
not unlawful, since it was merely an accurate description of
what would take place if the Union were to propose a seniority
system as is the case in most collective-bargaining agreements.
Thus Respondent contends that Cruz was merely giving an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
accurate description of a seniority system, which is within Re-
spondent’s 8(c) rights. I do not agree.
Cruz did not mention anything about a seniority system, or
otherwise explain why the last employees hired would be the
first to lose their jobs. While it is true as Respondent asserts
that Ortiz testified that he believed that Cruz was referring to a
seniority system, that is not determinative. The test for finding
a violation is not dependent on subjective reactions of employ-
ees, but on whether the statements have a reasonable tendency
to coerce employees. Wlliamhouse of California, Inc., 317
NLRB 699, 713 (1995). Here I conclude that the statements of
Cruz which have no basis in fact, clearly have a reasonable
tendency to coerce employees, and infer that if the Union is
successful, that newly hired employees would lose their jobs.
D.J. Electrical Contracting Co., 303 NLRB 820, 824 (1991);
C.J.R. Transfer, Inc., 298 NLRB 579, 591 (1990).
Accordingly, based on the foregoing I conclude that Respon-
dent violated Section 8(a)(1) of the Act by the statements of
Cruz.
C. Thomas Gallagher
Martinez testified that in mid-January 1996, he overheard
Vice President Thomas Gallagher tell employee Clive William-
son, “if you get the rest of the West Indian guys to vote against
the Union, they will be taken care of.” Martinez asserts that he
did not hear any other part of the conversation.
Williamson emphatically denied that Gallagher or anyone
else from Respondent made any statements to him about how
West Indian employees should vote or that anyone made any
promises to him concerning West Indian employees voting
against the Union.
Gallagher denied having any discussion with Williamson
concerning the election or how West Indian employees should
vote, and denies making any statements that there would be a
benefit if Williamson persuaded West Indian employees to vote
no.
Inasmuch as both Williamson and Gallagher credibly deny
the statements that Martinez claims that he overheard, I find
that the counsel for the General Counsel has not met its burden
of proof with respect to this allegation, and shall recommend
dismissal of this allegation of the complaint.
D. Daniel Biederman
In early January 1996, Biederman gave a speech to its em-
ployees concerning the upcoming union election. Biederman
indicated to the employees that he did not believe that voting
for the Union would be in their best interests.
During the course of this speech, Biederman described Re-
spondent’s budget process to the employees. He explained that
annually Respondent's board of directors decides how much
money should be assigned for each function, and after that hap-
pens the budget is fixed and cannot be changed. He also told
them that he is always fighting with the board for higher budg-
ets, but that Respondent is a nonprofit organization and more
money does not come in as a result of doing good work.
Biederman added that since the budget is set for the year,
money for staff cannot increase. Therefore, Biederman as-
serted that if the employees received any wage increases as a
result of the Union’s coming in, some of Respondent’s employ-
ees would have to be laid off, in order to pay for these in-
creases.
One of the employees asked about the possibility of Respon-
dent bringing in an outside contractor. Biederman replied that it
was possible that an outside contractor could result from having
to pay for increases demanded by the Union and if so half of
the employees would not be here.
My findings above as to what Biederman said to the employ-
ees is based on a compilation of the credited portions of the
testimony of Mieses, Martinez, Ortiz, Sean Dancy, and Bied-
erman, as well as written speeches given by Chabot to employ-
ees in January 1996. In that regard, while the written speech,
which Chabot read to employees was not utilized by Bieder-
man, I find it likely that Biederman would have used similar
language in his comments to employees. Thus in Chabot’s
speeches, it was stated, “if the Union plans to double your
wages, it can only mean that we would have to cut half of the
jobs here to be able to pay that much money.” Further the
speech indicates, “if it gets too expensive for Grand Central to
provide sanitation, we will have to change what we do. It could
mean fewer people working. It could mean having a contractor
to so some or all of the work.”
Further in the second speech delivered by Chabot, he stated
that “the budget here is fixed through next June. That means
that if the Union wants major improvements, like higher wages
or more expensive benefits, it will mean cuts somewhere else,
like fewer men working.”
Therefore, I conclude that it is unlikely, as testified by some
of the General Counsel’s witnesses, that Biederman would
simply say that if the Union comes in, Respondent would lay
off or subcontract out work. Rather, as I have found above, and
indeed consistent with the testimony of other of the General
Counsel’s witnesses, that Biederman talked about layoffs and
subcontracting as a consequence of having to pay for increases
demanded by the Union.
The applicable standard for analyzing Biederman’s state-
ments was set forth by the Supreme Court in Gissel Packing:

[A]n employer is free to communicate to his employees any
of his general views about unionization or any of his specific
views about a particular union, so long as the communications
do not contain a “threat of reprisal or force or promise of
benefit.” He may even make a prediction as to the precise ef-
fect he believes unionism will have on his company. In such
a case, however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer's belief as to
the demonstrably probable consequences beyond his control
or to convey a management decision already arrived at to
close the plant in case of unionization.

395 U.S. 525, 618 (1969).
Respondent argues that Biederman’s comments fall within
the Gissel lawful prediction standard, since he was merely pre-
dicting “that if the Union were to compel substantial wage and
benefit increases, given the Partnership’s fixed revenues and
budget, the only way to pay such higher wages or benefits
would be to reduce the number of workers.” See, e.g., CPP
Pinkerton, 309 NLRB 723, 724 (1992). I cannot agree.
In order to qualify as a lawful prediction, Respondent must
demonstrate that its prediction is based on objective facts as to
demonstrably probable consequences beyond its control, em-
phasis added. Here nothing in any of Biederman’s comments
makes any reference to any consequences beyond its control.
While Biederman did refer to its budget being fixed for a year
by its board of directors, one cannot consider the board of di-
rectors to be a third party vis a vis Respondent, nor that the
board’s control over the budget to be an event beyond Respon-
GRAND CENTRAL PARTNERSHIP 971
dent’s control. The board of directors is simply part of Respon-
dent’s governing structure, and any decisions as to whether or
not revenues can be used to pay for wage increases or benefits
is clearly within Respondent’s control. Thus for this reason
alone, I conclude that Biederman’s comments do not fall within
the Gissel standards, and are violative of the Act. Crown Cork
& Seal Co., 308 NLRB 445, 459 (1992); Maremont Corp., 294
NLRB 11, 39 (1989); Crown Cork & Seal Co., 253 NLRB 14
(1981). See also Harrison Steel Castings Co., 293 NLRB 1158
(1989), where the Board held that an employer could not law-
fully suggest the loss of jobs as a result of costs of a collective-
bargaining agreement, “without demonstrating to employees
that such a chain of causation would be brought about through
forces beyond the Respondent’s control. Without more specific,
objective data, the statement in question could just as well be
taken to suggest that the Respondent might, purportedly on the
basis of cost factors that are at least partly within its own con-
trol and known only to it, discharge employees in the event
they chose to be represented by a collective-bargaining repre-
sentative. From the employees’ perspective, the statement has
a tendency to coerce them into disfavoring unionization.” Id. at
1159. (Footnotes omitted.)
Indeed in Pinkerton, supra, as well as the cases cited
therein,4 the statements of the employers therein were found to
be lawful, because they were based on predictions of third-
party action (cancellation of contracts by customers), and there-
fore were protected opinions of events beyond their control,
and not threats of reprisal.
Moreover, I also conclude that Respondent has not offered
sufficient proof of “objective facts” to convey its belief as to
“demonstrably probable consequences,” to come within the
Gissel definition of a lawful prediction. Biederman did not
offer any objective facts (other than his statement that its
budget was fixed) to establish any demonstrably probable con-
sequences between the Union’s possible demands and the lay-
off of employees or the subcontracting of work. His comments
were “not based on demonstrably probable consequences, but
on rank speculation and a desire to fan employees’ fears of job
loss.” Metalite Corp., 308 NLRB 266, 272 (1992). See also
Doffer Electric, 313 NLRB 1094, 1097 (1997) (employer’s
statement that it couldn’t get work with what it knew the area
contract of the Union to be, found not to amount to a suffi-
ciently demonstrable proposition as required in Gissel. “Em-
ployer is not permitted, under Gissel, to jump from the unstated
or unproven premise that a Union’s wage scale is fixed and
immutable to a conclusion that he may have to shutdown in the
event of unionization, and convey this ultimate conclusion to
employees.” Id. at 1097.
In my view, Biederman’s statement to employees was “tan-
tamount to warning that employees could not have their jobs
and a wage increase too, and if they supported the Union for
that reason, they had better vote no.” This is precisely the type
of threat that Gissel prohibits. Somerset Welding & Steel Co.,
304 NLRB 32, 43 (1991). The message imparted by Bieder-
man’s remarks is little different than an assertion that an em-
ployer could not afford to pay increases demanded by the Un-
ion, and would therefore have to reduce jobs, or to close the
plant. Such statements, even though they indicate a good-faith

4 Buck Brown Contracting Co., 283 NLRB 488 (1987); Daniel Con-
struction Co., 264 NLRB 569, 570–572 (1982)
concern over high labor costs and an inability to compete, are
nonetheless unlawful. Zim’s Foodliner, Inc. v NLRB, 495
F.2d 1131, 1137 (7th Cir. 1974). See also Bi-Lo Foods, 303
NLRB 749, 750 (1991) (predictions of job loss fail to provide
the necessary objective basis for employers claim).
Finally I also note that in order to qualify as lawful predic-
tions under Gissel the statements made by the employer cannot
consist of “overstatements he has reason to believe will mislead
his employees.” Gissel, supra at 620. Where an employer
makes such statements that are either factually unbalanced
Crown Cork, supra, 308 NLRB at 461, or which go beyond the
objective facts, the employer cannot rely on these comments as
based on objective facts, and transforms the remarks into coer-
cive language threatening employees with job loss in retaliation
for choosing the Union in violation of Section 8(a)(1) of the
Act. Reeves Bros., Inc., 320 NLRB 1082, 1083 (1996).
I conclude that Biederman’s comments run afoul of this
problem as well, as he gave the employees a misleading and
unbalanced view of Respondent’s budget process. I note ini-
tially that Biederman informed the employees, and repeated at
the hearing that Respondent’s budget for staff was fixed and
could not be increased. However, he did not testify that there
was any legal impediment to Respondent requesting additional
monies from the board in the interim because of a new and
unexpected development, such as the unionization of the em-
ployees and possible strike. I find it difficult to believe that the
board of director could not if it so chose to authorize Respon-
dent to receive additional sums to pay for union benefits even
during the fiscal year.
More importantly, Biederman conceded in his testimony,
that Respondent could, even if the board did not authorize addi-
tional spending, raise additional revenues by added fund raising
or running a budget deficit beyond the level allocated by the
board. Thus Biederman conveniently failed to disclose these
important facts to the employees, which demonstrate that con-
trary to his misleading statements to employees, there is no
automatic correlation between increases in benefits for employ-
ees and loss of jobs (or subcontracting). Rather, Respondent
had the option of paying for the increases by additional fund
raising or increasing the deficit. Thus, Respondent has misled
its employees about the consequences of the union’s demands,
and his remarks are coercive statements threatening employees
with loss of jobs and subcontracting,5 in retaliation for choosing
the Union and, therefore, violative of Section 8(a)(1) of the Act.
Reeves Bros., supra at 1083.6
5 MPG Transport, Ltd., 489, 492 (1994) (statement that employer
could not live with union contract and would have to contract out work
unlawfully).
6 It is also notable, that Reeves Bros., supra, specifically distin-
guished CPP Pinkerton, supra, cited by Respondent on the ground that
the statement made by the employer in Pinkerton indicated that based
on conversations with a customer there was the possibility not the
probability of third-party action. However in Reeves, the employer
misled the employees by transforming a customer statement indicating
the possibility of taking work away, into a more definite statement that
the customer would remove business, and as a result employees would
work for fewer hours. Similarly, here Respondent misled the employ-
ees by indicating that its budget process would automatically result in
loss of jobs for its employees if they were to receive wage or benefit
increases by choosing to be represented by the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
IV. THE TERMINATION OF PACO MIESES
A. Facts
Mieses was employed by Respondent since April 1991 as a
sanitation worker. He to was one of leading adherents for the
Union in its organizing in the fall of 1995. In that regard, he
circulated the petition that the Union used for its showing of
interest, organized meetings with employees, and spoke to em-
ployees about the benefits of the Union.
Although there is no direct evidence that any of Respon-
dent’s supervisors became aware of any of these activities en-
gaged in by Mieses, both Chabot and Paul Gallagher admitted
that they were aware that Mieses was a supporter of the Union.7
In October, Mieses was the General Counsel’s first witness
at the initial day of the trial here, and he furnished testimony
with respect to several of the allegations in the complaint
(which also encompassed the Union’s objections to the elec-
tion) including testimony concerning allegedly unlawful state-
ments made by Chabot.
After completing his testimony, he remained in the witness
room with the General Counsel’s other witnesses. In the after-
noon, employee Clive Williamson was Respondent’s second
witness, and he furnished testimony refuting the testimony of
Martinez, that Tom Gallagher had promised Williamson that
West Indian voters would be “taken care of” if they voted
against the Union.
After Willimson testified, he sat down next to Jose Cruz,
(one of Respondent’s supervisors) in the hearing room. Union
Organizer Hill was asked by its attorney to find out the identity
of Cruz. Hill then asked Mieses to accompany him to the hear-
ing room. Mieses looked into the hearing room and told Hill
that the unidentified individual was Jesus Cruz.
According to Williamson, at that time, Mieses pointed his
finger at Williamson. Both Hill and Mieses deny that Mieses
pointed his finger at Williamson. At that point, Williamson
came over to Mieses and said, “[W]hat,? What’s the matter?”
Mieses responded, “[W]hat,”? and the conversation terminated.
The next morning, October 29 at 8 a.m. Chabot met William-
son on the street as Chabot was coming to work. Williamson
told Chabot that Mieses and the union representative were
pointing at him at the hearing. Chabot told Williamson that he
should not be terribly concerned about it.
The next morning October 29, in the locker room, William-
son was approached by employee Santos Harden. Harden said
to Williamson, “you better get a bulletproof vest, you hear,
money.”8 Williamson made no reply to Harden, but believed at
the time that Harden was serious. Williamson immediately
reported Harden’s statement to Supervisor Paul Gallagher.
Gallagher told Williamson not to worry about it. Gallagher also
did not report the threat to Chabot, because according to Galla-
gher, he did not believe Harden was serious, and that he
thought that the comment was made in jest.9
After lunch on October 29, Harden approached Williamson
and said that he didn’t mean anything by his earlier remark, that
he has a family just like Williamson, and he would not consider
hurting Williamson. At 3:30 p.m., Williamson reported to Gal-

7 Gallagher also admitted that employee Clive Williamson had in-
formed him that he (Williamson) didn’t want any part of the Union.
8 Money is a slang word meaning “man.”
9 However, Gallagher admitted that at the time, Williamson per-
ceived the threat from Harden to be serious. Gallagher also testified
that Harden was a “fence sitter” with respect to the Union.
lagher that Harden had apologized to him and said that he did
not mean anything by his prior statement.
Chabot was vague and uncertain about his knowledge of the
Harden incident. He asserts that he heard about it, but he could
not recall from whom or when, but he does remember being
told by Williamson that Harden had apologized and said he
didn’t really mean anything. According to Chabot he did not
find out about the Harden incident until after he terminated
Mieses,10 and he did not consider disciplining Harden because
he viewed Harden’s statement as a “warning” not a “threat,”
and because Harden had apologized to Williamson.
The next day October 30, at 7 a.m., Williamson confronted
Mieses in the area where employees sign in before starting
work. Williamson asked Mieses why he was pointing at Wil-
liamson after Williamson had testified. Mieses replied that he
wasn’t pointing at Williamson, and that it was Williamson who
came out saying, “[W]hat, what like you wanted to fight.”
Williamson responded, “if anything happens to me or my fam-
ily, you guys are
responsible.”11
Before going out on his route, Mieses stopped by the super-
visors’ office. Present were Supervisors David Rojas and Paul
Gallagher. Mieses addressed himself to Rojas and told him,
“David, tell Clive to leave me alone or I'm going to stab the shit
out of him.” Mieses added that he had been in jail before and he
would go there again.12
Gallagher then chimed in, “you guys have been going at each
other’s throat ever since the union stuff started going on. I wish
you would leave me out of this.” Mieses replied, “Paul, look I
got nothing to do with this. I didn’t know what you’re talking
about. I was subpoened there just like everyone else.” Galla-
gher responded, “yeah, well, you must have said something for
them to subpoena you.”
Rojas and Gallagher then instructed Mieses to calm down,
stay away from Williamson, and to return to work.13
When Chabot arrived for work at 8:15 a.m., Rojas and Gal-
lagher reported to him that Mieses had threatened Williamson.
Chabot asked why the threat was made. They informed him
10 As will be discussed below, Mieses was discharged on October
30.
11 I credit Williamson’s version of this discussion as described
above. While Mieses asserted that Williamson threatened to “cut his
fucking fingers off” during this conversation, which precipated Mieses
response that “I should stab your ass,” I find this testimony not credi-
ble. I note particularly, that Mieses as will be described below made no
reference to Williamson’s alleged threat to him until he was notified of
his termination.
12 Mieses had been in jail two or three times in the past for posses-
sion of marijuana and/or cocaine. The record also reveals that a lot of
Respondent’s employees also served time in jail. Indeed Respondent
also participates in a work release program with prisons where it hires
employees from prisons to perform work for it.
13 The above description of the discussion between Mieses, Galla-
gher, and Rojas is based on a compilation of the credited portions of the
testimony of these three witnesses. While Gallagher denied that he
made any reference to the Union during the conversation, his denial
was equivocal, as he stated in response to a question from his attorney,
“not that I remember no.” However, Rojas who testified on behalf of
Respondent and supported Gallagher’s testimony in certain respects,
was not asked about that issue, and therefore gave no corroborating
testimony. While Rojas claims that he was not present for the entire
conversation, both Miesas and Gallagher assert that he was there for the
entire time. Accordingly, I credit Mieses as outlined above as to the
discussion about the Union and his testimony at the trial.
GRAND CENTRAL PARTNERSHIP 973
they had not spoken to Williamson about the matter, but that
they believed it had something to do with Mieses pointing at
Williamson at the hearing. Chabot said to Gallagher and Rojas
that this type of conduct cannot be tolerated. Chabot also in-
formed Rojas and Gallagher that he would check the matter out
and speak to Williamson and Mieses about the incident.
At around 10 a.m., Chabot called Williamson into his office.
Chabot asked what happened between him and Mieses that
morning. Williamson related that he had asked Mieses why he
was pointing at him at the hearing. Mieses replied that he had
not pointed at Williamson, and that he (Mieses) thought Wil-
liamson wanted to fight. Williamson related that he informed
Chabot that he told Mieses, “if anything happens to me or my
family you guys are responsible.” Chabot then stated that Mi-
eses had threatened to stab Williamson. Williamson seemed
distressed and asked why Mieses wanted to stab him. Chabot
advised Williamson to calm down and return to work.
Subsequent to his conversation with Williamson, Chabot tes-
tified that he thought the matter over and decided that since
Mieses made a very serious threat in an abnormal manner he
would be terminated. The abnormal manner referred to by
Chabot was the fact that the threat had been made through a
supervisor and not directly from Mieses to Williamson.
Therefore, Chabot instructed Gallagher to type a termination
letter that he (Chabot) prepared. The letter recites that an NLRB
hearing was held on October 28, 1996, regarding charges filed
by the Union against Respondent, and that Mieses testified for
the Union, and Williamson testified on behalf of Respondent.
Further the letter states that Mieses pointed a finger at William-
son after Williamson had testified.
On Wednesday, October 30, 1996, the letter recites that Wil-
liamson confronted Mieses and asked why he pointed at him
during the hearing. Mieses according to the letter, “became
very agitated,” and said he didn’t point at Williamson.
Mieses then entered the supervisor’s office, “seemingly an-
gry” and said to D. Rojas and P. Gallagher, “I’ve been in jail
before-so tell Clive to stay away from me and not bother me or
I’ll stab the shit out of him. I will.”
The letter concludes by stating that “this type of behavior is
not acceptable no matter what the provocation.” Thus, Mieses’
employment is terminated for “threatening a fellow employee
with serious injury.” The letter was signed by Chabot as well
as Gallagher and Rojas.
Chabot read the letter to his attorney, and then decided to
call in Mieses. According to Chabot while he had decided to
terminate Mieses before speaking to Mieses about the incident,
the “decision was not set in cement,” but if Mieses admitted
making the statements attributed to him by the supervisors, he
would be discharged.14
After lunch, Mieses was called into Chabot’s office. Chabot
read the letter to Mieses and told him that he could not tolerate
this kind of behavior and that Mieses was terminated. Mieses
admitted that he had made the threat, but informed Chabot that
Williamson had threatened him first and said to Mieses, “I
should cut your fucking finger off.” Chabot responded that he
did not believe that Williamson would say something like that
to Mieses. Mieses stated that the discharge was because of the
Union. Chabot answered that it had nothing to do with the

14 However, Chabot, when asked by his attorney if there was any-
thing that Mieses could have told him that would have caused him to
change his mind, replied, “I don't know what that might have been.”
Union. Mieses responded yes it did have to do with the Union,
because this is what the argument was all about. Mieses then
referred to the fact that Williamson had accused Mieses of
pointing a finger at him the other day in court.15
After the meeting with Mieses, Chabot asserts that he then
met with Williamson and asked him if in fact he had made the
statement attributed to him by Mieses. Williamson denied mak-
ing such a statement.16 According to Chabot, if Williamson
had admitted making such a threat to Mieses, he might have
reversed his decision to terminate Mieses.
Chabot admits, and other witnesses confirm, that verbal
threats are commonplace at Respondent’s facility, particularly
since many of the employees are formerly homeless people.
Generally the threats are to kick someone’s “ass” or similar
statements. Generally when these kinds of statements are made
by one employee to another, Chabot will call the participants
into his office and try to resolve the dispute and to persuade the
employees to shake hands and forget about their confrontation.
According to Chabot he is usually successful in working things
out in that manner.
Chabot admitted that he has never terminated an employee
for making a verbal threat to another employee, and asserts that
at most he may have suspended employees for a day or so for
such conduct, but he could not recall any specific individuals
whom he suspended for verbal threats.
Chabot however testified that he viewed Mieses' threat to
stab Williamson as a more serious threat than the normal
threats to punch someone, plus the fact that Mieses mentioned
that he had been in jail. Additionally as noted, Chabot also
claims that he viewed the threat as more serious, because it was
made to a supervisor, and not directly to an employee, as is
normally the case where there are arguments between employ-
ees.
As also noted above, Respondent did not discipline Harden
for his statement to Williamson concerning wearing a bullet-
proof vest. As also related above, Chabot was not informed
about Harden’s comments to Williamson until after Harden had
apologized to Williamson, which according to Chabot was a
major reason why Harden was not fired or even disciplined for
such conduct. However, Chabot also testified that even if Mi-
eses had apologized to Williamson, it would not have changed
Chabot’s mind, and Mieses still would have been terminated.
Respondent introduced evidence of two prior incidents
where employees were discharged for in Respondent’s view
similar conduct to that engaged in by Mieses.
Thus on August 9, 1995, employee Timothy Bracker’s em-
ployment was ended at Respondent. Bracker, who was 6 foot 3
inches and much heavier than fellow employee Donnell White,
engaged in a pushing and shoving match with White over re-
payment of a loan. As Bracker was being calmed down, he
produced a gun that “scattered the locker room.” As a result of
this incident, a termination letter was prepared for Bracker,
summarizing the incident, and stating, “the presence of weap-
ons is not acceptable in the work place.” Subsequently,
Bracker asked Chabot if he could resign, rather than be termi-
nated. Chabot agreed, and a written resignation was accepted
15 Although Mieses used the word court, he obviously was making
reference to the National Labor Relations Board trial.
16 Williamson did not provide any testimony to corroborate Chabot’s
assertion that Williamson was asked by Chabot whether he had threat-
ened to cut off Mieses’ fingers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
with the statement that “he stated he was going to pursue an-
other line of work.”
On August 23, 1991, Respondent terminated employee
George Blount. His termination letter reflects that when he
arrived for work he began “flashing his knife” in the office. He
was told by Supervisor Cruz to put the knife away as this was
not acceptable behavior. The letter further indicates that Cruz
and P. Gallagher had told Blount on several previous occasions
to “put the knife away.”
However, according to the letter Blount ignored this direc-
tive when he proceeded to “play” with the open knife in the
locker room by threatening employee Campbell with it and
making disparaging remarks about Jamaicans.
Another employee, Ferguson took exception to Blount’s re-
marks and the knife, and told Blount to “knock it off.” Blount
then shouted vindictive remarks to Ferguson, which caused
Ferguson to say that he did not need a knife to fight. This ex-
change resulted in a serious fight between Blount and Fergu-
son, during which Blount threw Ferguson first onto the porch,
and then down the steps.
The letter concludes by stating that although the knife was
not used during the struggle, Chabot “felt it was the reason for
the intensity of the fight, as Mr. Ferguson felt that he was being
seriously menaced.”
Thus Blount’s employment was terminated as a result of this
behavior. The letter reflects, “the presence of weapons is not
acceptable in the work area. This was a very serious fight and
was not playing around.”
Respondent also introduced some evidence of past miscon-
duct by Mieses, which in its view demonstrates Chabot’s per-
ception of Mieses vis a vis Williamson and entered into the
decision making. Thus Mieses on May 8, 1995, was suspended
for 2 days for his conduct in dealing with a “homeless” woman,
in which Respondent asserted that he was abusive toward her
by allegedly miming masturbation. The official warning letter
from Mieses’ personnel file reflects that Mieses claimed that
the woman had spit at him and gestured at him in a disrespect-
ful manner. While Mieses denied that he had mimed masturba-
tion, he admitted that he did grab his groin to show his dis-
pleasure. Thus Mieses was counseled regarding behavior while
in uniform, and was told that all of the public must be treated in
a respectful manner. To reinforce the seriousness of inappro-
priate behavior, Mieses was suspended for 2 days.
Additionally, Mieses admitted that on another occasion he
was sent home by a supervisor for a day for being missing from
his route.
While Chabot testified that the incident with the homeless
woman does demonstrate to him that Mieses has an excitable
personality, and perhaps more likely to carry out a threat, he
admitted that when he made his decision to discharge Mieses
he did not recall this incident, nor did he have it in his mind,
nor did he check Mieses’ personnel file to examine his past
record. According to Chabot the sole reason for his decision to
discharge Mieses was the threat that he made.
B. Analysis
The record discloses substantial evidence to meet the Gen-
eral Counsel’s burden of establishing that protected conduct
engaged in by Mieses was a motivating factor in Respondent’s
decision to discharge him. All of the elements necessary to
meet the General Counsel’s burden of proof are convincingly
present.
Thus Mieses and was one of the leading supporters of the
Union, which was then admittedly known by Respondent’s
supervisors, and he testified on behalf of the Union at combined
unfair labor practice objections hearing on October 28, which
could only have further solidified his union support in the
minds of Respondent's officials.
Two days after Mieses gave his testimony, he was dis-
charged. Such timing between the exercise of protected conduct
in relation to the discharge is a highly significant indication of
discriminatory motivation, and strong evidence of an unlawful
motive for the termination. Trader Horn of New Jersey, Inc.,
316 NLRB 194, 198 (1995). Indeed, timing alone can be suffi-
cient to establish that antiunion animus was a motivating factor
in a disciplinary decision. Sawyer of Napa, Inc., 300 NLRB
131, 150 (1990); NLRB v. Rain-Ware, Inc., 732 F.2d 1349,
1354 (7th Cir. 1984).
Here however, the General Counsel’s case is supported by
much more than suspicious timing, particularly the evidence of
animus toward the union activities of its employees. Such ani-
mus is demonstrated by the 8(a)(1) violations that I have found
above, which included serious violations such as threats of
discharge, or layoff of employees, subcontracting work or of
futility, as well as promises of benefit to employees that em-
ployees would receive the same benefits as employees at 34th
Street without the need for the Union. These violations were
committed by several of Respondent’s officials, from its first-
line supervisor to its president, and including William Chabot
the supervisor who made the decision to terminate Mieses.
Moreover, I also note the statements made by Supervisor
Gallagher after Mieses made the threat to stab Williamson.
Gallagher expressed annoyance with becoming involved in the
dispute between Williamson and Mieses by criticizing them for
“going at each others throats since the union stuff started going
on.” Then Mieses sought to minimize his participation in union
activities and his testimony at the hearing by saying he had
“nothing to do with this,” and he had been “subpoened just like
everyone else.” Gallagher’s reply to this comment was quite
significant. He stated, “yeah, well you must have said some-
thing for them to subpoena you.” This remark by Gallagher
while not unlawful, expresses skepticism about Mieses’ alleged
attempt to establish his neutrality, and demonstrates that Galla-
gher knew or at least suspected that Mieses had provided testi-
mony damaging to Respondent’s position at the hearing 2 days
before, and that Gallagher was not pleased about that fact. This
statement provides further evidence of a link between Mieses’
protected conduct and Respondent’s decision to terminate him.
Having found that the General Counsel has established that a
motivating factor in Respondent’s discharge of Mieses was his
protected conduct of activities on behalf of the Union and his
testimony at the hearing in their favor, the burden shifts to Re-
spondent to establish by a preponderance of the evidence that it
would have taken the same action against Mieses, absent his
protected activities. Wright Line, 251 NLRB 1083, 1089
(1980); NLRB v. Transportation Management, 462 U.S. 400,
403 (1983). I conclude that Respondent has fallen short of
meeting its burden of proof in this regard. I note initially that
Respondent has failed to show that it has ever discharged any
employees for the acts of misconduct committed by Mieses,
i.e., making verbal threats to another employee. The failure of
an employer to show that it has treated employees in the past in
a similar manner for engaging in similar misconduct to that of
the alleged discriminates, has been held to be an important
GRAND CENTRAL PARTNERSHIP 975
defect in the employer meeting its Wright Line burden. Ellicot
Square Corp., 320 NLRB 762, 775 (1996), enfd. 104 F.3d 354
(2d Cir. 1996); New Jersey Bell Telephone Co., 308 NLRB
277, 283 (1992); Aratex Co. Services, 300 NLRB 115, 116
(1990); Phillips Industries, 295 NLRB 717, 718 (1989). “Un-
der Wright Line, an employer cannot carry its burden of persua-
sion by merely showing that it had a legitimate reason for im-
posing discipline against an employee, but must show by a
preponderance of the evidence that the action would have take
place even without the protected conduct.” Hicks Oil & Hecks-
gas, 293 NLRB 84, 85 (1989), cited, in New Jersey Bell, supra.
Not only has Respondent failed to show that it has termi-
nated employees for making verbal threats, but its treatment of
Mieses deviated significantly from how it treated similar in-
stances of verbal threats. Thus the record is undisputed that
verbal threats to employees are commonplace occurrences at
Respondent’s facility, which is not surprising since it employs
former “homeless” individuals, as well as employees on prison
release programs. It is conceded by Chabot that his normal
practice in such cases is to summon the employees involved in
the altercation into his office to work the problems out and
persuade the employees to shake hands and forget about it.17
However, Chabot admittedly did not follow his normal practice
in this instance, and his alleged reason for not doing so is far
from convincing. Chabot explained that since the threat was
made through a supervisor rather than directly to the employee,
he considered it more serious, and presumably persuaded him
not to follow his normal practice and call the employees into
his office together to try to work things out.
This purported explanation is unpersuasive, since Chabot
was clearly aware that there had in fact been two confrontations
directly between Mieses and Williamson, both related to con-
duct at the National Labor Relations Board hearing, prior to
Mieses making the threat. Moreover, at the second confronta-
tion, it was Williamson who provoked Mieses’ conduct by
starting the argument, accusing Mieses of pointing at him, and
threatening Mieses that he would be held responsible if any-
thing happened to Williamsons family. While I need not and
do not find that Williamsons provocative conduct justified Mi-
eses’ threat to stab him, I do conclude that Mieses’ threat was
not totally unprovoked, and more importantly was clearly re-
lated to the prior confrontations between the employees. Thus
Chabot’s purported distinction is illusory and inconsequential,
and I conclude purely pretextual.
In my view the evidence demonstrates that Chabot did not
follow his normal practice with regard to verbal threats, not
because he considered it more serious than prior threats or be-
cause it was made through a supervisor, but because the threat
was made by a union supporter and a witness who testified at
the National Labor Relations Board hearing on behalf of/and in
favor of the Union, to a nonunion supporter who testified at the
hearing on behalf of/and in favor of Respondent, and that the
threat was related to an argument that the employees had con-
cerning events at the National Labor Relations Board Trial.
This conclusion is fortified and supported by Respondent’s
conduct in dealing with the threat made by employee Harden to
Williamson on the same day as Mieses’ threat. As noted above,
Harden informed Williamson that he better get a bullet proof
vest, which resulted in Williamson becoming concerned and

17 In such cases, he rarely disciplines either of the employees in-
volved, but at most will issue a 1- or 2-day suspension.
reporting Harden’s conduct to Gallagher. Yet Gallagher did
not, as he did in the case of Mieses’ threat, report the incident
immediately to Chabot. Gallagher provided no explanation for
his failure to do so, and the only explanation that the record
supports is the interesting fact that Gallagher considered
Harden a “fence sitter,” while he knew that Mieses was a union
supporter.
Chabot asserts that he decided not to discipline Harden for
his remarks to Williamson, because he viewed the statement as
a “warning” and not a threat, and that Harden eventually apolo-
gized to Mieses. I find these purported explanations for the
contrasting treatment of Mieses and Harden, also to be uncon-
vincing. The assertion that Chabot considered Harden’s com-
ment to be a warning rather than a threat, I conclude is not be-
lievable, since it amounts to distinction without a difference,
and I find it hard to imagine that Chabot or any reasonable
person would conclude that a statement that someone should
wear a bullet proof vest was not a threatening remark. More
importantly, while Harden did apologize to Williamson, Re-
spondent did not give Mieses an opportunity to apologize to
Williamson18 and, significantly, Chabot testified that even if
Mieses had apologized he still would have been fired.
I, therefore, conclude based on the above analysis, that Re-
spondent’s failure to follow its normal practice with respect to
verbal threats and its disparate treatment of Mieses vis a vis
Harden (as well as well as other employees in the past who
made verbal threats and who were not fired) substantially un-
dermines Respondent’s defense. Paper Mart, 319 NLRB 9,10
(1995); Pope Concrete Products, Inc., 305 NLRB 989, 990
(1991).
Respondent makes several arguments in response to the
above findings that I have made, which I have considered but
rejected as detailed below. It argues that in fact Mieses’ threat
was so serious that it was similar to the two prior incidents
where Respondent discharged employees Bracker and Blount. I
disagree, and conclude that these incidents involved much more
serious transgressions than Mieses’ verbal threat. Allegheny
Ludlam Corp., 320 NLRB 484, 506 (1995). Thus Bracker was
terminated for brandishing a gun which resulting in a physical
confrontation, and included a finding by Respondent that all
who witnessed the scene (six coworkers and three supervisors),
felt menaced by the presence of the gun.
Blount also was terminated for conduct much more serious
than a mere verbal threat, which included the “flashing” of a
knife as well as severe physical fight wherein the employee
threw a much smaller employee onto the porch and then down
the steps. Respondent’s treatment of Blount is particularly
revealing vis a vis Mieses. Not only do I conclude that Blount
engaged in far more serious misconduct than Mieses, but
Blount’s termination letter revealed that he had received several
prior warnings from supervisors to cease “flashing” his knife.
Here, on the other hand Mieses received no prior warnings by
Respondent for making verbal threats. Thus, not only does
Respondent’s treatment of Blount not demonstrate as it con-
tends, that it discharged an employee for similar conduct to that
engaged in by Mieses, but it does demonstrate disparate treat-
ment in that Mieses, unlike Blount was discharged without any
18 Indeed, if Chabot had followed his normal practice of calling the
employees into his office together to try to work out the matter, Mieses
might well have apologized to Williamson.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976
prior warnings with respect to the conduct which led to his
discharge.
In that regard, Respondent also argues that Mieses was dis-
ciplined and suspended for “inappropriate albeit less serious
conduct before he engaged in any protected, concerted activ-
ity.” I fail to see how those facts help Respondent’s case in any
respect. Thus Chabot admitted that these prior incidents had no
bearing on his decision to discharge Mieses, and that in fact
they were not in his mind at all when he made that decision.
The fact that Respondent previously disciplined Mieses prior
to any union activities does not support Respondent’s current
action, since admittedly the decision was not based at all on his
prior record. In fact if anything, its prior action demonstrates
that before his union activities, Respondent only suspended
Mieses for misconduct, while in the present case, after his pro-
tected conduct, it discharged him for a first offense without a
warning. Thus this evidence in my view also serves to under-
mine Respondent’s defense.
Respondent also argues that Mieses threat was a “calculated
threat designed to intimidate Mr. Williamson, and perhaps any
others who might dare to testify contrary to the interests of the
Union.” It further states that Mieses’ “threat was not an ordi-
nary minor altercation; it was a deliberate, contrived message to
an employee who had the audacity to testify against the Union.”
These comments in Respondents brief rather than justify Re-
spondent’s conduct as it intends, only serves to reinforce my
conclusion set forth above that it was Mieses’ protected con-
duct that motivated Respondent’s decision to discharge him.
Thus, Respondent makes reference to Williamson having testi-
fied against the Union and that it viewed Mieses as trying to
intimidate Williamson and send a message to an employee who
had the audacity to testify against the Union.
These comments demonstrate, consistent with my findings
above, that Respondent treated Mieses differently than other
employees who engaged in similar conduct, primarily because
of the nature of the underlying confrontation between William-
son and Mieses. That is they argued concerning their respec-
tive union preferences and their testimony at the National Labor
Relations Board hearing. While Respondent may feel that it
has some sort of special responsibility to protect its witnesses
and its employees who are antiunion, it may not do so by dis-
criminatorily treating prounion witnesses and prounion adher-
ents differently than it treats other employees who make threats
in other situations, unrelated to union or protected conduct.
That is precisely what the evidence establishes that Respondent
has done in the instant case, and such conduct is violative of the
Act.
Finally, I conclude that Respondent’s defense is also under-
mined by its failure to conduct an adequate investigation of
Mieses’ conduct, especially its failure to afford him the oppor-
tunity to respond to the allegations against him before discharg-
ing him. Paper Mart, supra at 10; Washington Nursing Home,
Inc., 321 NLRB 366, 375 (1996). Such conduct by Respondent
lends support to an inference of unlawful motivation, and
shows that Respondent was not truly interested in determining
whether misconduct had actually occurred. Handicabs, Inc.,
318 NLRB 890, 897 (1995), enfd. 95 F.3d 681, 685 (8th Cir.
1996).
Here Chabot decided to discharge Mieses before calling him
into the office to confront him with the allegations against him,
and in fact read him a prepared letter of termination before even
asking him for his version of the facts. While Chabot asserted
that he was going to discharge Mieses if he admitted making
the threat, I find this testimony unpersuasive and conclude that
Mieses was going to be terminated no matter what he said or
admitted to at the meeting. Indeed, Chabot admitted that he
didn’t know what Mieses could have said that would have
changed his mind.
While in fact Mieses did make an assertion that Chabot con-
ceded might have caused him to reverse his decision if con-
firmed (Mieses’ claim that Williamson threatened to cut off his
fingers), Chabot did not postpone his discharge decision, and
merely informed Mieses that he did not believe Williamson
would make such a remark.
Although Chabot does assert that he did after the discharge
ask Williamson about Mieses’ allegation, I note that William-
son did not corroborate Chabot in this respect. In any event,
Chabot’s failure to at least postpone the discharge while check-
ing out Mieses’ assertion is further evidence of my conclusion
that Chabot was not interested in learning the truth of what
happened, but was intent on discharging Mieses as quickly as
possible. Indeed Chabot provided no cogent explanation as to
why he was in such a hurry to terminate Mieses, or why he
discussed the discharge with his attorney and prepared the dis-
charge letter before speaking to Mieses.
The most plausible reason for Chabot’s failure to do so is
consistent with my findings above. He was intent on ridding
Respondent as soon as possible, of a leading union adherent
who not only testified against Respondent at the National Labor
Relations Board hearing, but who also had confrontations at the
hearing and shortly thereafter with an employee who did not
support the Union and who testified for Respondent and against
the Union at the hearing.
Accordingly, based on the foregoing analysis and authorities,
I conclude that Respondent has failed to meet its burden of
establishing that it would have terminated Mieses absent his
protected conduct. Therefore, it has violated Section 8(a)(1),
(3), and (4) of the Act by its discharge of Mieses. I so find.
V. THE RESPONDENT’S CONTESTING OF MIESES’
UNEMPLOYMENT COMPENSATION CLAIM
A. Facts
Mieses testified that on the day of his termination, he noti-
fied Chabot that he was going to apply for unemployment in-
surance. Chabot responded according to Mieses that he should
not worry about it, that he (Chabot ) would take care of him and
that he (Chabot) was “not out to kill” Mieses. Chabot gave
Mieses a card to fill out for unemployment, as well as a copy of
Respondent’s termination letter.
Shortly thereafter, Mieses went to the unemployment office
to file for benefits. Mieses admitted that he lied to unemploy-
ment on his initial application and stated that he was laid off for
lack of work, because he thought that he would not receive
benefits if he told them he was fired for threatening an em-
ployee.
On October 31, 1996, the Union filed a charge with the Re-
gion in Case 2–CA–29826 alleging that Respondent violated
Section 8(a)(3) and (4) of the Act by discharging Mieses, be-
cause he gave testimony on behalf of the Union at the National
Labor Relations Board trial on October 28, and because of his
activities on behalf of the Union. The charge was served on
Respondent on November 4.
According to Mieses he received a call from a Ms. Taylor
from the Department of Labor, about 3 weeks after he filed his
GRAND CENTRAL PARTNERSHIP 977
initial claim. She informed him that he must appear at the of-
fice to investigate his claim, because his Employer had said that
he was terminated for threatening to kill a coworker. Thus,
Mieses on November 27 went to the office and spoke with Ms.
Taylor. At that time he admitted that he had lied previously, but
also gave her a copy of the National Labor Relations charge
filed on his behalf, as well as his affidavit given in connection
with the case, and Respondent’s termination letter. Taylor also
took a written statement from Mieses, wherein he explained the
circumstances of his threat to Williamson, including his asser-
tion that Williamson had threatened him first. He also ex-
plained why he had gone to supervision about the matter, and
that he had filed unfair labor practice charges against Respon-
dent concerning his discharge. Finally he also conceded in the
statement that he checked lack of work on the application, be-
cause he “didn't want to put fired,” it was his first time filing
for benefits, and he thought it would stop him from getting
benefits.
Taylor informed Mieses at that time that his case would be
investigated further, but she believed that he would be penal-
ized for 1 week, because he had not told the truth when he ini-
tially filed his claim.
After this meeting, Mieses asserts that he called Chabot on
the phone. Mieses claims that he asked Chabot why Respon-
dent had told the Labor Department that he had threatened to
kill a coworker, since Chabot had previously told Mieses that
he (Chabot) wasn’t out to kill him. (Mieses) Chabot responded
according to Mieses, “Paco, what did you want me to do, you
went to the NLRB.” Mieses further asserts that he replied to
Chabot, “what was I supposed to do, take this sitting down?”
Subsequently, Mieses received a document from the De-
partment of Labor, dated December 11. The document reflects
that on November 4 Mieses willfully made false statements to
obtain benefits, and that his right to receive benefits was re-
duced by 4 days. It further explained that Mieses had checked
“lack of work” on the application as the reason for separation,
but he knew that the separation was not for lack of work. This
determination was not appealed by either Respondent or Mi-
eses, and he thereafter received benefits, with the exception of
the penalty of 1 week.
Chabot testified that he did not recall any discussion with
Mieses on the date of discharge concerning whether Mieses
would be eligible for unemployment. Chabot claims that he did
give as he normally does a piece of paper with a registration
number on it to bring to unemployment, but denies that he
promised not to oppose Mieses’ unemployment. Chabot adds
that he doesn’t decide unemployment and never tells anyone
that they will or will not get unemployment. It is just not his
decision and he contends that he has nothing to do with that
decision.
Chabot also does not recall a phone conversation with Mi-
eses concerning unemployment, but did testify that during a
personal meeting with Mieses, Mieses told Chabot that there
was a delay in his receiving unemployment, because of a prob-
lem with his green card. Chabot was asked if he opposed Mi-
eses’ claim for unemployment because he filed a charge with
the National Labor Relations Board? He responded that he did
not oppose anyone going for unemployment, and that he never
told Mieses that he was going to make it more difficult for him
to get unemployment because he filed a charge with the Na-
tional Labor Relations Board.
Respondent adduced no other evidence or any other wit-
nesses concerning the issue of Mieses’ unemployment benefits.
Thus since Chabot claimed that he did not make the decision to
contest Mieses’ claim, Respondent did not produce the person
or persons who made the decision, nor any other evidence as to
who or why such decision was made.
B. Credibility Resolutions and Analysis
I credit the testimony of Mieses as reflected above, concern-
ing his conversations with Chabot concerning unemployment
insurance. I found Mieses to be candid, consistent and believ-
able with respect to such testimony which in my view had the
“ring of truth,” to it and did not sound to me to be concocted.
Chabot, on the other hand, was rather vague and equivocal in
his purported denials. Thus he did not specifically deny that he
told Mieses that he should not worry about it, that he (Chabot)
would take care of Mieses, or that he was “not out to kill” Mi-
eses while discussing unemployment insurance. Indeed when
asked whether he had a discussion with Mieses concerning his
eligibility for unemployment, Chabot replied that he did not
recall any such discussion, while at the same time admitting
that he gave Mieses a form to be taken to unemployment. It is,
therefore, logical to conclude which I do, that there was some
discussion between them about unemployment, and I therefore
credit Mieses’ testimony in that regard.
With respect to Mieses’ testimony concerning their second
conversation, again Chabot was vague and equivocal. He also
“did not recall [emphasis added]” a phone conversation with
Mieses concerning unemployment, but did recall a face-to-face
meeting where the subject was discussed. Once again Chabot
failed to specifically deny the significant portions of Lo Mi-
eses’ testimony, i.e., that Mieses asked him why Respondent
had told the Department of Labor that he had threatened to kill
a coworker, since Chabot had previously told him that he
(Chabot) “wasn’t out to kill” him, and that Chabot replied,
“Paco, what did you want me to do, you went to the NLRB.”
Thus while Chabot did deny telling Mieses that he was going to
make it more difficult for him to get unemployment, because he
filed a charge with the National Labor Relations Board, that is
not a clear denial of Mieses’ testimony. Even, if Chabot’s “pur-
ported” denials coupled with his versions of their conversa-
tions, are deemed to be sufficient to constitute clear denials of
Mieses’ testimony, I do not credit these denials, as I find as
detailed, above, that Mieses’ version of the conversations was
both believable and credible.
Having made these findings, the evidence fully supports the
General Counsel’s contention that a motivating factor in Re-
spondent’s decision to contest Mieses’ unemployment insur-
ance claims was his protected conduct of participating in an
National Labor Relations Board charge with respect to his dis-
charge.19
Thus on the date of his termination, Chabot’s comments to
him, while not an absolute promise by Respondent not to con-
test his unemployment, clearly can reasonably be construed,
which I do, as an assertion by Chabot that Respondent would
not stand in his way of obtaining unemployment insurance.
Indeed Chabots statements concerning unemployment, such as
that Mieses should not worry about it, that he (Chabot) would

19 While Mieses did not actually file the charge, it was filed by the
Union on his behalf. Thus Mieses was clearly engaged in protected
conduct in that regard, and Respondent does not argue otherwise. See
NLRB v. AA Electric, 405 U.S. 117, 124 (1972).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
take care of him, and that he (Chabot) was not “out to kill”
Mieses, can only be rationally construed as Chabot telling Mi-
eses that, although he was being terminated, Respondent would
not contest his receipt of unemployment insurance benefits.
Subsequent to this conversation, the Union filed its charge
asserting that Mieses’ discharge was unlawful, which charge
was served on Respondent on November 4. Sometime thereaf-
ter, Respondent notified the Department of Labor that Mieses
had been discharged for threatening to “kill” a coworker.
In that regard, Respondent argues that there is no evidence
that Respondent knew of Mieses’ charge at the time it prepared
its response. I disagree. The evidence does disclose that Mi-
eses filed his initial claim on November 4, the same day that the
charge was served on Respondent. While the record does not
disclose when the Department of Labor sent its form to Re-
spondent to fill out, or when Respondent in fact did respond, it
is reasonable to conclude, which I do, that a number of days
passed between November 4 and Respondent’s sending in its
response.
Moreover, Chabot’s remark to Mieses, during their second
conversation, wherein Chabot admitted in effect that Respon-
dent had contested his claim because he went to the National
Labor Relations Board, is significant evidence that in fact Re-
spondent knew about the charge when it responded to the De-
partment of Labor.
Chabot’s statement is of course, as noted a substantial ad-
mission that the charge was responsible for Respondent’s deci-
sion to contest Mieses’ claim. Therefore I conclude that the
General Counsel has established that protected conduct of Mi-
eses was a motivating factor in such decision by Respondent.
The burden then shifts to Respondent to establish that it
would have taken the same action, absent Mieses’ protected
conduct. Since Respondent has adduced absolutely no evidence
from any witness as to who, when or why it made the decision
to contest Mieses’ claim, it has therefore failed to meet its bur-
den of proof.
Rather, Respondent has made several arguments which I
construe as more or less public policy contentions, which it
asserts warrant dismissal of this complaint allegation. Thus it
contends initially that there is no evidence that it was aware of
Mieses’ “lie” to the DOL, and that in any event all it was doing
was telling the truth to the DOL by informing the DOL of why
it decided to terminate Mieses. Therefore, Respondent asserts
that it is “incomprehensible” for the General Counsel to be
claiming that Respondent committed an unfair labor practice by
not lying to the DOL, as Mieses had previously done.
While these arguments by Respondent do have some surface
appeal, in my judgment they do not preclude finding of a viola-
tion here. Although it is true that Respondent may not have
known what Mieses had told the DOL about his termination, it
certainly had to have been aware that telling the DOL that Mi-
eses was terminated for threatening to “kill” a coworker would
not be helpful to Mieses in obtaining his unemployment. In-
deed, it is notable that Respondent rather than simply telling the
truth to the DOL as Respondent contends, exaggerated its pur-
ported reason for discharge, by stating that Mieses threatened to
“kill” a coworker, while in fact he only threatened to stab Wil-
liamson.
More importantly, Respondent could simply have ignored
the DOL inquiry and not sent back any response to the DOL
request. Respondent argues in that regard that New York Labor
Law Section 575(2) compels Respondent to respond or else it
would be subject to a financial penalty by the Commissioner of
Labor. However, Respondent has adduced no evidence that it
made any decision or took any action based on this section of
the law. Indeed, since it adduced no evidence of who or why
the decision was made to respond as it did to the DOL, there is
no record evidence as to why it simply did not respond to the
DOL inquiry.
In this connection, I also note that the failure of Respondent
to call the decision maker (i.e., the person or persons who de-
cided on Respondent’s course of action with respect to Mieses’
unemployment claim), to explain why Respondent acted as it
did, gives rise to an adverse inference, which I find it appropri-
ate to draw, that such testimony it offered would not have been
favorable to Respondent’s case. United Parcel Service Corp.,
321 NLRB 300 fn. 1, 308–309 fn. 21 (1996); Reddy Mix Con-
crete Co., 317 NLRB 1140, 1143 fn. 16 (1995); Kut Rate Kid &
Shop Kwik, 246 NLRB 107, 121 (1979); Dorn’s Transportation
Co., 168 NLRB 457, 460 (1967), enfd. in pertinent part 405
F.2d 712, 713 (2d Cir. 1969). Therefore the failure of Respon-
dent to call such witnesses further supports my finding of
unlawful motivation.
Respondent also makes another argument in an attempt to
give a positive “spin” to Chabot’s remarks. Thus it asserts that
even if it knew of Mieses’ charge at the time of its response to
the DOL, “then the Partnership would have known that it would
have to explain to the Board that Mr. Mieses was discharged
because of his threat to stab Mr. Williamson. The Partnership
could not, then, present contrary evidence to the local unem-
ployment office concerning the reason for Mr. Mieses’ dis-
charge, even if the Partnership was inclined to conspire with
Mr. Mieses to provide consistent, albeit false information to the
local unemployment office. Once Mr. Mieses filed his unfair
labor practice charge, the Partnership’s hands were tied—it had
to tell the truth.” “However, these arguments suffer from sev-
eral defects. First, as I have indicated above Respondent did not
produce the decision maker, so the record contains no evidence
that Respondent made its decision, because as the brief asserts,
“its hands were tied,” and it could not present “contrary evi-
dence” to the DOL. Second, as also noted above, it could sim-
ply have failed to respond to the DOL inquiry, thereby obviat-
ing any possible conflict between its defense to the ULP charge
and its response to the DOL. Third, such a contention by Re-
spondent, even if found to be supported by record evidence
would not be helpful to its defense. Thus Respondent must
establish that it would have taken the same action absent Mi-
eses’ protected conduct. That burden cannot be met by the find-
ing urged by Respondent, since it is in fact an admission that
the filing of the charge with respect to Mieses’ discharge,
caused Respondent to take a different position. Thus it cannot
argue that it would have contested the unemployment claim
absent Mieses’ protected conduct.
Finally, it must be noted that “the approach to Section
8(a)(4) has generally been a liberal one in order to fully effec-
tuate the section's remedial purpose.” AA Electric, supra at
124, cited in General Services, Inc., 229 NLRB 940, 941
(1977). In that connection the Board has found violations of
Section 8(a)(4) of the Act in a number of cases similar to the
instant situation. Baddour, Inc., 281 NLRB 546, 547 (1986)
(violation for employer to cause the stoppage of employee’s
workmen’s compensation); Clark & Hinojasa, Attorneys at
Law, 247 NLRB 710 (1980) (employer’s refusal to pay termi-
nated employee additional salary, which it had promised to do,
GRAND CENTRAL PARTNERSHIP 979
because she threatened to complain to the Board, violative of
Section 8(a)(4); Manuel San Juan Co., 211 NLRB 812, 818–
819 (1974) (refusal to grant severance to employee as required
by law of the State because employee filed charge violative of
Sec. 8(a)(4) of the Act). See also General Services, supra (re-
fusal to rehire supervisor who filed an 8(a)(3) charge which
was dismissed because of his supervisory status, because he
filed such charge, violative of Section 8(a)(4).
Accordingly, I conclude based on above described analysis
and precedent, that Respondent has violated Section 8(a)(4) of
the Act by contesting Mieses’ unemployment compensation
claim.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening its employees with discharge, layoff, sub-
contracting, or other loss of employment because of their sup-
port for the Union and/or if they became represented by the
Union, informing or implying to its employees that it would be
futile for them to select the Union as their collective-bargaining
representative, and by promising its employees’ benefits and
improvements in their terms and conditions of employment if
they withdraw their support from the Union, and/or if they do
not select the Union as their collective-bargaining representa-
tive, Respondent has violated Section 8(a)(1) of the Act.
4. By discharging and refusing to reinstate its employee Paco
Mieses because of his activities on behalf of/ and support of the
Union, and because he testified at a National Labor Relations
Board hearing Respondent has violated Section 8(a)(1), (3), and
(4) of the Act.
5. By contesting the unemployment insurance benefits of
Paco Mieses, because a charge was filed on his behalf by the
Union. Respondent has violated Section 8(a)(1) and (4) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not violated the Act in any other manner
as alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent discriminatorily discharged
Paco Mieses, I shall recommend that Respondent offer him
immediate and full reinstatement to his former job or a substan-
tially equivalent position without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the discrimination
against him. All backpay provided shall be computed with in-
terest on a quarterly basis in the manner prescribed by the
Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and with
interest computed in the manner and amount prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]