Igramo Enterprise, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 2007

351 N.L.R.B. 1337 (N.L.R.B. 2007)

IGRAMO ENTERPRISE
351 NLRB No. 99
1337
Igramo Enterprise, Inc. and Orce Frias and Gustavo
Betancourth.1 Cases 29–CA–27247 and 29–CA–
27320
December 28, 2007
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
The principal issue in this case concerns the employee
status of the New Jersey drivers who work for the Re-
spondent, Igramo Enterprise, Inc. (Igramo).2 We affirm,
for the reasons explained by the judge, the judge’s find-
ing that the drivers at issue here are employees and not
independent contractors.3 However, we reverse the judge

1 We have amended the caption to reflect the correct spelling of the
Respondent’s and the Charging Parties’ names.
2 Administrative Law Judge Raymond P. Green issued his attached
initial decision on September 15, 2006. Both the Respondent and the
General Counsel filed exceptions and supporting briefs, and the Re-
spondent filed an answering brief. On June 12, 2007, the Board re-
manded a portion of the case to the judge to make additional credibility
determinations and factual findings on the issue of whether the Re-
spondent unlawfully discharged driver Orce Frias for engaging in pro-
tected concerted activities. On June 29, 2007, the judge issued his
attached supplemental decision. The General Counsel filed exceptions
to the supplemental decision and a supporting brief, and the Respon-
dent 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 initial and supplemental decisions and
the record in light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions only to the extent
consistent with this Supplemental Decision and Order.
3 We agree with the judge that, although there are some factors pre-
sent that might support a finding of independent contractor status, they
are outweighed by other factors establishing that the drivers are statu-
tory employees. The two cases cited by Igramo to support its inde-
pendent contractor argument, Argix Direct, Inc., 343 NLRB 1017
(2004), and St. Joseph News-Press, 345 NLRB 474 (2005), are readily
distinguishable. To begin with, in both of those cases the parties had
written operating agreements that gave the individuals substantive
control over the means and manner of performing their work and ex-
pressly indicated the parties’ intentions to create an independent con-
tractor relationship. Igramo, by contrast, has no written agreements or
contracts with its drivers. And, unlike here, in Argix, the drivers could
elect not to work, without penalty, and could thereby take on work for
other companies; were assigned to general geographic areas with vary-
ing daily assignments and could increase their income by adding extra
pickups; and independently controlled the order that deliveries were
made within the broad window periods set up by the client customers.
Additionally, several of the Argix drivers were incorporated as inde-
pendent companies and/or owned several trucks and hired their own
drivers; here, none of Igramo’s New Jersey drivers are incorporated or
employ other drivers. In St. Joseph News-Press, the newspaper carriers
at issue had proprietary rights to purchase, sell and deliver newspapers
that they bought at wholesale prices and sold at retail to customers in a
geographic area; Igramo’s drivers have no proprietary rights to their
routes. The St. Joseph News-Press carriers could independently change
the order of deliveries, disregard customer delivery requests and refuse
to deliver to particular customers, and increase their income by solicit-
ing new customers and/or delivering products for other companies
and find, for the reasons that follow, that Igramo unlaw-
fully discharged driver Orce Frias because of his pro-
tected concerted activities. Unless otherwise stated, we
affirm the remainder of the judge’s rulings, findings,4
and conclusions.5
I.
Igramo is a courier company that has a contract with a
laboratory to pick up and deliver laboratory specimens
from various veterinary facilities. Orce Frias started
working as a driver for Igramo in 2001.
In August 2005,6 Frias joined several other drivers in
signing a petition presented to Igramo’s president, Grace
Moya, requesting a pay increase to cover increased gaso-
line costs. Frias testified, without challenge, that during
the following month he attempted on several occasions to
reach Moya in order to arrange a followup meeting with
the employees.7 Although he was unsuccessful in reach-
ing Moya, he did speak with Igramo managers, Gildardo
Ortiz and Markles Rosado, and informed them of the
purpose of his calls. As the judge further found, when a
meeting finally took place on October 15, it was Frias
who first welcomed Moya and attempted to introduce the
subject of the meeting. At that point, Moya summarily
cut him off and started talking directly to the whole
group of employees (including Frias), who jointly ex-

while delivering papers. Igramo’s drivers have no comparable author-
ity or power.
Although Member Liebman dissented in St. Joseph News-Press, she
agrees with her colleagues that this case is distinguishable on its facts.
4 We affirm the judge’s finding that Respondent Igramo violated
Sec. 8(a)(1) of the Act by taking work away from employee Gustavo
Betancourth because he engaged in protected concerted activities. In
the absence of exceptions, we also affirm the judge’s findings that
Igramo unlawfully threatened employees with discharge, stated that
those who were dissatisfied could find other work, and threatened plant
closure.
We find it unnecessary to address the General Counsel’s exception
to the judge’s failure to find that Igramo’s president unlawfully threat-
ened employees with “unspecified reprisals,” since the remedy for such
a violation would be encompassed by our attached Order.
The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance 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.
5 We shall revise the Order to include the Board’s traditional remedy
requiring Igramo to remove from its files all references to its unlawful
conduct towards Betancourth and Frias and to inform them in writing
that it has done so.
6 Unless otherwise stated, all subsequent dates refer to 2005.
7 Although the judge found that only Betancourth requested the
meeting with Moya, Igramo admitted in its answer to the complaint that
both “Frias and Betancourt [sic] requested a meeting with Moya to
discuss an increase in the fees charged for services and the cost of
gasoline and other issue.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1338
pressed their desire for greater workplace benefits and
questioned the assertion that they were independent con-
tractors. In response, Moya told the employees that they
could always get other jobs if they wanted employee
status and benefits. Igramo’s accountant also threatened
that the business would likely close if the employees
pressed such claims with the Department of Labor.
One week after this meeting, Moya fired Frias. Three
days later, Moya unlawfully reassigned Betancourth’s
night route to another employee.8 On at least two occa-
sions in the next 6 weeks, Moya warned Betancourth that
he and the other employees would lose their jobs if they
continued to engage in protected concerted activities.
In his initial decision, the judge concluded that Igramo
discharged Frias for cause and not because he engaged in
protected activities. In his view, Igramo “reasonably
could have made the decision that Frias was not perform-
ing his job properly and should be dismissed” because
Frias failed to make two separate pickups in the previous
month after having been warned several months earlier.
Finding the judge’s analysis insufficient under Wright
Line,9 we remanded this part of the case, requesting that
the judge make additional findings needed to fully evalu-
ate the General Counsel’s arguments that animus toward
Frias’ protected activities was a contributing factor in his
discharge, that Igramo’s proffered defense was pretex-
tual, and that Igramo failed to meet its rebuttal burden to
establish that it would have discharged Frias even in the
absence of his protected conduct and not just, as the
judge found, that it “reasonably could have” done so
(emphasis added).10
In his supplemental decision, the judge reaffirmed his
finding that Frias was discharged for cause and not for
his protected activities, concluding that the evidence was
“wholly lacking to show any reason why [Moya] would
have wanted to retaliate against Frias who played no role

8 Betancourth previously drove a day route and a night route and was
paid separately for each. Although he thereafter continued to drive his
day route, the loss of the night route cost him $135 weekly.
9 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
10 Under Wright Line, “[a]n employer cannot simply present a le-
gitimate reason for its action but must persuade by a preponderance of
the evidence that the same action would have taken place even in the
absence of the protected activity.” W. F. Bolin Co., 311 NLRB 1118,
1119 (1993), petition for review denied 70 F.3d 863 (6th Cir. 1995),
enfd. mem. 99 F.3d 1139 (6th Cir. 1996). Accord: Weldon, Williams &
Lick, Inc., 348 NLRB 822, 826 (2006); National Steel Supply, Inc., 344
NLRB 973, 974 (2005), enfd. 207 Fed. Appx. 9 (2d Cir. 2006). Nor is
“[a] judge’s personal belief that the employer’s legitimate reason was
sufficient to warrant the action taken . . . a substitute for evidence that
the employer would have relied on this reason alone.” Hicks Oils &
Hicksgas, 293 NLRB 84, 85 (1989), enfd. 942 F.2d 1140 (7th Cir.
1991); Delta Gas, 282 NLRB 1315, 1317 (1987).
in the October 15 discussions and who otherwise had no
unique role in shaping the original employee demand
regarding gasoline prices.” He further opined that “even
if I were persuaded (which I am not) that the General
Counsel presented sufficient evidence to show that ‘a’
reason for Frias’ discharge was because of his alleged
protected concerted activity (or because the Respondent
thought he had engaged in such activity), I would never-
theless find that the Respondent had, in fact, discharged
him for reasons unrelated to those activities, but rather
because of his failure to properly perform his job du-
ties.”11
II.
We find the judge’s supplemental decision, like his
first, analytically flawed. In reaching the finding that
Frias’ discharge was not unlawfully motivated, the judge
failed to give adequate consideration to the protected
nature of Frias’ activities (irrespective of whether Frias
was a leader in those activities), to Igramo’s contempo-
raneous 8(a)(1) violations, to the timing of the discharge,
and to several countervailing facts that undermined
Igramo’s affirmative defense. Having reviewed the re-
cord, and giving due consideration to all the facts, we
reverse and find a violation.
Under Wright Line, the General Counsel has the bur-
den of proving by a preponderance of the evidence that
an employee’s protected conduct was a motivating factor
in the adverse employment action. This burden is met by
showing (1) that the employee was engaged in protected
activity, (2) that the employer had knowledge of that
activity, and (3) that the employer had animus towards
such activity. Once this is accomplished, the burden of
persuasion shifts to the employer to prove that it would
have taken the same action even if the employee had not
engaged in the protected conduct. North Carolina Pris-
oner Legal Services, 351 NLRB 463, 466 (2007); North
Carolina License Plate Agency #18, 346 NLRB 293, 293
(2006), enfd. per curiam 243 Fed. Appx. 771 (4th Cir.
2007). Unlike the judge, we find that the General Coun-
sel carried his initial burden.
That Frias engaged in protected activity—by partici-
pating in the signing of the petition and by his presence
at the October 15 meeting—and that Igramo was aware

11 On remand, the judge discredited Frias’ testimony that Igramo’s
supervisor, Markles Rosado, admitted that he was discharging Frias
because Frias was considered a “leader of all this mess” (referring to
the employees’ concerted activities). The judge found the corroborat-
ing testimony of Betancourth to be “mistaken.” We find it unnecessary
to reach the General Counsel’s exceptions to these findings because, as
explained below, we conclude that the other record evidence is suffi-
cient to establish unlawful motive without regard to whether this state-
ment was made.
IGRAMO ENTERPRISE 1339
of that activity are not open to serious debate. Joining in
the “presentment of grievances by a group of employees
to their employer constitutes a concerted activity which
[S]ection 7 of the Act was designed to protect.” NLRB v.
Sequoyah Mills, Inc., 409 F.2d 606 (10th Cir. 1969); see
Bethlehem Temple Learning Center, 330 NLRB 1177,
1177–1178 (2000) (employee joint complaints to man-
agement and discussions about noncompete agreement
protected); Liberty Natural Products, 314 NLRB 630
(1994), enfd. 73 F.3d 369 (9th Cir. 1995) (signing peti-
tion constitutes protected concerted activity).
As to animus, we find the unlawful threats to employ-
ees and the timing of Frias’ discharge sufficient to meet
the General Counsel’s threshold burden under Wright
Line. It is evident that Moya was disconcerted by the
employees’ expanded demands at the October 15 meet-
ing. As the judge found, the employees’ newly raised
demands for additional benefits as well as the dispute
over independent contractor status was what “tipped the
apple cart” and raised Moya’s ire. Moya herself testified
that she was “shock[ed] about everything they were tell-
ing me or they were asking me because I never expected
this from them.” She responded by telling the employees
that they could look for jobs elsewhere and warning that
anyone signing the employee petition “would have dras-
tic consequences.” She repeated these threats on at least
two subsequent occasions. “Threats to eliminate the em-
ployees’ source of livelihood have a devastating and lin-
gering effect on employees. . . . An inference may be
drawn from the animus behind such threats, which the
discharge would gratify, that the animus was the true
reason for the discharge.” Vico Products Co., 336 NLRB
583, 588 fn. 16 (2001) (quoting Reno Hilton, 320 NLRB
197, 209 (1995) (citations omitted)), enfd. 333 F.3d 198
(D.C. Cir. 2003).
It is also significant that Moya discharged Frias 1 week
after the meeting where she and Carrera made unlawful
threats, and 3 days before unlawfully retaliating against
Betancourth. The timing of an employer’s action can be
evidence of unlawful motive. See, e.g., Howard’s Sheet
Metal, Inc., 333 NLRB 361 (2001) (discriminatory dis-
charge of another worker a factor to consider in weighing
the contemporaneous discharge of a second coworker,
who engaged at the same time in the same prounion ac-
tivity); Davey Roofing, Inc., 341 NLRB 222, 223 (2004)
(timing of layoffs the day after union rally and the same
day union petition received indicates unlawful motiva-
tion); La Gloria Oil & Gas Co., 337 NLRB 1120, 1124
(2002) (discharge of two employees a few days after
unlawful threats of job loss and interrogations found to
be evidence of unlawful motive), enfd. 71 Fed. Appx.
441 (5th Cir. 2003).
In concluding that Frias’ discharge was not unlawfully
motivated, the judge relied heavily on his finding that
Frias played no role in the October 15 discussion and on
his observation that other, more vocal, employees were
not retaliated against. This reliance was misplaced. To
begin with, the judge was incorrect in finding that Frias
played no role in the October 15 meeting. It is undis-
puted that Frias was one of two employees (Betancourth
being the other) who contacted management specifically
to set up the meeting. And it was Frias who welcomed
Moya to the meeting on behalf of all the employees and
who attempted to explain its purpose, until Moya sum-
marily cut him short.12 If anything, we find it more
likely that Igramo viewed Frias as an instigator and not
just an extraneous bystander, as the judge found. We
therefore reject the judge’s inference that Igramo had no
reason to single out Frias for retaliation as opposed to
other employees who spoke up at the meeting.
Moreover, contrary to the judge’s implication, it was
not necessary for the General Counsel to show that
Igramo held particular animus toward Frias. By threat-
ening the group of employees with shutdown and job
loss because of their protected activity, Igramo mani-
fested its animus toward all of them, including Frias.
See, e.g., La Gloria Oil & Gas Co., supra at 1123–1124
(evidence that employer held “animus toward the Union
. . . sufficient to support a finding that this animus played
a role in the discharge”); Senior Citizens Coordinating
Council, 330 NLRB 1100, 1105 (2000) (the General
Counsel’s burden met where employer knew employee
engaged in protected activity with other employees, ex-
hibited animus towards activity, and discharged em-
ployee 2 days later); see also Pan-Oston Co., 336 NLRB
305, 308 (2001); Key Food, 336 NLRB 111, 113 (2001);
Montgomery Ward & Co., 316 NLRB 1248, 1254
(1995), enfd. 97 F.3d 1448 (4th Cir. 1996).
That the Respondent took no action against other par-
ticipants at the meeting (except for Betancourth) also is
not outcome determinative, for “a discriminatory motive,
otherwise established, is not disproved by an employer’s
proof that it did not weed out all union adherents.”
Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir.
1964); see, e.g., Clark & Wilkins Industries v. NLRB, 887
F.2d 308, 316 fn. 19 (D.C. Cir. 1989), cert. denied 495
U.S. 934 (1990); NLRB v. Centra, Inc., 954 F.2d 366,
374 (6th Cir. 1992). In any event, it is reasonable to in-
fer that Igramo ultimately set its sights on Frias because

12 Moya also testified that when she first met with the employees,
she expressed concern about the meeting location, and that it was Frias
who suggested and led everyone to an alternative location.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1340
he was the only driver, other than Betancourth, who gave
it a plausible-sounding excuse to act on its threats.13
The evidence discussed above fully meets the General
Counsel’s Wright Line burden to establish that Frias was
engaged in protected activities, that Igramo was aware of
his activities, and that Igramo held animus towards such
activities. It became incumbent, then, on Igramo to es-
tablish by a preponderance of the evidence that Frias’
discharge would have taken place even in the absence of
his participation in protected conduct. E.g., Metropolitan
Transportation Services, 351 NLRB 658, 660 (2007),
citing Roure Bertrand Dupont, Inc., 271 NLRB 443, 443
(1984). To this end, Igramo’s evidentiary burden is not
met by “showing merely that [it] had a legitimate reason
for its action.” Id.
Igramo asserts that it discharged Frias solely because
he failed to call in or to pick up lab specimens from Gar-
den State Hospital on August 27 and October 14.14 Al-
though the General Counsel disputes whether these pick-
ups were required, we find it unnecessary to reach that
question. Even assuming that Frias improperly failed to
make these pickups, the preponderance of the evidence
does not support Igramo’s contention that he would have
been discharged for this reason alone.
To begin with, Igramo’s supporting evidence is con-
tradictory at best. Moya first testified that she decided to
terminate Frias on October 22, the same day he was dis-
charged by Rosado. When later asked why she waited a
week to do so, she contradicted her earlier testimony,
saying that she decided the matter on October 14, but
waited a week to find a replacement driver. Still later,
she testified that while she “didn’t want to do it” (refer-
ring to the discharge), she felt she had no choice after the
lab’s representative, Jack Buckley, called and asked that
something be done because he was tired of the missed
pickups. Buckley’s call, however, did not occur until
sometime after October 15. Further, Buckley, whom the
judge found to be a credible disinterested witness, testi-
fied that he never asked that the driver be sanctioned, let
alone discharged.15 Similarly, Moya testified that Buck-
ley’s principal concern was the missed pickups at Garden
State Hospital, which Moya described as a “hot” or
“good” account and one she was concerned about losing.

13 We do not view it as coincidental that Igramo similarly used the
opportunity presented by Betancourth’s complaint about the amount he
was paid for the night route as a reason to unlawfully take away that
route.
14 The uncontested documentary evidence establishes that the initial
pickup failure date was August 27, not September 26, as the judge
found.
15 Moya admits that she never actually spoke with Buckley about
this matter. Geraldo Ortiz, who spoke with Buckley and was Frias’
immediate supervisor, did not testify.
Buckley’s testimony again contradicts hers. According
to Buckley, the lab’s main concern was not about the
failed pickups at Garden State Hospital, which Buckley
did not view as “a real big account,” but rather about a
purported refusal by Frias to do a pickup at Foster Hospi-
tal on October 15. On this point, however, Igramo’s Su-
pervisor Rosado admitted that Frias actually had made
the October 15 pickup.
In light of these contradictions and inconsistencies, it
is particularly telling that Moya never gave Frias any
opportunity to defend himself, and made no apparent
effort to confirm the relevant facts with Rosado or Ortiz
before deciding to fire him. See La Gloria, supra, 337
NLRB at 1124 (abruptness of discharge and failure to
give employees an opportunity to respond to allegations
support inference of pretext); Delta Gas, supra, 282
NLRB at 1317 (same); Service Technology Corp., 196
NLRB 1036, 1043 (1972) (same).
It is also relevant that Buckley testified that he called
Igramo on other occasions to complain about problems
with other routes and with “a lot of drivers . . . it’s not
just one, two or three.”16 Yet Igramo presented no evi-
dence to show what, if any, standards or procedures it
had in place to address poor work performance by driv-
ers generally. Cf. Bronco Wine Co., 256 NLRB 53, 54–
55 (1981) (employer failed to present evidence as to the
standards or procedures it applied in discharging em-
ployees for poor work performance).
The judge gave substantial weight to the fact that Frias
was warned in March that he would be given “one more
chance” and told that “the next time you’re gone.” We
find the judge’s emphasis unwarranted. When the “next
time” occurred, Igramo did nothing. Thus, although both
Moya and Rosado admittedly were aware that Frias
failed to make the August 27 pickup,17 there is no evi-
dence that either even discussed following through on the
March “last chance” warning. Nor is there any evidence,
other than Moya’s self-serving and contradictory state-
ments, that Igramo had any intention of implementing
the earlier discharge warning when, 6 weeks later, on
October 14, Moya and Rosado learned that Frias had
again failed to make a pickup. It was not until after Frias
participated in the October 15 concerted activities that
Igramo took any action. Cf. Senior Citizens Coordinat-

16 Moya denied that these calls were made or that Igramo ever re-
ceived complaints about any of its other drivers. The judge, while not
addressing this evidentiary conflict, found Buckley to be a credible
witness based on his demeanor. By contrast, he found the testimony of
Moya concerning the October 15 meeting “not particularly reliable”
and credited her only where her testimony was corroborated by Buck-
ley. In the circumstances, we do not credit Moya’s denial.
17 Moya noted it in her office calendar that same day, and Rosado
testified that he spoke with Frias about it at the time.
IGRAMO ENTERPRISE 1341
ing Council of Co-Op City, 330 NLRB 1100, 1106 fn. 19
(“delay in taking adverse action until after there is
knowledge of [protected] activity evidences Respon-
dent’s unlawful motivation”), quoting Holsum Bakeries
of Puerto Rico, 320 NLRB 834, 837 (1996), affd. mem.
107 F.3d 922 (D.C. Cir. 1997), cert. denied 522 U.S. 817
(1997).
The General Counsel argues that Igramo’s reliance on
the failed pickups is pretextual. In our view, the facts set
forth above could support such a conclusion, but we need
not resolve this question. For whether or not reliance on
Frias’ failure to make the two pickups was pretextual, we
conclude that Igramo failed to establish by a preponder-
ance of the evidence that the two failed pickups at Gar-
den State Hospital alone would have led to discharge
even absent Frias’ participation in protected activities.18
Accordingly, we find that Igramo violated Section
8(a)(1) of the Act by discharging Orce Frias because he
engaged in protected concerted activities.
AMENDED REMEDY19
Having found that Igramo unlawfully discharged Orce
Frias, it must offer him reinstatement to his former posi-
tion and route, or if that position or route no longer ex-
ists, to a substantially equivalent position and route and
make him whole for any loss of earnings or other bene-
fits, computed on a quarterly basis, from the date of dis-
charge to date of proper offer of reinstatement, less any
interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Igramo Enterprise, Inc., New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees, or telling them that they
could resign, because of their protected concerted activi-
ties.

18 As we explained in Wright Line, “we will not seek to quantita-
tively analyze the effect of the unlawful cause once it has been found.
It is enough that the employees’ protected activities are causally related
to the employer action which is the basis of the complaint. Whether
that ‘cause’ was the straw that broke the camel’s back or a bullet be-
tween the eyes, if it were enough to determine events, it is enough to
come within the proscription of the Act.” 251 NLRB at 1089 fn. 14;
accord: Bronco Wine Co., supra at 54 fn. 8.
19 We also correct the judge’s remedy with respect to Betancourth to
reflect that the make-whole portion is to be computed from the date that
he ceased doing his night route to the date of a proper offer of rein-
statement of this route.
(b) Telling employees that if they send a wage com-
plaint to the Department of Labor, the Company could be
destroyed or go out of business.
(c) Taking away routes from employees and thereby
reducing their earnings because of their protected con-
certed activity.
(d) Discharging employees because of their protected
concerted activity.
(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.
(a) Within 14 days from the date of this Order, offer
Gustavo Betancourth full reinstatement to all routes he
had as of October 15, 2005.
(b) Make Gustavo Betancourth whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, offer
Orce Frias full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(d) Make Orce Frias 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 amended
remedy section of this decision.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful removal of
the night route from Gustavo Betancourth and to the
unlawful discharge of Orce Frias, and within 3 days
thereafter notify Frias and Betancourth, in writing, that
this has been done and that Frias’ discharge and Betan-
courth’s loss of his night route will not be used against
them in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facilities in New York, New York, copies of the at-
tached notice marked “Appendix.”20 Copies of the no-

20 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1342
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not 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 these proceedings, or sold the business or
the facilities involved herein, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since October 15, 2005.
(h) 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten our employees, or tell them that
they could resign, because of their protected concerted
activities.
WE WILL NOT tell our employees that if they send wage
complaints to the Department of Labor, the Company
could be destroyed or go out of business.
WE WILL NOT discharge employees, or take routes
away from them and thereby reduce their earnings, be-
cause they join other employees in asking for increased
wages and benefits.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Gustavo Betancourth full reinstatement to all
routes he had as of October 15, 2005.
WE WILL, within 14 days from the date of the Board’s
Order, offer Orce Frias 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.
WE WILL make Gustavo Betancourth and Orce Frias
whole, with interest, for any loss of earnings and other
benefits suffered as a result of the discrimination against
them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful removal of the night route from Gustavo Betan-
courth and to the unlawful discharge of Orce Frias, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that our unlawful conduct
will not be used against them in any way.
IGRAMO ENTERPRISE, INC.
Nancy K. Reibstein, Esq., for the General Counsel.
David H. Singer, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York on various days from March 21 to April
26, 2006. The charge in Case 29–CA–27247 was filed by Frias
on October 31, 2005, and the charge in Case 29–CA–27320
was filed by Betancourth on December 13, 2005. The consoli-
dated complaint was issued on January 26, 2006, and alleged as
follows:
1. That on or about August 12, 2005, various employees in-
cluding Frias and Betancourth sent a petition to the Respondent
regarding a demand for a wage increase.
2. That in or about October 2005, Frias and Betancourth by
telephone and in person, requested a meeting with Grace Moya,
Respondent’s owner, in order to discuss a wage increase and
other benefits.
3. That on or about October 15, 2005, employees of the Re-
spondent, including Frias and Betancourth, demanded a wage
increase and other benefits in a meeting with Moya.
4. That in October 2005, and also on or about October 17,
2005, the Respondent by Moya (a) threatened employees with
unspecified reprisals, (b) solicited employees to resign, and (c)
threatened employees with discharge.
5. That on or about October 15, 2005, the Respondent by
Pedro Carrera threatened employees with plant closure.
6. That on or about October 17, 2005, the Respondent, for
discriminatory reasons, reduced Betancourth’s work by taking
away his evening route.
IGRAMO ENTERPRISE 1343
7. That on or about October 22, the Respondent, for dis-
criminatory reasons, discharged Frias.
8. That on or about October 22, 2005, the Respondent by
William Aspiazu, threatened employees with discharge because
of their protected concerted activities.
9. That on or about November 30, 2005, the Respondent, by
Moya, threatened employees with discharge because of their
protected concerted activities.
10. That on or about December 5, 2005, the Respondent by
Moya threatened employees with plant closure.
Apart from denying the substantive allegations of the com-
plaint, the Respondent claims that the drivers who work for the
Company are independent contractors and not employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Employer is engaged in
commerce as defined in Section 2(6) and (7) of the Act.
II. THE STATUS OF THE DRIVERS
In BKN, Inc., 333 NLRB 143 (2001), the Board listed a
number of factors to be taken into account. These include: (a)
The extent of control that the employing entity exercises over
the details of work; (b) Whether or not the one employed is
engaged in a distinct occupation or business; (c) The kind of
occupation, including whether in the locality, the work is usu-
ally done under the direction of the employer or by a specialist
without supervision; (d) The skill required in the particular
occupation; (e) Whether the employer or the workman supplies
the instrumentalities, tools, and the place of work for the person
doing the work; (f) The length of time for which the person is
employed; (g) The method of payment, whether by the time or
by the job; (h) Whether or not the work is part of the regular
business of the employer; (i) Whether the parties believe they
are creating the relation of master and servant; and (j) Whether
the principal is or is not in business. [Restatement of the Law
of 220 Agency 2d, pp. 485–486.] See also NLRB v. United
Insurance Co. of America, 390 U.S. 254 (1968); Community for
Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
In Roadway Package System, 326 NLRB 842 (1998), and
Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998), the
Board reconsidered its standards for determining if an individ-
ual is a employee within the meaning of Section 2(3) or an
independent contractor. In Roadway, the Board stated:
[w]hile we recognize that the common-law agency test de-
scribed by the Restatement ultimately assesses the amount or
degree of control exercised by an employing entity over an
individual, we find insufficient basis for the proposition that
those factors which do not include the concept of “control”
are insignificant when compared to those that do. Section
220(2) of the Restatement refers to 10 pertinent factors as
“among others,” thereby specifically permitting the considera-
tion of other relevant factors as well, depending on the factual
circumstances presented. . . . Thus, the common-law agency
test encompasses a careful examination of all factors and not
just those that involve a right of control. . . . To summarize, in
determining the distinction between an employee and an in-
dependent contractor under Section 2(3) of the Act, we shall
apply the common-law agency test and consider all the inci-
dents of the individual’s relationship to the employing entity.
I also note that the burden of proof lies with the party assert-
ing that a person or persons are independent contractors. BKN,
Inc., supra at 144; Community Bus Lines, 351 NLRB 1076
(2007).
The Respondent is 1 among about 12 small companies that
are subcontractors to a company called Antech, which is lo-
cated in Long Island. Antech is a division of a larger company
that also owns animal hospitals, operates a laboratory that ana-
lyzes blood samples picked up from veterinarians and veteri-
nary hospitals. Antech’s geographic scope of operations runs
from Rhode Island to Florida.
Many years ago Antech utilized its own employees to pick
up these samples. But at some point about 10 to 12 years ago,
Antech decided to outsource this work to people, some of who
were its own drivers, who set up small courier companies.
Ignacio Moya, the founder of Igramo, was originally a driver
for Antech. Over time, he and another former Antech driver,
Gildardo Ortiz, took over an expanding number of routes from
Antech and started to hire a group of drivers to run these routes.
Gildardo Ortiz, along with Ignacio Moya, were the two people
who essentially ran this company.
At the time of these events (in 2005 and 2006), Ignacio
Moya had passed away and the business was taken over by his
wife, Grace Moya. She had no previous experience in this
business and to a large extent she relied on Gildardo Ortiz and
on her son and son-in-law, who also were in the business. Her
son is William Aspiazu and her son-in-law is Markles Rosado.
In 2006, the Respondent operated more than 30 routes. In
the New York/New Jersey area, these routes were in Brooklyn,
Manhattan, the Bronx, Westchester County, and New Jersey.
In addition, the Respondent has routes in Philadelphia and
southeast Florida. For the routes in the New York/New Jersey
area, these generally were done by a group of drivers who, with
a couple of exceptions, drove an assigned route or routes. In
the case of the Florida routes, the Respondent contracted with a
driver located in Florida who operated under a corporate name
and who, in turn, utilized a group of about 12 drivers to pick up
samples on those routes. At the end of the day, the blood sam-
ples from Florida were air shipped to New Jersey where a
driver from Igramo would pick up the samples and drive them
to Antech. In the case of the Philadelphia routes, these are
operated in essentially the same manner as the Florida routes
except that there are fewer of them. These routes have been
contracted to a man named David Schaeffer who has set up his
own little business and has hired a group of his own drivers
who collect blood samples. He has eight routes with eight
drivers. These samples are driven up to New Jersey each day
and are then collected and driven to Antech by one of the
Igramo drivers.
It should be noted that the drivers who are involved in this
case, including the alleged discriminatees, do only that. They
perform functions that are the essential part of the Respondent’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1344
business. They work exclusively for Igramo, on an at-will
basis, and generally do so on a 5 or 6 days per week basis.
There are no written contracts or any types of written docu-
ments such as a letter confirmation that memorializes the terms
and conditions under which the drivers work. Many of the
drivers have worked for Igramo for many years and therefore
have longstanding exclusive relationships with the Respondent.
Because of the time constraints involved, drivers cannot of-
fer their services to any other persons during the time that they
perform services for Igramo. They simply drive along a prede-
termined course, pick up blood samples along the way and
deliver them to a central point in New Jersey where they are
aggregated and driven by another person to Antech’s Long
Island laboratory.
The routes are essentially determined by Antech and are
based on geography and time. That is, when Antech makes a
contract with a doctor or hospital, it arranges for a suitable time
to pick up the samples in relation to that person’s geographic
location. The result is that Antech, and sometimes in conjunc-
tion with the Respondent, sets up a route by which a driver will
go from point A to point B to point N over a predetermined
route so that the driver will arrive at the time that Antech and
its customer have arranged for the pick up. Although a driver
may have some leeway in choosing one street over another, the
basic route, in terms of the sequence of pickups and the times
that the pickups have to be made, is not within the driver’s
control. Nor may a driver change the places or persons from
whom he may make pickups. He can’t drop a pickup or make
arrangements with some else to make some kind of pickup or
delivery to that person while on the route.
Antech is the entity that sells the service to doctors and hos-
pitals. Neither Igramo nor its drivers have anything to do with
this. If Antech contracts with a new doctor or if an animal
hospital drops its services, Antech’s traffic department, perhaps
in conjunction with the people in Igramo’s management, are the
ones who will modify the routes. The drivers have absolutely
no say in that process. In short, I cannot see how the drivers
have any control over what they do or how they do it. And
since what the drivers do is to simply drive along a predeter-
mined route, one cannot say that this entails any degree of skill
on their part. In a sense, this can be described as an outdoor
assembly line.
There are, nevertheless, a small number of drivers who, over
time, have made arrangements with Igramo to do multiple
routes and who have hired other drivers to do the extra routes.
At one end of the spectrum would be Annabelle Jost, Grace
Moya’s sister, who has three routes, one of which she drives
herself, one of which is driven by her husband and one of
which is driven by a third person. Another example would be
Danilo Garcia who has arranged with Igramo to do four routes
and has ceased driving himself while hiring four other people to
do these routes. (He makes a profit from the difference that he
gets paid by Igramo for the routes and the amounts that he pays
his drivers.) At the other end of the spectrum are the two indi-
viduals such as David Schaeffer and the man in Florida who
run their own little businesses with about 8 to 12 drivers. In
effect, they are to Igramo as Igramo is to Antech. Under Dial-
Mattress Operating Corp., 326 NLRB 884, 1998, these four
individuals might arguably be considered to be independent
contractors as they operate what amounts to minibusinesses,
where they hire their own employees to service the routes on a
regular basis and can derive a profit from their use of others. In
my opinion, however, the people found to be independent con-
tractors in Dial-Mattress Operating Corp. operated far more
independently than at least two of the four people mentioned
above. They had a great deal more control over their own op-
erations including the ability to refuse assignments and the
ability to perform services for other companies.
But these are the exceptions. And in my opinion, the excep-
tions do not make the rule. For the vast majority of the drivers
who perform services directly for Igramo, they are given routes
that they drive by themselves and they are paid on a route basis.
(They receive a certain amount per route.) They do not have
any particular skills and they are not responsible for the em-
ployment of others. These drivers have no say as to where they
go and when they are supposed to get there. And they have a
minimal degree of discretion in how they are to get there. They
have no ability to work for anyone else at any time that they
provide services for Igramo and have no opportunity to increase
their earnings by their own efforts. Moreover, the record shows
that the arrangement between the Company and the drivers is
entirely one sided, with the Company unilaterally establishing,
without any negotiations, the compensation that the drivers
receive. This was demonstrated when the drivers attempted, in
the autumn of 2005, to change their compensation in light of
increased gasoline prices. They were told by Moya that this
was not possible.
The Respondent claims that all of the drivers have the au-
thority to hire other drivers to operate their routes. But any
reasonable view of the evidence shows only that when the un-
exceptional driver gets ill or wants to take a vacation, he or she
can arrange for someone like a friend or relative to operate the
route in the driver’s absence. But even in that circumstance,
the prospective replacement will be interviewed by Gildardo
Ortiz and approved by him. The evidence shows that if a driver
gets ill or needs to leave on a temporary basis and can’t find
someone to replace himself, then the two or three people who
work in the Respondent’s office will pick up the slack and drive
the routes.
The Respondent showed that the drivers are paid on a route
basis and not on a salaried or hourly basis. The drivers are
given a 1099 tax form at the end of each year and no deductions
are taken out for Federal or State income taxes. Nor are any
deductions made for Social Security or Medicare. Igramo does
not make any payments to any State Unemployment agency
and does not provide for Workers’ Compensation Insurance.
The drivers are paid for their routes and do not have any other
employer paid benefits. All of the drivers own their own cars.
They are responsible for purchasing gasoline, their own insur-
ance and for making repairs to their vehicles. (Presumably they
deduct these expenses from their income when they submit
their tax filings.) If a driver, while making pickups, were to get
into an accident and injure another person, there would be an
interesting question as to who would be responsible for per-
sonal injuries. Apparently that hasn’t happened yet.
IGRAMO ENTERPRISE 1345
The Respondent argues that all of the above demonstrates
that the drivers in this case are independent contractors and not
employees. But in my opinion, these factors fall short of estab-
lishing that they are not employees. To the extent that the
Respondent has failed to make deductions for taxes, social
security and has failed to make payments for workers’ compen-
sation or for unemployment insurance, this does not establish
that these people are independent contractors. Community Bus
Lines, 341 NLRB 474 (2004); Houston Building Service, 296
NLRB 808 (1989). In my view, it merely demonstrates that the
Respondent is probably violating a substantial number of other
Federal and State laws in the way it is treating persons who
perform services exclusively for Igramo and who have no right
of control over the ends or means of their work. See Stanford
Taxi, 332 NLRB 1372, 1373 (2000); Community Bus, supra,
Houston Building, supra, Roadway Package System, 326 NLRB
842, 848–855 (1998).
III. THE ALLEGED UNFAIR LABOR PRACTICES
By the summer of 2005, gasoline prices had soared to new
highs. As the price of gas was a major component in the cost of
driving the routes, some of the drivers decided to ask Grace
Moya for an increase to cover this additional cost. Among the
people who were involved in the creation of a petition, were
Gustavo Betancourth, Orce Frias, Jaime Alarcon, Jose Roa,
Harold Gonzalez, Walter Barrera, and Annabelle Jost. The
latter two individuals were Moya’s brother-in-law and sister.
The evidence also shows to my satisfaction, that Moya was not
adverse to this petition and suggested to Harold Gonzalez (who
actually wrote the document), that it also be sent to Antech, as
that ultimately would be where any additional money would
have to come from. Indeed, General Counsel’s Exhibit 5 shows
that it was cc’d to Jack Buckley, the traffic manager for Antech.
This petition, as it deals with a request for an increase in pay,
should be considered to be protected concerted activity within
the meaning of Section 7 of the Act.
After sending the petition, Betancourth on several occasions,
tried to set up a meeting with Moya to discuss the petition. In
these conversations, Moya took the position that she could not
give the drivers any raises because they were independent con-
tractors and because she hadn’t gotten any more money from
Antech. Betancourth testified that during one conversation,
Moya said that if the drivers were not satisfied, why didn’t they
just resign and leave the company. He also testified that Moya
said that she had a Jewish lawyer and that the Labor Depart-
ment couldn’t touch her and that she was protected by God.
According to Betancourth, she said that if he kept it up, she was
going to fire him.
On Saturday, October 15, 2005, a group of drivers held a
meeting with Moya outside the A&R Hospital. Moya had
asked Pedro Carrera, her accountant, to accompany her and
speak to the drivers. Also in attendance were about 12 drivers,
including Betancourth, Frias, Roa, Annabelle Jost, and Jaime
Alarcon.
Betancourth testified that Frias welcomed Moya who said
that they had to work with love; that they had to work together
and if they did, everything would be resolved. Betancourth
states that Roa, seconded by Jaime Alarcon, said that they were
there because of the problem with the cost of gasoline. At
some point, a letter (GC Exh. 11), apparently typed up in prepa-
ration for this meeting, was given to Moya. It is unclear who
prepared this letter or who handed it to the Company.1 In any
event, there doesn’t seem to be any dispute that it was tendered
and that it read as follows:
The following issues are the ones we want to discuss
in the meeting to be held on the day and at the time agreed
by the parties.
1. Money increase for the high cost of gasoline
2. Pay for six (6) holidays
3. Vacations pay fifteen (15) days
4. Pay for canceled days due to snow
5. Sick days
6. Pay for the overcharge up to 20% or 30% for the
gasoline when we work with snow
7. Pay tolls to drivers who use it
8. Pay for sample picked up at each on of the new
hospitals
9. Recognize one payday as vehicle maintenance. In
case of an accident, the company must pay rent a car
charges
10. Show that drivers from other contractors earn
$1.50 per mile plus the pay of gasoline, plus the pay of
tolls. This is the base to negotiate
11. Raises
Betancourth states that Moya responded by saying that the
drivers could not get benefits because they were independent
workers. According to Betancourth, Moya’s sister, Annabelle
Jost, said that they were not independent drivers to which Moya
responded that if they wanted more money, they had to get
part-time jobs. According to Betancourth, Moya’s brother-in-
law said that they couldn’t work at any other jobs because there
was not enough time to drive and do a second job. Betancourth
testified that Moya introduced Carrera and said that he was the
accountant and knew all about the Company’s numbers. He
states that Carrera said that the drivers were independent work-
ers, that they had no legal rights to any benefits, and that the
Company could give them nothing.
Betancourth testified that when Moya declared the meeting
over, he spoke up and told her that they had come to the meet-
ing to resolve a problem and that they shouldn’t leave things
the way they were. Betancourth testified that he told her: “We
just want to get more money to be able to pay for the gasoline.”
Betancourth testified that he said that since the meeting had not
resolved anything, they would be obliged to send the letter to
the Department of Labor. At this point, according to Betan-
courth, Carrera got very agitated. Betancourth testified: “He
came right into my face and said how could it be possible that
you do this with us? If you people send this letter to the De-
partment of Labor they’ll close the company. Where’s the
gratitude you should show to the Company? The Company has
maintained you for more than 10 years. They’ve filled your
belly.” At this point, according to Betancourth, Moya said:

1 Carrera testified that it was Betancourth who handed the petition to
him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1346
“Now I know what’s happening. I have the petition. And
we’re going to meet. I’m going to call you one by one.”
Betancourth states that Moya said that “everyone who had
signed that letter was going to have drastic consequences.”
Orce Frias and Jose Roa testified about the October 15 meet-
ing and for the most part, their testimony corroborated Betan-
courth. For example, Frias testified that when Moya wanted to
end the meeting, it was Betancourth who said that he wanted to
reach an agreement and that if no agreement could be reached,
the drivers would send a letter to the Labor Department. Frias
testified that the accountant jumped up and said: “How can you
say that? You know that if the Labor Department comes to us,
they’ll destroy us.” Similarly, Roa testified that when Betan-
courth said that he was going to send a letter to the Labor De-
partment, the accountant said: “What are you going to do?
You’re going to destroy the company? Did you want to be out
of a job? And everybody going to lose; you’re going to lose
everything and you no going to have no job at all.”
Moya testified about the meeting and essentially denied that
she or Carrera made any threats to the drivers. The Respon-
dent, in a letter to the Region dated January 6, 2006, stated that
after Moya explained to the drivers that they were independent
contractors and that there was no method for paying for sick
time, holidays, etc., because her fees were fixed by Antech.
This letter also goes on to state that Moya, indicated that “the
subcontractors were free to perform services with anyone else
and if they wanted to, they could terminate their contract with
Igramo Enterprise, Inc.”
Carrera also testified about the meeting and similarly denied
that he or Moya made any threats. He did recall, however, that
Betancourth was “very pushy” at the meeting and that Betan-
courth did say that the drivers would go to the Department of
Labor.
With respect to the October 15 meeting, there are two things
that are apparent to me. First, except for a brief welcome by
Frias, he did not have anything else to say at this meeting. The
evidence shows that the principle people who spoke at the
meeting for the drivers were Gustavo Betancourth, Jaime Alar-
con, Jose Roa, Annabelle Jost, and Barrera. (The latter two
being relatives of Moya.) Second, the evidence shows that
although the meeting was originally set up to discuss gasoline
prices and the possibility of getting additional compensation to
make up for the cost increases, the driver’s demands, to the
surprise of Moya, were expanded to include a variety of other
benefits, such as holiday pay, sick leave, etc.
In my opinion as long as the discussion centered on the gas
price issue, this was not viewed with much alarm by Moya.
There is, in fact, credible evidence to show that she was not
averse to helping the drivers in this respect if she could get
Antech to foot the bill. But it is also my opinion that when the
discussion went off that point and started to be about providing
various other employee benefits, this was viewed as more chal-
lenging. And when Betancourth said that the drivers would
send a letter to the Department of Labor, this was viewed by
Moya and Carrera as a crisis because, as expressed by Carrera,
this could result in the destruction of the Company. In short,
when Betancourth made the latter statement, I believe that Car-
rera, in effect, threatened that the Company would go out of
business and that Moya said that if the drivers wanted these
additional benefits [and therefore be construed as employees],
they were free to leave the company. Inasmuch as the drivers,
who were actually employees, had been paid by the Company
as independent contractors and were not paid in accordance
with various Federal and State laws, including the FLSA, the
possibility of having the Department of Labor look into the
relationship would be a substantial threat to the Company’s
method of doing business. It therefore is in my opinion that it
is highly probable that it would have elicited the responses that
were attributed to Moya and Carrera.2 In this respect, I there-
fore credit the testimony of Frias, Betancourth and Roa.
According to Frias, Markles Rosado told him on October 22,
2005, that he was being fired. Frias states that when he asked
why, Markles said that he was acting on behalf of Moya and
that Alarcon had said that Frias was the leader of this mess.
Frias states that after Betancourth arrived at the scene and said
that the firing was not fair, the other person in the office, Wil-
liam Aspiazu, Moya’s son, told Betancourth that he shouldn’t
talk and that he was next.
Betancourth also testifying about October 22, 2005, stated
that he was in the office and overheard Rosado tell Frias that
Moya had ordered that Frias be fired. Betancourth states that
Rosado said that Frias was fired for being the leader of the
problem and that he had made a mistake at one of the hospitals.
According to Betancourth, when he intervened and asked why
Frias was being fired, Aspiazu said: “[Y]ou had better shut up
because you’re going to be next.”
Frias testified that on October 23, he went to the office to
plead with Moya for his job. He states that when he asked why
he was fired, she replied that he made mistakes, that he didn’t
follow the Company’s rules and that he didn’t do the work.
According to Frias, he told Moya that he had been told the pre-
vious day that he had been fired because he was a leader and
now he was being given a different reason. He states that he
told her that he needed the job because his family depended on
him and she replied: “You should have thought of that before.”
According to Betancourth, on October 25, 2005, Moya told
him that he no longer could give out supplies to the other driv-
ers and that he was being taken off his night route. He testified
that she said that all of us that were involved in this problem
were going to suffer drastic consequences. Betancourth testi-
fied that Moya said: “That God and her Jewish lawyer pro-
tected her; that she wasn’t afraid because the Labor Department
couldn’t do anything against her; and that if I didn’t want to
work, to sign my resignation and leave the office.” With re-
spect to the changes, Betancourth had previously taken out
supplies to the drivers without being compensated for that ser-
vice. He therefore suffered no harm as a result of that change.
However, being taken off the night route cost him about $135
per week.

2 The evidence also shows that Roa, at the October 15 meeting, ac-
cused Moya of getting extra money from Antech to pay for the higher
cost of gasoline, but not passing it along to the drivers. This also would
be a good reason for her to be annoyed, but I note that Roa, who made
the accusation, continued to be employed.
IGRAMO ENTERPRISE 1347
Betancourth testified that on or about November 30, 2005,
Moya called and asked why he was doing so much harm to
Gildardo Ortiz (the principle company supervisor), by making a
complaint against him. [Probably referring to the charge that
was filed by Frias in Case 29–CA–27247.] Betancourth states
that Moya said that if we kept doing this, she was going to be
forced to fire us all. He states that he didn’t want to do any
harm to Gildardo and that the complaint was not against him; it
was against the Company.
According to Betancourth, he had another conversation with
Moya on Monday, December 5, 2005, during which she said
that if he kept making problems for the Company she was go-
ing to fire him. Betancourth states that she said that Jack Buck-
ley (from Antech) was displeased and had said that they should
get rid of him.3 Betancourth testified that Moya repeated her
praise of God and Jewish lawyers who she said would protect
her from the Labor Department. He also states that Moya said
that the drivers were independent workers; that she wasn’t go-
ing to give them anything; and that she preferred to lose the
company or go bankrupt before giving them anything.
With respect to Betancourth, the Respondent asserts that it
ceased having him deliver supplies to the other drivers because
management believed that he had copied the other driver’s
checks. Whether true or not, this doesn’t much matter as this
aspect of Betancourth’s job was, according to his own testi-
mony, voluntary and the elimination of this function was no
detriment to him. I therefore do not think that this action
amounted to a violation of the Act.
However, the elimination of a night route clearly was a det-
riment and cost Betancourth about $135 per week. The Re-
spondent contends that this route had been done by Harold
Gonzalez about 5 months before and that Moya simply gave the
route back to Gonzalez because Betancourth was constantly
complaining that he wasn’t getting enough compensation for
the route.
By the time of the October 15 meeting, Betancourth had
been doing the route for a relatively long period of time. The
elimination of this route and the concomitant reduction in his
pay, took place soon after the October 15 meeting. It should be
recalled that, a written list of demands had been presented at
this meeting (GC Exh. 11), and Betancourth said that he in-
tended to send a letter to the Department of Labor if there was
no resolution. As this was, in my opinion, construed by the
Company to mean that Betancourth intended to make a com-
plaint to that agency about the driver’s pay, Moya and Carrera
responded with alarm because this could upset the basic rela-
tionship where, in terms of their pay (and taxes), the Respon-
dent had treated the drivers as if they were independent con-
tractors.
In my opinion, Betancourth was engaged in protected con-
certed activity when, in the context of the October 15 meeting

3 At this point, Frias had filed an unfair labor practice charge and
Betancourth did not file a charge until December 13. In context, it
seems that Betancourth and Moya were talking about the charge that
Frias had filed and that her statement that Jack had said that the Re-
spondent should get rid of “him” seems to refer to Frias and not Betan-
courth.
he stated that unless there was some resolution of the driver’s
problems, he was going to send a letter to the Department of
Labor. As it is my opinion that the credible evidence estab-
lishes that the Respondent took away a route because of Betan-
courth’s participation in and the statements he made at the Oc-
tober 15 meeting, I conclude that the Respondent has violated
Section 8(a)(1) of the Act. Kysor Industrial Corp., 309 NLRB
237 (1992).
Orce Frias’ case is different.
Other than signing the original August 12 petition, there is
little evidence to suggest that Frias was a “leader” amongst the
employees to get better wages and benefits. At the October 15
meeting, the drivers who spoke up were Betancourth, Roa,
Alarcon, Jost, and Barrera. Frias had nothing to say.
On direct examination, Frias asserted that before his dis-
charge he had never received any warnings from the Respon-
dent. This was not true. On cross-examination, he conceded
that in March 2005, Moya had told him she was going to give
him one more chance and that the “next time you’re gone.”
The credible evidence shows that in March 2005, Moya had
been told that Frias had failed to make a call regarding a com-
pany on his route that was an “on call” pickup and that as a
result, he failed to pick up the blood samples. Moya testified
that she told Frias that he was not doing his job and that she
was giving him one last chance. This incident occurred well
before there was any concerted activity amongst the drivers and
this warning therefore could not have been motivated by any
concerted protected activity on the part of Frias. According to
Moya, she had decided to fire Frias at that time but changed her
mind.
Jack Buckley, Antech’s traffic manager, testified that over a
period of weeks in the latter part of 2005, he received about
three or four calls that the driver of route 76 was arriving too
early for the pickups at two hospitals and that the driver had
refused to return when asked to do so. Buckley states that after
he received several of these calls, he called either Moya or
Gildardo to have this situation fixed. In this regard, Buckley
testified that he did not know who the driver was and couldn’t
care less. He just wanted the problem fixed.
Moya testified that Gildardo Ortiz told her that he received a
call from Buckley complaining about the failure to make pick-
ups on route 76. Realizing that the driver was Frias, she again
decided to fire him.
Markles Rosado testified that he had received reports that
Frias was not making pickups and that he was told that Buckley
had spoken to Moya and told her that the problem had to be
fixed. Rosado testified that on October 23 or 24, he told Frias
that he was being fired and did so in the presence of Betan-
courth. According to Rosado, he told Frias that the reason was
because Frias was not making his pickups. He denied that he
said anything about Frias being a leader or that he was being
fired because of his concerted activity.
For his part, Frias denied that he refused to make the calls or
that he failed to make the pickups.
Frias testified, however, that on or about September 26,
2005, Markles Rosado called him while he was on the road and
asked if he had called the lab. Frias states that Rosado said that
the guys were telling him that Frias had passed it by. Accord-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1348
ing to Frias, he told Rosado that when he called, they said that
they didn’t have anything. He also states that when Rosado
said that he had to return, he told Rosado that he was an hour
away from the hospital and couldn’t go back. This incident
took place, according to Frias, several weeks before the Octo-
ber 15 meeting.
Frias also testified that on or about October 14, 2005 (the
day before the meeting), Rosado again asked him if had failed
to pick up samples from one of his locations. According to
Frias, Rosado told him to forget about it and that he (Rosado)
would take care of the pickup.
Taken together, the testimony of Frias, Rosado, Moya, and
Buckley shows that in March 2005, Frias was almost fired be-
cause of pickup problems along his route. The evidence also
shows that before the October 15 meeting, where the demands
for additional employee benefits and the threat to go to the
Department of Labor caused the fan to be severely jostled, Frias
had been involved in at least two more instances where he
failed to pick up samples along his route and had been told of
this by Rosado. Although Buckley did not testify that he in-
sisted that the driver on route 76 be fired, it is clear to me that
given the past warning, Moya reasonably could have made the
decision that Frias was not performing his job properly and
should be dismissed.
On the basis of the record as a whole, I conclude that the Re-
spondent’s discharge of Moya was for cause and that it was not
motivated by any protected concerted activity on his part or on
the part of other employees. I therefore recommend that this
aspect of the case be dismissed.4
CONCLUSIONS OF LAW
1. By threatening employees with discharge or by telling
them that they could resign, because of their protected con-
certed activities, the Respondent has violated Section 8(a)(1) of
the Act.5
2. By telling employees that if they sent a wage complaint to
the Department of Labor, the Company could be destroyed or
go out of business, the Respondent violated Section 8(a)(1) of
the Act.6
3. By taking a route away from Gustavo Betancourth and
thereby reducing his earnings, because of his protected con-

4 Buckley, as far as I can see, had no particular reason to shape his
testimony to protect Igramo which is merely 1 of 12 courier companies
that work for Antech. Based on his demeanor, I thought that he was a
credible witness. As the testimony of Moya and Rosado was essen-
tially consistent with Buckley’s testimony regarding the events leading
up to Frias’ discharge, I shall also credit their testimony in this respect
even though I think that the testimony of Moya was not particularly
reliable in relation to the October 15 meeting.
5 Gustavo Betancourth testified that he had several conversations
with Grace Moya where she made threats of discharge. In my opinion,
Betancourth conflated some of these conversations. Therefore, al-
though I credit his assertion regarding the threats, I think that it is
highly likely that this occurred after and not before the October 15,
2005 meeting.
6 Since Carrera, the Company’s accountant was brought to the Octo-
ber 15 meeting by Moya and was asked by her to speak to the drivers, I
conclude that he was an agent for the Company with respect to those
statements he made at the meeting.
certed activity, the Respondent violated Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
5. The Respondent has not violated the Act in any other
manner encompassed by the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
As I have concluded that the Respondent illegally took away
a route from Gustavo Betancourth, it must offer this route back
to him, or if that route no longer exists, a substantially similar
route, and make him whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of such
refusal less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Igramo Enterprise Inc., New York, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with discharge or by telling them
that they could resign, because of their protected concerted
activities.
(b) Telling employees that if they send a wage complaint to
the Department of Labor, the Company could be destroyed or
go out of business.
(c) Taking away routes from employees and thereby reduc-
ing their earnings because of their protected concerted activity.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Gustavo
Betancourth full reinstatement to all routes he had as of Octo-
ber 15, 2005, and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of this deci-
sion.
(b) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
IGRAMO ENTERPRISE 1349
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its fa-
cilities in New York, New York, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent Employer’s authorized representative, shall be
posted by the Respondent Employer immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
Employer to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent Employer has
gone out of business or closed the facility involved in these
proceedings, or sold the business or the facilities involved
herein, the Respondent Employer shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondents at any time
since October 15, 2005.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Nancy Reibstein, Esq., for the General Counsel.
David Singer, Esq., for the Respondent.
SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge. I issued a
decision in this case on September 15, 2006. By Order dated
June 12, 2007, the Board remanded this case to me to make
further findings and to issue a supplemental decision.
Orce Frias testified that on October 22, 2005, Markles
Rosado told him that he was fired on orders from Grace Moya
and stated in substance, that he had learned from employee
Alarcon that Frias was the “leader of all this mess.”1
On this particular point, I do not credit Frias. For one thing,
I have already concluded that Frias was an unreliable witness
because he falsely denied that he had received any warnings in
the past. (In fact, he had been told in March 2005 that he was
being given one last chance.)2 For another, the statement at-

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
1 This was corroborated by Betancourth who testified that he over-
heard the conversation between Markles and Frias. I think he is mis-
taken about this. He testified that he also heard Markles say that Frias
was being fired because of a mistake he had made at one of the hospi-
tals.
2 In my opinion, the receipt of what amounted to a final warning is
not the kind of thing one would easily forget.
tributed to Rosado is not really probable because the evidence
does not show that Frias was the leader of the employees in
trying to get better wages and benefits. Nor did the evidence
show that Frias had anything of substance to say at the meeting
on October 15, 2005, which was, in my opinion, the triggering
event in relation to the discriminatory actions taken against
Gustavo Betancourth.
In my decision I had concluded that the original efforts by
the employees to obtain reimbursement for higher gasoline
prices was not viewed disfavorably by Moya. My conclusion
was that the thing that tipped the apple cart was when certain
drivers, on October 15, 2005, raised the ante by making de-
mands on other issues and when Betancourth threatened to go
to the Department of Labor if the new demands were not met.
(At this meeting, Frias did not have anything to say about these
issues.)
Thus, while the evidence pointed to the likelihood that Moya
retaliated against Betancourth because of his role in the October
15 meeting; more specifically his threat to go to the Department
of Labor, the evidence was wholly lacking to show any reason
why she would have wanted to retaliate against Frias who
played no role in the October 15 discussions and who otherwise
had no unique role in shaping the original employee demand
regarding gasoline prices. (Also, the evidence did not show
that Frias had anything to do with the preparation of General
Counsel’s Exhibit 11, which was a second petition setting forth
the new demands. This document seems to have been pre-
sented to the Respondent by Betancourth.)
In my opinion, the Respondent discharged Frias, not because
of any protected concerted activity on his part, but because he
missed pickups on his route. One of these incidents occurred
around September 26, and the other occurred on or about Octo-
ber 14, 2005. (The day before the meeting.) The credited tes-
timony of Jack Buckley, Antech’s traffic manager, shows that
the Respondent’s only customer was concerned about these
missed pickups and that he conveyed his concern to the Re-
spondent. Considering the fact that Frias had received what
amounted to a final warning back in March 2005, I conclude
that the Respondent discharged him for reasons wholly apart
from any protected activity that he may have engaged in.
In short, even if I were persuaded (which I am not), that the
General Counsel had presented sufficient evidence to show that
“a” reason for Frias’ discharge was because of his alleged pro-
tected concerted activity (or because the Respondent thought he
had engaged in such activity), I would nevertheless find that the
Respondent had, in fact, discharged him for reasons unrelated
to those activities, but rather because of his failure to properly
perform his job duties.
Accordingly, I reaffirm my original decision to dismiss the
allegations of the complaint insofar as they alleged that Frias
was illegally discharged because of his protected, concerted
activities.