Regency Service Carts, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1998

325 N.L.R.B. 617 (N.L.R.B. 1998)

617
325 NLRB No. 94
REGENCY SERVICE CARTS
1 The Respondent and Union 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.
We adopt the judge’s finding that, although Theodore Jones did
not testify, he was unlawfully swept up with those employees who
were laid off because of their known, perceived, or suspected union
activities. In support of that conclusion, the record shows that on
March 23, 1994, Jones attended a union meeting at a subway station
near the Respondent’s plant, and that on April 22, 1994, he attended
a meeting held openly across the street from the plant’s front en-
trance. The April 22 meeting was observed for a time by Plant Man-
ager Pezulich. We find, therefore, that the record supports an infer-
ence that the Respondent had knowledge of Jones’ union activity.
See Yaohan of California, Inc., 280 NLRB 268 (1986); and BMD
Sportswear Corp., 283 NLRB 142 (1987).
We adopt the judge’s finding overruling the challenges to the bal-
lots of Keith Jackson, Jerome Smith, and Rocco Lacona, because
Jackson and Smith had a reasonable expectation of recall and
Lacona was an assembler working within the production and mainte-
nance unit.
In the absence of exceptions, we adopt, pro forma, the judge’s
findings overruling the challenges to the ballots of Marian Faryniarz,
Lawnce Mollison, Jose Veliz, Jean Lubin, Theodore Jones, Rubin
Ramos, Lendo Bronson, Anthony Thames, Yevgeny Chernyakov,
and Ellsworth Quammie.
We correct the judge’s inadvertent reference in sec. 8, Analysis—
The Challenges, of his decision to Anthony James instead of An-
thony Thames.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
Regency Service Carts, Inc. and Giovanni Trevisano
and Roberto Vasquez and Benjamin Ramirez
and Shopmen’s Local Union No. 455, Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers, AFL–CIO
Regency Service Carts, Inc. and Elick Dargan, Peti-
tioner and Journeymen’s and Production Allied
Services of America and Canada International
Union Local No. 157. Cases 29–CA–17953–1,
29–CA–17953–2, 29–CA–17953–4, 29–CA–
18465, and 29–RD–758
April 10, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On April 26, 1995, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Union filed cross-exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified,2 with the following exception. The judge
found that three employees engaged in a brief, sponta-
neous walkout on January 14, 1994. In its exceptions,
the Respondent contends that the walkout was unpro-
tected because it violated the no-strike clause in the
parties’ collective-bargaining agreement. As the record
is unclear as to the viability of the collective-bargain-
ing agreement at the time of the walkout or, even as-
suming the viability of the agreement, as to the appli-
cability of the no-strike clause at that time under the
circumstances of the case, we sever and remand that
portion of the case to the judge for the taking of addi-
tional evidence on those issues, and for the issuance of
a supplemental decision containing findings of fact,
conclusions of law, and a recommended supplemental
Order.
ORDER
The National Labor Relations Board orders that the
Respondent, Regency Service Carts, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union activities and sympathies, creating the im-
pression that the employees’ union activities are under
surveillance by the Employer, promising employees
benefits for not engaging in union activities, threaten-
ing employees that it would close the business in order
to discourage them from engaging in union activities
or threatening employees with layoff, discharge, and
other reprisals because they had engaged in union ac-
tivities.
(b) Discharging or laying off and failing and refus-
ing to recall employees or canceling the health insur-
ance of employees because of the union activities in
which they and other employees were engaged.
(c) 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
Jean Lubin, Jose Veliz, Marian Faryniarz, Theodore
Jones, Lawnce Mollison, and Reinaldo Rivera full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and reinstate Elick
Dargan’s health insurance.
(b) Make Jean Lubin, Jose Veliz, Marian Faryniarz,
Theodore Jones, Lawnce Mollison, and Reinaldo Ri-
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618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
vera whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the
judge’s decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful lay-
offs, and within 3 days thereafter notify the employees
in writing that this has been done and that the layoffs
will not be used against them 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 pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its Brooklyn, New York facility copies of the notice,
on forms marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
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
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since February 16, 1994.
(f) 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 this proceeding is re-
manded to Judge Michael O. Miller for the purpose of
arranging a hearing to take evidence on the issues we
remanded.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a decision containing credibil-
ity resolutions, findings of fact, conclusions of law,
and recommendations to the Board. Following service
of the supplemental decision on the parties, the provi-
sions of Section 102.46 of the Board’s Rules and Reg-
ulations shall apply.
IT IS FURTHER ORDERED that Case 29–RD–758 is re-
manded to the Regional Director with a direction to
open and count the ballots of Jean Lubin, Jose Veliz,
Marian Faryniarz, Theodore Jones, Lawnce Mollison,
Anthony Thames, Jerome Smith, Lendo Bronson,
Keith Jackson, Rubin Ramos, Yevgeny Chernyakov,
Ellsworth Quammie, and Rocco Lacona and to prepare
and serve on the parties a revised tally of ballots and
issue the appropriate certification.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate you about your
suspected union activity, nor about concerted activity
in which you engage for the mutual aid or protection
of yourselves and your coworkers.
WE WILL NOT create the impression that your union
activities are under our surveillance.
WE WILL NOT promise you benefits for not engaging
in union activities.
WE WILL NOT threaten that we will close the busi-
ness if you engage in union activities.
WE WILL NOT threaten to lay you off for engaging
in union activities.
WE WILL NOT threaten to discharge you or with
other reprisals for engaging in union activities.
WE WILL NOT lay off and fail and refuse to recall
Jean Lubin, Jose Veliz, Marian Faryniarz, Theodore
Jones, Lawnce Mollison, and Reinaldo Rivera, or any
other employee, because of their union activities and
the union activities of other employees.
WE WILL NOT cancel the health insurance of Elick
Dargan, or any other employee, for engaging in union
activities.
WE WILL NOT in any like or related manner interfere
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 Jean Lubin, Jose Veliz, Marian
Faryniarz, Theodore Jones, Lawnce Mollison, and
Reinaldo Rivera full reinstatement to their former jobs
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619REGENCY SERVICE CARTS
1 The charges in Cases 29–CA–17953–1, 29–CA–17953–2, and
29–CA–17953–4 were filed by Trevisano, Vasquez, and Ramirez, re-
spectively, on January 18, 1994; the charge in Case 29–CA–18465
was filed by Shopmen’s Local Union No. 455, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers, AFL–CIO
on August 15, 1994.
2 It ill behooves the General Counsel to move that I reject Re-
spondent’s brief as untimely filed where its own brief was received
after that of the Respondent due to the fact the General Counsel’s
brief was inadvertently misaddressed. That motion is denied and I
find it unnecessary to consider Respondent’s response thereto. The
briefs of all parties have been considered.
3 Connie Pezulich is the daughter of Giacomo Abatte Sr. and the
wife of John Pezulich.
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the
Board’s Order, reinstate Elick Dargan’s health insur-
ance coverage.
WE WILL make Jean Lubin, Jose Veliz, Marian
Faryniarz, Theodore Jones, Lawnce Mollison, and
Reinaldo Rivera whole for any loss of earnings and
other benefits resulting from their discharges, less any
net interim earnings, plus interest.
WE WILL make Elick Dargan whole for any pre-
miums paid or medical expenses incurred as a result
of our unlawful actions plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any references to
the unlawful layoffs of Jean Lubin, Jose Veliz, Marian
Faryniarz, Theodore Jones, Lawnce Mollison, and
Reinaldo Rivera and WE WILL, within 3 days there-
after, notify them in writing that this has been done
and that the layoffs will not be used against them in
any way.
REGENCY SERVICE CARTS, INC.
Sharon Chau, Esq. and Emily DeSa, Esq., for the General
Counsel.
Jeffrey P. Pollack, Esq. (Horowitz & Pollack, P.C.), for the
Respondent.
Seth Kupferberg, Esq. (Sisper, Weinstock, Harper & Dorn),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Brooklyn, New York, based on charges
filed by the various Charging Parties named above1 and a
complaint which was issued by the Regional Director for Re-
gion 29 of the National Labor Relations Board (the Board)
on March 31 and October 21, 1994. The consolidated com-
plaint alleges that Regency Service Carts, Inc. (Respondent
or Regency) violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) by discriminatorily discharging
or laying off employees because of their union or other pro-
tected concerted activities and by otherwise interfering with,
restraining, and coercing employees in the exercise of their
statutory rights. Respondent’s timely filed answer denies the
commission of any unfair labor practices. Consolidated for
hearing with those unfair labor practice allegations were cer-
tain challenges to ballots cast in the election held in Case
29–RD–758.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the all parties,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the manufac-
ture and nonretail sale of restaurant and hotel equipment at
its facility in Brooklyn, New York. Jurisdiction is not in dis-
pute. The complaint alleges and Respondent admits facts suf-
ficient to establish, and I find and conclude, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I further find and conclude that
both Iron Workers Local Union No. 455, International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers,
AFL–CIO (Local 455) and Journeymen’s and Production Al-
lied Services of America and Canada International Union
Local 157 (Local 157) are labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures and repairs commercial kitchen
equipment such as carts and chafing dishes. It has two build-
ings in Brooklyn, New York, on adjacent streets. Its manage-
rial hierarchy consists of Giacomo Abatte Sr., president; Jack
Abatte Jr. and Connie Pezulich,3 vice presidents; John
Pezulich, general manager; and Robert Pezulich, Carl
Cocchiola, Joseph Toussaint, and Pablo Gonzalez, super-
visors. In about November 1993, Respondent opened a repair
and sales facility in Las Vegas, Nevada, under Jack Abatte
Jr.
For an undisclosed number of years, Regency’s approxi-
mately 50 employees have been represented by Local 157.
The most recent contract expired in 1991 and, while the
1991 collective-bargaining agreement purports to continue by
its terms from year to year, no new agreement has been ne-
gotiated. It was the perception of at least some of the em-
ployees that they were receiving very little representation
from Local 157 and few of the benefits under its contract.
B. The Discharges of Trevisano, Vasquez, and Ramirez
1. The facts
Ruperto Vasquez, a nickel plater, first worked for Regency
in 1987, left in 1990, and returned sometime thereafter. He
was a member of Local 157. Starting in late 1991, he began
to notice that certain contract benefits, to which he believed
himself entitled, were no longer being paid. He discovered
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620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Company records indicate that Respondent terminated its health
insurance coverage in January 1993 (R. Exhs. 1–2).
5 Trevisano claimed that he received the raise because he was
doing a good job. Abatte Jr. contended that the raise was meant to
compensate him for moving and to equalize his pay with others who
were transferring. The difference is irrelevant.
6 All dates hereinafter are 1994 unless otherwise specified.
7 The foregoing is my amalgamation of the testimony of the five
witnesses, accepting that which was most credibly offered in light
of the probabilities and language barriers. Noting that they sought
Local 157’s help to resolve these ongoing issues, i.e., to secure fu-
ture benefits to which they felt entitled, and either returned to work
expecting to punch in, or called in sick, on the next workday, I do
not find that they either intended to quit or expressed any intention
to do so. To the extent that both Pezulich and Cocchiola claimed
that each time the employees said they were going to leave, they
also said that they were ‘‘quitting,’’ I find their testimony contrived
and not worthy of belief. That the employees took the radio and
toaster with them suggests that they did not know when they might
return; it does not establish that they quit.
8 This testimony of Trevisano suggests, but does not establish, that
Vincent called Respondent on their behalf that day, as the General
Counsel asserts.
that he no longer had health insurance.4 He also found that
he did not receive an expected wage increase in March 1993
and was not paid for sick leave which he took in September
1993. His attempts to secure these benefits by raising the is-
sues with the union steward, Elick Dargan, were unavailing.
Benjamin Ramirez began working for Regency in Septem-
ber 1991. Although he worked in the plating department with
other unit members, including Vasquez and Giovanni
Trevisano, he was never given an application for membership
in Local 157. He never sought out that union and never be-
came a member. Ramirez had no health insurance from his
employer and, in October 1993, found that he was not paid
for a claimed sick day.
Trevisano was an electroplater who began his Regency
employment in 1983. He had some lead functions in the plat-
ing department but did not possess statutory supervisory au-
thority. In the fall of 1993, Abatte Jr. asked him if he was
interested in moving to the soon-to-be opened Las Vegas op-
eration and gave him a $3-per-hour wage increase.5
Trevisano made substantial demands on Respondent in return
for moving to Las Vegas and the transfer never came about.
On Friday, January 14, 1994,6 around noon, the paychecks
were distributed. Trevisano found that his wage had been re-
duced by $3 per hour and that he had not been paid vacation
pay he had expected. At the same time, Vasquez observed
that he had not been paid for a day of sick leave he had been
granted on December 29, 1993, and Ramirez noted that he
had not received certain vacation pay to which he believed
himself entitled. The employees talked among themselves,
expressing their concerns about the lost benefits. Trevisano
told Dargan about his problems and threatened to file some
sort of a charge or complaint with or against Local 157. The
employees also talked to the plating room supervisor,
Cocchiola, directly and through Trevisano as their spokes-
man. Cocchiola referred them to John Pezulich (hereinafter
referred to as Pezulich; Connie Pezulich will be referred to
by her full name.)
Trevisano went to Pezulich and questioned the reduction
in his wage and the missing vacation pay. Pezulich said that
there was nothing he could do, that it was the owners’ (i.e.,
the Abattes’) decision. He told Trevisano that the Company
was having financial problems. When Trevisano insisted that
‘‘it was not right’’ and that he intended to do something
about it, Pezulich told Trevisano that he could take it up with
Local 157. Trevisano threatened to leave and do just that if
he did not get a more satisfactory answer by 2 p.m. He did
not change his mind when told that Giacomo Abatte had left
for the day and would not return until the next workday.
This conversation was repeated several times but Pezulich
never satisfied Trevisano’s complaints.
Trevisano told Vasquez and Ramirez that he was going to
go to Local 157 to file some sort of a complaint or griev-
ance. When they asked if they could go with him, he referred
them to Pezulich. Each of them, I find, discussed his prob-
lem with Pezulich. Pezulich either suggested that they take
their concerns to Local 157 or they asked him if they could
do so and he told them that they could. They understood this
to be permission to leave before the end of the workday; I
do not find that Pezulich so intended it.
After the lunchbreak, Trevisano told Cocchiola that he had
spoken to Pezulich. As recalled by Cocchiola, Trevisano
said, ‘‘He was going to leave at 2:00 in the afternoon, along
with the two other guys that worked in the room if he didn’t
get an answer from John [Pezulich] pertaining to the change
in his salary . . . that they were not going to wait’’ for
Giacomo Abatte, and ‘‘[t]hey were going to quit, leave and
that was the end of it.’’ Cocchiola told Vasquez and Ramirez
that they were ‘‘crazy’’ to walk out as a group. He allegedly
told all three of them that they were ‘‘crazy’’ to be ‘‘quitting
for no reason.’’ They replied that ‘‘they felt that they should
stick together and they were all going to leave.’’ Both
Cocchiola and Pezulich observed the three employees leave
‘‘as a group.’’ They took their dirty laundry, which normally
went home with them on Fridays, as well as a toaster oven
and radio which usually remained in the shop. After they
left, Pezulich marked their timecards ‘‘Walked out’’ with a
direction to the bookkeeper to check to see if they had any
holidays or vacation coming to them.
When they left, there was a small amount of product in
the plating solution. They believed that Cocchiola was going
to complete their usual duties, which basically consisted of
dipping the pieces in various solutions.7
On leaving the plant at 2:20 p.m., the three employees
went to Trevisano’s home. Trevisano called Local 157 and
spoke to their business representative, Vincent. They com-
plained that they were not getting any help from the Union.
Vincent said he would get back to them. When he called
back, about 15 minutes later, he told them not to worry but
noted that the Company was having financial difficulties.8
He promised to come to the plant on Tuesday (which was
the next workday, Monday being the Martin Luther King
holiday) to work things out but he could not tell them what
time he might be there. The employees deemed Vincent’s re-
sponse to be a run around and agreed that they would go to
the union office on Monday.
The three men went to Local 157’s office on Monday.
Notwithstanding that it was a holiday, they found someone,
not Vincent, to talk to. Again, they were assured that a rep-
resentative would come to the plant on Tuesday and, again,
they were not convinced that they would get any help from
Local 157. They made plans to go to the NLRB on the fol-
lowing day.
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621REGENCY SERVICE CARTS
9 Other than to deny speaking to Vasquez or Ramirez after January
14, Pezulich did not contradict this testimony. I credit the employ-
ees. Whether he spoke to each of them, or only to Trevisano, it is
clear that they were terminated at or before that point.
10 This finding is fairly encompassed within the language of the
complaint, charging Respondent with discharging them for
concertedly seeking to file grievances and in order to discourage
those and other concerted activities engaged in for mutual aid and
protection. It was also fully litigated. Chelsea Homes, 298 NLRB
813 (1990).
11 Other than denying that he had expressed surprise at the pres-
ence of Local 455, Pezulich did not contradict the foregoing credible
testimony of Elick Dargan and Anthony Rosaci, Local 455’s finan-
cial secretary.
On Tuesday, January 18, before going in to work,
Trevisano and Vasquez visited the NLRB office in Brooklyn
where they spoke with the information officer. They ex-
plained their problem and that Board agent called Local 157
on their behalf to secure some help for them. Trevisano and
Vasquez left the Board’s office and went to the plant.
On arriving at the plant, Trevisano and Vasquez found that
their timecards had been pulled from the rack. Initially,
Pezulich told them that they had walked out and were fired.
They argued over whether Pezulich had given them permis-
sion to leave and requested whatever pay was due them.
Pezulich went to the office, returned, and told them that they
had quit and thus had nothing coming. Ramirez did not go
in to the plant that day; he called in sick. Pezulich told him
he had been fired.9 Vasquez and Ramirez received pay for
the days they believed they were entitled to in their final
paychecks.
2. Analysis
The General Counsel contends that Respondent discharged
these three employees because they sought to file grievances
with their then collective-bargaining representative, Local
157. The General Counsel theorizes that Respondent feared
that it would be required to comply with its contractual obli-
gations in the future if these employees took their complaints
to that Union. Respondent contends that they quit.
The truth, I find, lies someplace between these positions.
As I find the facts, the employees complained concertedly,
among themselves and to their supervisors, about what they
perceived to be adverse changes in their working conditions.
Pezulich told them that he was powerless to help them and
either suggested that they take their problems to Local 157
or, at least, interposed no objection to their doing so. They
assumed that he had agreed to their leaving at that time, be-
fore the end of their shift; Pezulich, however, had no such
understanding. They left as a group to take their complaints
to Local 157, they were observed leaving together and Re-
spondent knew why they were leaving. They intended to re-
turn and did not say that they were quitting. On their depar-
ture, Pezulich wrote that they had ‘‘walked out’’ on their
timecards and they were terminated either at that moment or
when they sought to return, sometime after the start of their
shift on the next workday.
What the foregoing describes is a concerted and thus pro-
tected walkout in protest of perceived adverse changes in
their conditions of employment. That walkout demonstrated
that the employees would act together for their mutual pro-
tection and, ‘‘because the striker’s endeavor was inoffensive
to statutory policy, it fell within Section 7 guarantees, with-
out inquiry as to whether the underlying grievance was meri-
torious.’’ Cub Branch Mining, 300 NLRB 57, 58 (1990). As
the judge stated, id. at 59:
Ordinarily, any management action detrimental to par-
ticipants in a protected work stoppage is sufficiently de-
structive of employee rights to be presumptively unlaw-
ful. As such, at a minimum, the employer is impelled
to substantiate an overarching business justification.
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
No such business justification has been demonstrated. Re-
spondent has not even shown that it had any established rules
concerning leaving work early or that employees had suf-
fered discipline for such conduct in the past. Neither has it
shown that it was more than inconvenienced by the early de-
parture of these three employees.
The walkout was brief and spontaneous. There was no evi-
dence that it was part of a plan or pattern of intermittent
work stoppages such as would be inconsistent with a genuine
strike. ‘‘Such a single concerted walkout is presumptively
protected.’’ Daniel Construction Co., 277 NLRB 795 (1985),
citing NLRB v. Washington Aluminum Co., 370 U.S. 9
(1962). See also Robbins Engineering, 311 NLRB 1079,
1083–1084 (1993).
Accordingly, I find that by discharging Giovanni
Trevisano, Ruperto Vasquez, and Benjamin Ramirez for par-
ticipating in a protected concerted work stoppage, Respond-
ent has violated Section 8(a)(3) of the Act.10
B. Activity on Behalf of Local 455
On January 28, Elick Dargan filed the decertification peti-
tion involved here, seeking a vote to remove Local 157 as
collective-bargaining representative. Local 455 began orga-
nizing among Respondent’s employees in February. A hear-
ing was held at the NLRB offices on February 16; no rep-
resentatives of Local 157 appeared. However, Local 455 in-
tervened in the proceeding.
John and Connie Pezulich attended this hearing, along
with Dargan, Reinaldo Rivera, and the three employees dis-
cussed above. As the appearance forms were passed around,
Pezulich questioned Local 455’s presence. This was
Pezulich’s first notice of Local 455’s interest. When told that
they were intervening in the proceeding and had expressed
an interest in representing the employees, he stated, ‘‘I don’t
care if they want to throw Local 157 out, but I’m not going
to have another union come in.’’ The Board agent told him
that it was not up to him. Connie Pezulich questioned wheth-
er the Employer had any say in the matter and Pezulich stat-
ed that he was not going to have the Union come in and tell
him how to run his business. ‘‘This union is not to my bene-
fit,’’ he stated at one point. Pezulich had come into the hear-
ing with a smile on his face; he left in anger.11
C. Alleged 8(a)(1) Violations
1. February 16 interrogation—Pezulich
On his return from the hearing, Pezulich came up to
Faryniarz at his work station. He told Faryniarz that they had
been talking about unions and that unions were not needed
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622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Faryniarz’ detailed and credibly rendered testimony is
uncontradicted. He described this conversation as taking place on
Pezulich’s return from the hearing but misstated that date as March
14. In another conversation which Faryniarz could only date as hav-
ing occurred when Pezulich ‘‘came from some meeting,’’ Pezulich
asked Faryniarz if he ‘‘supported the socialistic union?’’
13 Rivera testified through an interpreter and the foregoing, where
not placed within quotation marks, is what appears to be the import
of his testimony. His testimony stands uncontradicted.
14 Gonzalez, when asked whether he had any conversations with
Mollison, related a conversation about Mollison’s attention to his du-
ties. He did not contradict Mollison’s testimony with regard to this
interrogation.
at Regency. He asked Faryniarz for his opinion. Faryniarz
said that as a ‘‘physical worker,’’ he supported the new
union and explained why. He spoke of the dissatisfaction
with the representation by Local 157 and of the employees’
desire for insurance and better wages. While he sympathized
with Pezulich’s opposition to unions as an owner, he said,
he supported the Union as an employee.
Pezulich replied that he could give increases in wages and
then asked Faryniarz to poll the other Polish and Russian
workers as to their opinions about the Union. Faryniarz com-
plied; he questioned six employees and reported the results
of that poll to Pezulich.12
Faryniarz was not an open and active union supporter,
such as might excuse an interrogation into his union senti-
ments under Rossmore House, 269 NLRB 1176 (1984).
Pezulich’s questioning of how Faryniarz felt about unions,
particularly when coupled with his own expression of hos-
tility toward them and his implied promise of benefit, had a
reasonable tendency to coerce this employee in the exercise
of his Section 7 rights. It is irrelevant that Faryniarz gave
him a frank and honest answer, acknowledging his support
for the union activity. Sunbelt Mfg., 308 NLRB 780 fn. 1
(1992). Moreover, Pezulich enlisted Faryniarz to poll other
employees on his behalf. There is no justification for an em-
ployer to ask an employee to identify other potential union
supporters. BRC Injected Rubber Products, 311 NLRB 66,
72 (1993).
2. Surveillance and creating the impression of
surveillance—Toussaint
On February 23 or 24, a group of employees met in a
schoolyard on President Street. As they gathered, Joseph
Toussaint drove by. Dargan waved at him, but Toussaint did
not wave back or otherwise acknowledge Dargan. It appeared
to Jean Lubin that Toussaint closed his eyes and shook his
head when observed driving slowly past the group.
On the following morning, as he went to work, Dargan
saw Toussaint and Pezulich engaged in a conversation. He
heard but one word, Toussaint saying ‘‘meeting.’’
Toussaint testified that he was merely driving home when
he saw some of the employees on President Street. That
street, he described, is parallel to Carroll Street, on which the
plant is located. They are one-way streets, with traffic going
in opposite directions. In order to go home, he drives one
block on Carroll, takes a left, and goes left again in the op-
posite direction on President. That is what he was doing
when seen by the assembled employees.
While the complaint alleged surveillance by Toussaint on
or about this date and counsel for the General Counsel ad-
duced the foregoing evidence, her brief omits any reference
to either this evidence or the allegation. I take that omission
to be an implicit acknowledgment that this evidence does not
rise to a level which will support such an allegation. I shall
recommend that it be dismissed.
In March, sometime after Pezulich’s meeting of March 9,
discussed infra, Toussaint told Reinaldo Rivera that ‘‘every
time we had a meeting, he found out . . . that he had seen
Mario [Faryniarz] park his car in front of the train station’’
where another union meeting had been held.
This testimony stands uncontradicted. It implies that Re-
spondent knew when and where union meetings were held
and further, that those meetings were under surveillance. As
such, it warrants a finding that Toussaint violated Section
8(a)(1) when he created the impression of surveillance. Key-
stone Lamp Mfg. Corp., 284 NLRB 626, 627 (1987).
3. Promise of benefits and implied threat—Toussaint
On February 17, Toussaint told Reinaldo Rivera that if he
had known that Rivera was going to go to the hearing he
would have stopped him. He suggested that Rivera think
about what he was doing because, if he were to be laid off,
the other employees would not support him. Finally, he told
Rivera that he was going to ask Giacomo Abatte to give him
a raise. Rivera protested that he didn’t want a raise, he want-
ed health insurance. Toussaint then went to the office and,
on his return, told Rivera that the senior Abatte ‘‘had accept-
ed, that he was going to give me a personal medical plan and
a raise . . . that Jack had agreed that if I don’t come to the
hearing again I was going to get a raise’’13
By the foregoing, I find, Respondent promised Rivera a
raise and other benefits if he would refrain from further
union activity and threatened him with layoff if he did not.
Such promises and threats violate Section 8(a)(1).
4. Promise of benefits–Giacomo Abatte Sr.
Some time in February, Abatte Sr. asked Marian Faryniarz
if he was interested in transferring to Las Vegas. The evi-
dence fails to reflect when this occurred, other than ‘‘much
earlier’’ than Faryniarz’ March 24 layoff; it also fails to in-
clude any promises of benefit contingent on his union sym-
pathies. Noting that Respondent had been staffing its Las
Vegas operation with employees from the Brooklyn plant
since at least November 1993, I am unable to conclude that
this occurred after the appearance of Local 455 or had any
connection to it. I shall recommend that this allegation be
dismissed.
5. Interrogation—Gonzalez
On at least one occasion in March, Pablo Gonzalez asked
silver solderer Lawnce Mollison who he was voting for.
Mollison did not reply. There is no evidence that Mollison
was an open or active union supporter. This interrogation
violates Section 8(a)1).14
6. March 9–John and Connie Pezulich and Toussaint
Respondent held a meeting of its employees on March 9
in which both John and Connie Pezulich spoke. In the course
of this meeting, John Pezulich told the employees that:
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623REGENCY SERVICE CARTS
15 The foregoing is based on the testimony of Dargan, Mollison,
Rivera, and Faryniarz. That testimony was credibly offered and is
uncontradicted.
16 That threat is found in Pezulich’s statement that there would be
no one coming in and telling him how to run his business. That
statement, in the context of the other conduct related here, conveys
the impression that the employees’ support for the Union would be
futile. Our Way, Inc., 268 NLRB 394, 414 (1983). It is a violation
separate and distinct from the threat to close the plant
17 Faryniarz’ testimony was credibly offered and is uncontradicted.
18 Faryniarz adequately identified the two supervisors by reference
to their positions and Toussaint’s Haitian heritage. He placed this
conversation about 2 days before he was terminated on March 24.
His credible testimony is uncontradicted.
19 Dargan’s testimony was somewhat confused, particularly as to
dates, and disjointed about what else Connie Pezulich said to him
concerning complaints he had made to her husband. It is
uncontradicted and, to the extent related above, is credited.
[T]hey did not want . . . any union in his shop, that
there would be no more favors, that he had always tried
to be nice and you want to go out and get another
union, and the doors might close, and I might close the
door . . . there would be no one coming in and telling
him how to run his business.
One employee asked whether there would be raises if they
did not vote for a union, Pezulich said that it was ‘‘pos-
sible.’’ Another recalled Pezulich as saying he would extend
them no more loans or do them other favors and two em-
ployees recalled him saying that if the new union came in
he would be forced to shut the plant down or move out. As
those employees, Rivera and Faryniarz, recalled Pezulich’s
words, his ire was essentially directed at the idea that a dif-
ferent union would replace Local 157.
Connie Pezulich asked Elick Dargan what he would do if
he were laid off. He responded that it would not be what he
wanted but that he would find another job. Mollison recalled
her saying that they could not afford the kinds of things the
employees were seeking, such as health insurance and better
wages and that, if they voted for the Union, she would have
to make further cuts.
Immediately following the meeting, Connie Pezulich spoke
to Faryniarz. She asked him if he understood the Company’s
difficult financial condition and told him that they would
close the firm and that ‘‘people will go on the street.’’
Also after the meeting, Toussaint told Mollison, at his
work station: ‘‘Lawnce, don’t do anything you will re-
gret.’’15
This meeting and the surrounding events are replete with
clear violations of Section 8(a)(1). There were threats of dis-
charge, plant closure, and the denial of future benefits such
as the grant of personal loans and other favors or other un-
specified reprisals, threats that selection of the Union as their
representative would be futile,16 and implied promises of
benefit if the employees rejected the Union. There were also
statements of support for the incumbent union made in the
context of the foregoing threats and promises directed at
those who would replace that Union with another. The
choice of which union shall represent them, if any, is for the
employees to make and it is unlawful for an employer to
seek to convey the contrary impression. Medin Realty Corp.,
307 NLRB 497, 502–503 (1992); and Hudson Neckwear,
Inc., 302 NLRB 93, 95 (1991). I find those violations as al-
leged in the complaint.
7. Promises of benefit—Robert Pezulich
In mid-March, Robert Pezulich called Faryniarz to the side
and offered to show Faryniarz ‘‘a very interesting contract as
far as the union was concerned,’’ a contract which, he
claimed, the firm had. Faryniarz declined the invitation, even
when the offer was repeated several times over the next few
days.17 This conduct, I find, was an attempt to induce an in-
dividual who was known by then to be a supporter of Local
455 to drop that support based on an implied promise of
greater benefits. It violates Section 8(a)(1).
8. Interrogation, threat, and disparagement—Toussaint
and Cocchiola
Around March 22 or 23, Toussaint and Cocchiola ap-
proached Faryniarz as he was dressing for work. Faryniarz
asked Toussaint when the employees would be voting ‘‘on
the new union.’’ Toussaint replied, ‘‘I don’t understand why
you are supporting the new union . . . and why you want
to lose your work.’’ Faryniarz explained his rationale for
supporting Local 455, as he had earlier done for Pezulich,
that he was concerned about the welfare of all the employ-
ees. Cocchiola told Faryniarz that if he were in Faryniarz’
place he ‘‘wouldn’t support it because a union doesn’t do
anything, just take money.’’18
Toussaint’s statement to Faryniarz was, at most, a rhetori-
cal question, seeking to make a point rather than to elicit an
answer. Its point was that support for Local 455 would cost
Faryniarz his job. It may not have been interrogation; it most
certainly was a threat, in violation of Section 8(a)(1).
Cocchiola’s statement, I find, was merely the expression
of his opinion and not the kind of disparagement of the
Union such as would violate Section 8(a)(1). Circuit-Wise,
Inc., 306 NLRB 766, 789 (1992); Newsday, Inc., 274 NLRB
86, 95 (1985).
9. Cancellation of Dargan’s medical benefits
When he first began working at Regency, Dargan was
covered by the employers’ Blue Cross health insurance pol-
icy. That policy was canceled in January 1993. At some
point, Dargan asked that he again be covered because of a
health problem in his family. John Abatte Jr. agreed to place
him under a policy they had with another carrier for some
of their employees.
On about March 17, Dargan was brought into the office
to talk with Connie Pezulich. She told him that his policy
would be canceled in 30 days, ‘‘until this matter with the
union was solved.’’ Thirty days later, that policy was can-
celed.19
D. The Election
An election pursuant to the RD petition filed by Dargan
was conducted on April 22. There were approximately 47 el-
igible voters. Of these, 15 voted for Local 455, 8 voted for
Local 157, 13 voted for no representation, 13 voters were
challenged, and 1 voter cast a void ballot. Pursuant to a Sup-
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624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The Employer’s objections were overruled; Local 455 filed no
objections.
21 The Supplemental Decision on Challenges indicates that
Pezulich had claimed that Ramos had been laid off but did not know
whether he had been employed at the time of the election. Ramos’
name appeared on the payroll of March 9, the eligibility date, as did
the names of other employees who were laid off.
plemental Decision on Objections and Challenges,20 the 13
challenges were presented to me for decision.
Following the vote, Rosaci, Local 455’s representative,
met with Reinaldo Rivera and all the challenged voters ex-
cept Lubin, on the street across from the plant. Their meeting
lasted for more than an hour. While they were gathered
there, Pezulich stood outside the plant, observing them, and
walked past them on his way to his car.
E. The Layoffs—Alleged Discriminatees and
Challenged Voters
Some, but not all, of those laid off were alleged in timely
filed charges to have suffered unlawful discrimination. Those
challenged voters who were alleged as discriminatees are
Lubin, Veliz, Faryniarz, Jones, and Mollison. Additionally,
the complaint alleges that Rivera (who voted without chal-
lenge) and Balduccio were discriminatorily laid off. Those
laid-off employees whose ballots were challenged but who
are not alleged as discriminatees are Thames, Smith, Jackson,
Bronson, Ramos, Chernyakov, and Quammie. Rocco Lacona
was challenged on the basis that he was a carpenter, outside
the unit.
1. Anthony Thames
Anthony Thames was a polisher who had worked for Re-
spondent, off and on, since about 1981. His most recent pe-
riod of employment began in November 1993. He was laid
off around February 10, by Pezulich, prior to the RD hear-
ing. When he asked whether he should apply for unemploy-
ment compensation he was told not to worry, that he could
expect to be out of work for only 2 to 3 weeks. His efforts
to return, made after several weeks and again near the end
of 1994, were unavailing.
Pezulich and Toussaint contend that Thames was laid off
because of a lack of work and they claim that he had both
a very poor attendance record and limited skills. Thames was
not questioned about his attendance and no records of his at-
tendance were adduced here. Pezulich did not recall whether
he informed Thames of the layoff. It was not claimed that
he was permanently terminated; Respondent referred to him
as having been ‘‘laid off.’’
2. Smith, Jackson, and Bronson
Jerome Smith had been employed as a porter since 1991
or 1992. On February 16 (the day of the RD hearing), after
his midmorning break, he noticed that his timecard was miss-
ing from the rack. Toussaint told him to talk to Pezulich. He
saw Pezulich about 3 p.m., after Pezulich had returned from
the hearing. When he asked whether he was being laid off,
Pezulich said that he was, that work was slow and, he
claimed, that Pezulich would call him back in 2 or 3 weeks
to ‘‘let [him] know.’’ However, when he checked back about
2 or 3 weeks later, he was told that work was still slow. He
requested his accumulated leave and was told that he would
have to wait for 6 months or a year. However, after com-
plaining to Dargan, he was sent to see Pezulich. Pezulich
gave him a company check for $245; Smith did not under-
stand what it was for. Pezulich acknowledged telling Smith,
when Smith asked about returning, that he might have a
chance ‘‘if things drastically turned around.’’
Smith returned to the Company again around the end of
the year, inquiring if it was hiring. Pezulich told him that the
Company did not hire back anyone it had fired and refused
to reemploy him.
Lendo Bronson worked on silver repairs, learning to be a
polisher. He had been employed since 1992 on an off-and-
on basis, returning most recently in November or December
1993. On the morning of February 16, he heard rumors of
layoffs after which he was told that he would be laid off be-
cause ‘‘the period was slow.’’ Both Toussaint and Pezulich
suggested that he call back and keep in touch. He has called
back several times, only to be told that they had no work for
him yet. On one occasion, Toussaint told him that ‘‘if the
jobs pick up then we’ll call him back.’’
Keith Jackson did not testify. According to Pezulich, Jack-
son was trained to be a polisher and was laid off on February
16 for lack of work. Pezulich did not believe that anything
was said to Jackson about when he might come back to
work.
3. Ramos, Chernyakov, Quammie, and Lacona
The parties stipulated that Yevgeny Chernyakov and Ells-
worth Quammie were eligible voters somehow left off the
eligibility list. Chernyakov was never laid off. When
Quammie was laid off on February 16, he was told that he
was being laid off along with a number of others, that work
was slow, and that he would be called back in a few weeks.
He was recalled on March 8, and has worked continuously
thereafter.
Rubin Ramos was challenged by the Employer. The only
evidence with respect to him is Pezulich’s testimony that he
quit sometime between April and June.21
Rocco Lacona was challenged by the Board agent as not
being on the eligibility list and by Local 455 on the grounds
that he was a carpenter, excluded from the unit. Pezulich tes-
tified that Lacona works in the Union Street facility and for
the 3 to 4 years of his employment has been assembling carts
and other products made of both metal and wood. The only
contrary testimony is that of Ellsworth Quammie who
claimed that when he returned following his layoff (March
9) he was assigned to work in the Union Street plant. While
there, he observed someone he identified only as Rocco
doing the same work as the other carpenters. He had no basis
to describe what work Rocco did during those times when
he (Quammie) was not present in that plant.
4. Balduccio, Lubin, and Veliz
The consolidated amended complaint alleged, and Re-
spondent’s answer thereto admitted, that Carl Balduccio had
been laid off on March 4. The record, however, establishes
that while he worked a short week in the week ending March
9, he was never laid off. No further discussion of Balduccio
is warranted. He was an eligible voter; he is not a
discriminatee.
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625REGENCY SERVICE CARTS
22 Pezulich doubted that he told Veliz that he could expect to be
recalled because Veliz spoke little English. Noting the mutually cor-
roborative testimony of various employees as to what they were told
about when they might be recalled, I credit Veliz.
23 Pezulich denied ever telling Faryniarz when he might return to
work. He claimed that when he laid Faryniarz off he stated that there
might be an opportunity if the business picked up. I have found
Faryniarz to be a thoroughly credible witness and accept his testi-
mony over that of Pezulich, in which I have less confidence.
Jean Lubin worked from January 1992 until his layoff on
March 4, 1994. He was a metal washer; he claimed to have
also done some cutting of metal. Pursuant to Pezulich’s or-
ders to lay several people off, purportedly because things
were slow, Toussaint selected him for layoff. Toussaint vol-
unteered that he told Lubin ‘‘He’s going to get laid off be-
cause were not that busy so when things get better it will
pick up, we’re going to call him back.’’ No date for his like-
ly return to work was given. He was given two checks be-
fore he left.
Lubin had not become a member of Local 157. He testi-
fied to having observed Toussaint drive by the employee
meeting on President Street in late February.
According to Pezulich, no one has been hired to replace
Lubin. Whichever employee is available does whatever
washing needs to be done, amounting to 10 to 15 hours of
work per week.
Jose Veliz had worked for Respondent from 1985 to 1990
and was rehired in December 1993 when he casually visited
the plant to visit a friend. He was a metal polisher. His only
union activity consisted of attending the gathering on Presi-
dent Street. Pezulich laid him off on March 4, telling him
that ‘‘the job was low and that he was going to call me with-
in two or three weeks.’’22 He was never recalled to work.
His telephone calls to Respondent were never returned.
Pezulich contended that Veliz was laid off because he was
one of the newest employees, work was slow, and he had to
make cuts.
5. Faryniarz, Jones, Mollison, and Rivera
Marian Faryniarz was a skilled and relatively highly paid
samplemaker, having started with Respondent in 1984 and
earning $16.50 per hour, after a recent $1.10 raise, at the
time of his layoff. As described above, he was subjected to
interrogation, threats, and promises of benefit in an effort to
discourage him from engaging in union activity, he spoke up
at the March 9 meeting and he was candid about his support
for the Union, even after the Employers’ coercive conduct.
On March 23, at about noon, Pezulich handed out the pay-
checks. He gave Faryniarz two checks and told him, ‘‘I don’t
have any more work for you . . . this is the last check for
you.’’ He asked Pezulich for a letter of recommendation and,
even though Pezulich had earlier promised to give him one,
Pezulich refused because he was ‘‘sending [Faryniarz] for
unemployment.’’ When Faryniarz came in to vote on April
22, Pezulich asked whether he was working. When Faryniarz
replied that he was on unemployment compensation, Pezulich
said that he would be back to work in 3 months. He has
never been recalled to work.23
Retained when Faryniarz was laid off were Nick DeFloria,
a samplemaker, who did work similar to that of Faryniarz,
and Wojciech Gutkowski, who was Faryniarz’ assistant.
Florio had longer tenure than Faryniarz and was paid $900
per week ($22.50 per hour). Gutkowski was paid $11 per
hour. At the time of his layoff, Faryniarz was capable of per-
forming production work; however, he was paid significantly
more per hour than the production employees.
Theodore Jones was a porter whom Respondent laid off on
March 23, assertedly for lack of work. When he was laid off,
Pezulich told him that work was slow and that he had to be
laid off. He asked when he might come back and was told
that his recall was a possibility ‘‘if things turned around.’’
No one was hired to replace him; his work is done by
whomever is available and not otherwise occupied. Jones did
not testify and the record does not reflect any union activity
by him.
Lawnce Mollison had worked for Respondent since 1989;
he was a silver solderer. As reflected above, he was sub-
jected to interrogation by Gonzalez and threats by Toussaint.
He was also among the employees who spoke up at the
March 9 meeting.
Mollison was laid off about March 24 or 25, by Pezulich.
When he asked about the possibility of returning to work, he
was assured that he would be recalled ‘‘as soon as things
pick up.’’ He was given a laudatory letter of recommenda-
tion and three checks. In mid-April, he also got a check for
accumulated vacation pay. When he came in during April to
inquire as to that vacation pay, he again asked Pezulich
about the possibility of his recall. Pezulich told him, ‘‘No,
not until this thing is over.’’ Mollison asked ‘‘What thing?’’
and Pezulich responded, ‘‘Oh Lawnce, you know more than
I do.’’ He has never been recalled.
Reinaldo Rivera had been employed since 1988. He oper-
ated the hydraulic press and sometimes operated the power
press. When he laid Rivera off about March 31, Pezulich told
him that he would be off for a few weeks. As described
above, Rivera had been subjected to coercive conduct by
Toussaint, whom Pezulich consulted with respect to the se-
lection of all the employees that were laid off.
Retained after Rivera’s layoff were Robert Cephas, a more
senior die setter; Joseph Carpenter, a more senior hydraulic
press operator (known as Clifford); and a less senior power
press operator named Alvin Lee. Cephas operated the hy-
draulic press after Rivera’s layoff.
6. Respondent’s economic defense
Respondent argues that the foregoing layoffs were eco-
nomically rather than discriminatorily motivated. In support
thereof, it adduced some financial and other records.
Thus, it was shown that in January 1993, Respondent re-
duced its workweek to 4 days and canceled its employees’
health insurance coverage. According to Pezulich, they re-
mained on a 4-day work schedule for 4 to 6 months. He did
not recall when they returned to a full schedule. Faryniarz
testified, however, that while there were times in 1993 that
they worked only 4 days per week, they were working 5
days per week in 1994.
In November 1994, according to Pezulich and Respond-
ent’s Exhibit 3, Respondent reduced the insurance coverage
on one of its buildings and eliminated income and extra ex-
penses coverage, resulting in a refund of $3674 in premiums.
Respondent also demonstrated that its sales went from ap-
proximately $5,722,000 in 1991 to $5,706,000 in 1992;
$5,081,000 in 1993; and $3,674,000 for the first 9 months
of 1994. When the handwritten figures on Union Exhibit 1,
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626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Counsel for the General Counsel had subpoenaed more detailed
financial records which, notwithstanding my order for their produc-
tion, Respondent failed to produce, providing only its sales figures.
While the sales figures are probably the best indication of the
amount of work in the shop, the General Counsel was entitled to ex-
amine the other records to determine the veracity of Respondent’s
claims, and is entitled to an adverse inference from its failure to
comply with the subpoena and my order.
which purport to show Respondent’s sales for the last 3
months of 1994, are added in, it appears that 1994 was
slightly better than 1993, with total sales of $5,116, 540.24
Countering Respondent’s claims of a declining workload
and work force in early 1994 are Respondent’s efforts to hire
and its hiring of new employees in that year. Advertisements
were placed in Brooklyn community newspapers on January
31 and February 7, 14, and 21, 1994, seeking metal polish-
ers. The advertisements listed Respondent’s telephone num-
ber and the name of Pezulich’s secretary. Additional ads ran
on August 12 and 14, seeking a polisher. Pezulich had no
recollection of advertising for help in those periods but did
not deny that Respondent had done so.
Respondent’s records indicate that it had been hiring and
reinstating employees in 1993 and through much of 1994.
These hires include Carl Balduccio—October 20, 1993,
Rubin Ramos and Rafael Rodriguez—October 27, 1993, Jose
Veliz—December 15, 1993, Alex Castro and Rocky
Ingram—January 26, 1994, Joseph Curatola—February 9,
1994, Kenneth Rudolph—April 13, 1994, Darin Cardoza—
May 4, 1994, Jesse Bumbray—November 10, 1994, Julio Ri-
vera (reinstated)—November 15, 1994, and George Thom-
as—hired in April 1993 and reinstated on November 28,
1994.
7. Analysis—discrimination
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provides
the analytical mode for resolving discrimination cases turning
on the employer’s motivation. Under that test the Board stat-
ed in Fluor Daniel, Inc., 304 NLRB 970 (1991):
[T]he General Counsel must first make a prima facie
showing sufficient to support the inference that pro-
tected conduct was a ‘‘motivating factor’ in the em-
ployer’s decision. Once accomplished, the burden shifts
to the employer to demonstrate that the same action
would have taken place notwithstanding the protected
conduct. It is also well settled; however, that when a
respondent’s stated motives for its actions are found to
be false, the circumstances may warrant an inference
that the true motive is one that the respondent desires
to conceal. The motive may be inferred from the total
circumstances proved. Under certain circumstances, the
Board will infer animus in the absence of direct evi-
dence. That finding may be inferred from the record as
a whole. [Citations omitted.]
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge, animus, and
adverse action taken against those involved or suspected of
involvement which has the effect of encouraging or discour-
aging union activity. Farmer Bros. Co., 303 NLRB 638, 649
(1991). Inferences of animus and discriminatory motivation
may be warranted under all the circumstances of a case, even
without direct evidence. Evidence of suspicious timing, false
reasons given in defense, and the failure to adequately inves-
tigate alleged misconduct all support such inferences. Adco
Electric, 307 NLRB 1113, 1128 (1992), enfd. 6 F.3d 1110
(5th Cir. 1993); Electronic Data Systems Corp., 305 NLRB
219 (1991); Visador Co., 303 NLRB 1039, 1044 (1991);
Associacion Hospital Del Maestro, 291 NLRB 198, 204
(1988); Clinton Food 4 Less, 288 NLRB 597, 598 (1988).
I am satisfied that the General Counsel has established the
requisite prima facie case on the record before me. Respond-
ent was aware of the union activity and had demonstrated
both its hostility toward that activity and its willingness to
contravene its employees’ statutory rights to thwart it. The
coercive conduct was engaged in by the same individuals
who made the decisions and selections for layoff, a fact
which supports the inference of illegal motivation. Cor-
rugated Partitions West, 275 NLRB 894, 902 (1985). More-
over, it cannot be gainsaid but that the layoff or termination
of employees who were engaged in the union activity would
tend to discourage them, and others, from supporting the
Union. In this regard, I note, particularly, that Faryniarz,
Dargan, Rivera, and Mollison were subjected to threats, in-
terrogation, and promises of benefit and that those coercive
acts included repeated threats of layoff and discharge. The
layoffs were the fulfillment of such threats. Noted, too, is the
fact that the laid-off employees had attended union meetings,
meetings which Toussaint acknowledged were observed by
management, including himself. Lubin saw Toussaint, and
was likely seen by him, at the first union meeting. Faryniarz,
Dargan (the RD petitioner), and Mollison were among those
who spoke up at the Employer’ s March 9 antiunion meeting.
Respondent’s attempt to interpose an economic defense, on
the other hand, falls short of carrying its burden to rebut the
General Counsel’s prima facie case. Its sales figures show no
significant change from the prior year and, in the absence of
the supporting documentation sought by the General Counsel,
are not entirely reliable. It is noteworthy that in 1993 Re-
spondent had gone to a 4-day workweek for a portion of the
year, when it had similar earnings. In 1994, after the advent
of activity on behalf of a potentially less compliant union,
Respondent chose not to save the employees from the hard-
ship of layoffs by simply reducing the workweek. Rather, it
chose to layoff, and then never recall, employees, including
some obviously valued employees of long tenure. No expla-
nation was offered for its decision to lay off employees rath-
er than reduce the workweek or to fail to recall employees,
both of which were contrary to its prior practices.
Respondent took other steps which, it contends, establishes
its economic weakness, the cancellation of its employees’
health insurance, and the reduction of the insurance on one
of its buildings. Those acts were, at best, ambiguous. They
suggest that Respondent may have been having financial
problems. However, other plausible explanations, including a
desire to maximize profits, a decrease in the value of the
building or the acquisition of other insurance, may exist.
Belying Respondent’s defense of an economic condition
mandating layoffs is the evidence that, while it was laying
those employees off, it was advertising for new employees
and continued from late in 1993 through much of 1994 to
hire new employees or rehire those who had earlier worked
for the Company. Respondent neither denied nor explained
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627REGENCY SERVICE CARTS
25 Jones did not testify and the record is sparse in regard to him.
Given that the layoffs in 1994 were inconsistent with the short work-
weeks of 1993 under similar economic conditions, I would conclude
that he was unlawfully swept up with those who were laid off be-
cause of their known, perceived, or suspected union activities.
this activity. Further negating Respondent’s defense is
Pezulich’s virtual admission, to Mollison, that these employ-
ees would not be recalled ‘‘until this thing is over.’’ The ref-
erence could only be to the union activity, particularly in
light of Pezulich’s further statement, when queried by
Mollison, ‘‘Oh Lawnce, you know more than I do.’’
Based thereon, I must conclude that the General Counsel’s
prima facie case of unlawful motivation remains unrebutted.
I therefore find that Respondent laid off, and failed and re-
fused to recall, Jean Lubin, Jose Veliz, Marian Faryniarz,
Theodore Jones,25 Lawnce Mollison, and Reinaldo Rivera
because of their union activity, in violation of Section
8(a)(3).
I also find that Elick Dargan’s health insurance was can-
celed in violation of Section 8(a)(3). His uncontradicted testi-
mony that Connie Pezulich told him that it would be can-
celed ‘‘until this matter with the union is solved’’ establishes
the unlawful motivation.
8. Analysis—the challenges
Consideration of the eligibility of the challenged voters be-
gins with the premise that a ‘‘party seeking to exclude an in-
dividual from voting has the burden of establishing that the
individual is, in fact, ineligible to vote.’’ Golden Fan Inn,
281 NLRB 226, 230, fn. 24 (1986).
The Employer challenged the ballots of Marian Faryniarz,
Lawnce Mollison, Jose Veliz, Jean Lubin, and Theodore
Jones on the grounds that they had been laid off and were
not employed by the Employer at the time of the election.
I have found these individuals to have been discriminatorily
laid off and denied recall. As they would have been working
on the established eligibility date but for Respondent’s dis-
crimination against them, they remained employees who
were eligible to vote. I shall recommend that the challenges
to their ballots be overruled. C & L Systems Corp., 299
NLRB 366, 386 (1990); Ra-Rich Mfg. Corp. 120 NLRB
1444, 1447 (1958).
The Employer also challenged the ballots cast by Rubin
Ramos, Jerome Smith, Keith Jackson, Lendo Bronson, and
Anthony James on the grounds that they had been laid off
and were not employed by the Employer at the time of the
election. The record establishes that they (except possibly
Ramos) were laid off. It also establishes that most of those
laid off were told that they could expect to be recalled within
a relatively short period of time and Respondent had a prac-
tice of recalling or rehiring those whom it laid off. No evi-
dence was adduced to show that there was any fundamental
change in the nature or scope of Respondent’s business such
as might suggest that they had no reasonable expectancy of
recall. Apex Paper Box Co., 302 NLRB 67, 68 (1991). In-
deed, the Employer never claimed that these or any employ-
ees were unlikely to be recalled. Neither did it contend that
their jobs had been eliminated. See Globe Molded Plastics
Co., 200 NLRB 377 (1972), where despite depressed condi-
tions in the employer’s industry precluding any reasonable
anticipation of increased business in the foreseeable future,
the eligible voters (who were on strike) were not
disenfranchised in the absence of evidence that their work
had been permanently abolished.
With respect to Ramos, I must conclude that the Employer
has failed to show that he was not an employee on the eligi-
bility date or at the time of the election. I shall recommend
that the challenge to his ballot be overruled.
In the absence of evidence that the laid-off voters had no
reasonable expectancy of recall in the near future, I must
overrule the challenges and find all of these employees (in-
cluding those whom I have found to have been
discriminatorily laid off) eligible to vote.
The parties stipulated that Yevgeny Chernyakov and Ells-
worth Quammie were eligible voters whose names were
somehow omitted from the list. The challenges to their bal-
lots must be overruled.
Rocco Lacona was challenged by the Intervenor, Local
455, on the grounds that he was a carpenter, a category ex-
pressly excluded from the unit. The testimony of Quammie
to the effect that he only saw Lacona work with wood during
the limited times that he observed him is, I find, insufficient
to overcome Pezulich’s testimony that Lacona was an assem-
bler, working with both metal and wood products. As an as-
sembler, he would be within the overall production and
maintenance unit. I shall recommend that the challenge to his
ballot be overruled.
CONCLUSIONS OF LAW
1. By interrogating employees concerning their union ac-
tivities and sympathies, by creating the impression that the
employees’ union activities were under the surveillance of
the Employer, by promising employees benefits for not en-
gaging in union activities, and by threatening employees that
it would close the business and with layoff, discharge, and
other reprisals because they had engaged in union activities,
the Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By discharging Giovanni Trevisano, Ruperto Vasquez,
and Benjamin Ramirez because they engaged in union and
other protected concerted activities, the Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
3. By laying off and failing and refusing to recall Jean
Lubin, Jose Veliz, Marian Faryniarz, Theodore Jones,
Lawnce Mollison, and Reinaldo Rivera because of their
union activities and the union activities of other employees,
and by canceling the health insurance of Elick Dargan be-
cause of the union activities in which he and other employ-
ees were engaged, Respondent has violated Section 8(a)(3)
and (1) of the Act.
4. Respondent has not, in any other manner alleged in the
complaint, violated the Act.
5. Jean Lubin, Jose Veliz, Marian Faryniarz, Theodore
Jones, Lawnce Mollison, Anthony Thames, Jerome Smith,
Lendo Bronson, Keith Jackson, Rubin Ramos, Yevgeny
Chernyakov, Ellsworth Quammie, and Rocco Lacona were
eligible voters; the challenges to their ballots should be over-
ruled.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
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628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily discharged or laid off and failed
and refused to recall employees, the Respondent must offer
them reinstatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstate-
ment, 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). Having discriminatorily canceled Elick Dargan’s
health insurance, it must reinstate that insurance and make
him whole for any premiums paid or medical expenses in-
curred as a result of its unlawful actions, with interest.
[Recommended Order omitted from publication.]
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