Amersino Marketing Group, LLC

AMERSINO MARKETING GROUP, LLC 351 NLRB No. 58 1055 Amersino Marketing Group, LLC, and Industrial Workers of the World. Cases 29–CA–27623, 29– CA–27624, and 29–CA–27808 November 19, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND KIRSANOW On February 27, 2007, Administrative Law Judge Mi- chael A. Rosas issued the attached decision. The Gen- eral Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order.2 The judge found that the Respondent did not violate Section 8(a)(3) and (1) of the Act by terminating em- ployee Eliezer Gallardo because he engaged in protected union activity. The judge found that the General Counsel failed to meet his initial burden, under Wright Line,3 of establishing that Gallardo’s protected conduct was a mo- tivating factor in the Respondent’s decision to discharge him. Specifically, the judge found that Gallardo was ter- minated after he stated that he would no longer perform part of his job, and that there was no connection between this adverse action and Gallardo’s union activity. The General Counsel excepts, arguing that the Respondent’s conduct, which demonstrated animus towards Gallardo’s union activity, provoked Gallardo’s refusal to perform inventory work. For the following reasons, we find, in 1 There are no exceptions to the judge’s findings that (a) the Re- spondent violated Sec. 8(a)(1) by threatening the futility of collective bargaining if the employees selected the Union; (b) the Respondent violated Sec. 8(a)(3) by discharging employees Manual Lopez and Juan Antonio Rodriguez because of their protected activity; (c) the Respon- dent did not violate the Act by discharging employee Diego Lezama; and (d) the Respondent did not violate Sec. 8(a)(1) by Henry Wang’s physical altercation with Eliezer Gallardo outside the facility on April 29, 2006. 2 We shall substitute a new notice that conforms to the Board’s stan- dard language. 3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). “Under the Wright Line test, the General Counsel has the initial burden of establishing that employees’ union activity was a motivating factor in the Respondent’s taking action against them. . . . If the General Counsel makes this initial showing, the burden then shifts to the Respondent to prove as an affirmative defense that it would have taken the same action even if the employees had not engaged in protected activity.” El Paso Elec. Co., 350 NLRB 151, 153 (2007). agreement with the judge, that Gallardo’s discharge was not unlawful. Facts On April 28, 2006,4 after a month of union activity,5 an election was held among the Respondent’s employees. Gallardo served as the Union’s election observer. During the election, Gallardo challenged 22 determinative bal- lots, more than half of those cast. On April 29, shortly after the workday had begun, Henry Wang, the Respondent’s owner and president, called Gallardo into his office. Wang asked Gallardo why he had not listed three pallets of garlic on the previ- ous day’s inventory. When Gallardo said he forgot, Wang swore at him and asked if he had been asleep. Gal- lardo told Wang not to talk to him like that. Wang then said he could not look at Gallardo “with good eyes after what had happened the day before,” referring to Gal- lardo’s conduct as the Union’s election observer. Wang told Gallardo he would be terminated if he made another mistake. Gallardo replied that Wang could not terminate him because he belonged to a union now, and that if he was terminated others would leave. Gallardo then reminded Wang that he had previously asked to be relieved of the inventory work. At the time of Gallardo’s previous request, Wang had said that he would try to get someone else to do inventory. Now, however, he stated that he wanted Gallardo to continue doing it. He added, “[I]f you can’t accept this job, I have no job for you here.” Gallardo responded that he would not do the inventory, and added that other employees would walk out if he no longer had a job there. Wang said, “Go ahead.” Gallardo then left Wang’s office and told other employees that Wang had terminated him. A few minutes later, Wang came out of his office and told Gallardo he was terminated. As stated above, the judge found that the General Counsel failed to meet his initial burden, under Wright Line, because the General Counsel did not establish a connection between the termination and Gallardo’s pro- tected activity. In his exceptions, the General Counsel argues that he met his initial burden because the evidence shows that the Respondent’s animus towards Gallardo’s protected union activity was a motivating factor in Wang’s decision to discharge him. The General Counsel further contends that the Respondent failed to establish 4 All dates are in 2006. 5 On March 20, Gallardo and other employees signed a petition re- questing that the Union represent the employees, and they confronted Henry Wang, the Respondent’s owner and president, demanding that two discharged individuals be reinstated. On April 10, Gallardo and other employees went on strike for a day and picketed the Respondent’s facility, protesting reductions in their paychecks. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056 that Gallardo would have been terminated in the absence of his union activity. Specifically, the General Counsel argues that Wang made unlawful statements that provoked Gallardo into refusing to perform inventory. In support, the General Counsel notes the judge’s finding that Wang’s reaction to the inventory mistake was pretextual. The General Coun- sel cites Board precedent holding that an employer may not provoke an employee into committing an indiscretion and then use that indiscretion as a pretext to discharge the employee because of his union activities. See, e.g., Louisiana Council No. 17, AFSCME, 250 NLRB 880, 886 (1980) (discharge unlawful where employee’s pur- ported misconduct was provoked by employer’s unlawful suspension and transfer). Assuming arguendo that the General Counsel sus- tained his initial burden under Wright Line, we find that the Respondent met its rebuttal burden by showing that it legitimately terminated Gallardo for refusing to perform his assigned inventory work. Analysis It is axiomatic that an employer may lawfully take ap- propriate action, including discipline and discharge, to address an employee’s insubordination. Moody Chip Corp., 243 NLRB 265, 273 (1979) (discharge lawful because employee refused to work); Arduini Mfg. Corp., 153 NLRB 887, 903 (1965) (“[U]nion activity neither confers immunity from discipline by the employer nor guarantees the union member immunity from discharge for cause.”). Here, the record shows that Wang dis- charged Gallardo only after Gallardo’s insubordinate announcement that he would no longer perform one of his required duties—the inventory. As noted above, prior to their confrontation, Gallardo had asked Wang to reassign this task to another em- ployee. Wang said he would try to find someone else to do the work. He did not promise Gallardo that he would reassign the task. Thereafter, when the garlic pallet error came to light, Gallardo reminded Wang of his prior re- quest. Wang denied the request and informed Gallardo that he must continue doing inventory.6 At that point, Gallardo angrily announced that he would no longer do inventory and walked out. Thus, it is clear that Gallardo acted in response to the Respondent’s lawful denial of his request to have the inventory duties reassigned. Even assuming arguendo that Wang’s reprimand of Gallardo for the inventory mistake was a pretext, it did not provoke Gallardo’s refusal to perform the inventory work. That refusal was prompted by Wang’s denial of 6 There is no contention that Wang denied Gallardo’s request be- cause of Gallardo’s protected activity. Gallardo’s prior request to reassign the work. It was at that point that Gallardo angrily announced that he would not perform the inventory work. Nor do the facts show that Gallardo was provoked by Wang’s statement that he could not look at Gallardo “with good eyes after what had happened the day before.” Rather, as noted above, Gallardo did not refuse to perform his job until after Wang denied his prior request for a change of work as- signment. Significantly, it was Gallardo who raised the issue by reminding Wang about the prior request; had he not done so, the matter of work assignment would not have arisen.7 In contending that Wang unlawfully provoked Gal- lardo, the General Counsel cites cases that are clearly distinguishable. In each, the employer’s unlawful con- duct provoked the employee misconduct. See generally Louisiana Council No. 17, AFSCME, supra, 250 NLRB at 886 (employee’s disparaging remarks, failure to show initiative, and failure to follow instructions provoked by unlawful suspension and transfer); Spartan Equipment Co., 297 NLRB 19 (1989) (employee’s false filing of criminal charge provoked by immediately preceding threat of job loss, threat of job loss for wife, threat of denial of future promotions, cursing, and wagging a fin- ger in his face); Paradise Post, 297 NLRB 876 (1990) (employee’s leaving of job with headache provoked by argument over employer’s unlawful deduction of pay for time spent attending collective-bargaining sessions, and its refusal to remedy matter); Brunswick Food & Drug, 284 NLRB 663 (1987), enfd. mem. 859 F.2d 927 (11th Cir. 1988) (employee’s apology to customers for mana- gerial conduct in “excited manner” was provoked by employer’s unlawful removal of union representatives from the premises); NLRB v. M & B Headware Co., 349 F.2d 170 (4th Cir. 1965) (employee’s threat of harm and rudeness to company official provoked by employer’s discriminatory transfer, discharge, and refusal to rein- state). In the instant case, by contrast, the record indicates that Gallardo’s response was not to any unlawful con- duct, but instead to the Respondent’s prior lawful refusal to relieve Gallardo of inventory duties. He did not get what he wanted, and essentially told his boss that he was helping himself by refusing to do his assigned work. Thus, even if one could characterize Gallardo as having been “provoked,” his insubordinate reaction was to Wang’s lawful directive to continue performing inven- tory work, unlike the cases cited by the General Counsel, 7 At the hearing, Gallardo neither contended that Wang’s statements provoked him nor testified as to his reasons for refusing to perform his assigned duties. AMERSINO MARKETING GROUP, LLC 1057 where the employers’ unlawful conduct provoked the misconduct for which the employee was disciplined. For these reasons, we find that the Respondent did not unlawfully provoke Gallardo’s refusal to do his job. Thus, the Respondent has shown that it would have dis- charged Gallardo even in the absence of his protected activity, because of his refusal to perform the inventory duties. Accordingly, we adopt the judge’s dismissal of this complaint allegation. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Amersino Marketing Group, LLC, Brooklyn, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. 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 the futility of collective bargain- ing if you select the Industrial Workers of the World or any other union as your collective-bargaining representa- tive. WE WILL NOT discharge or otherwise discriminate against any of you for supporting the Industrial Workers of the World or any other labor organization. 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 Manuel Lopez and Juan Antonio Rodriguez full reinstatement 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. WE WILL make Manuel Lopez and Juan Antonio Rod- riguez whole for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Manuel Lopez and Juan Antonio Rodri- guez, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. AMERSINO MARKETING GROUP, LLC Marcia Adams, Esq., for the General Counsel. Jeff Fox, Esq. (Wu & Kao), of New York, New York, for the Respondent. Stuart Lichten, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Brooklyn, New York, on November 8, 9, and 30, 2006. The charges in Cases 29–CA–27623 and 29–CA–27624 were filed May 9, 2006.1 The charge in Case 29–CA–27808 was filed July 11, 2006. An order consolidating cases, consoli- dated complaint and notice of hearing issued July 21, 2006 (the complaint). The Industrial Workers of the World (the Union) alleges that Amersino Marketing Group, LLC (the Respondent or the Company), by its president, Henry Wang, informed em- ployees on or about April 10 that joining the Union would be futile because the Respondent would never join the Union; and engaged in the following conduct against employees in order to discourage them from engaging in protected concerted activi- ties: discharged Diego Lezama on April 24; shoved Eliezer Gallardo, told him not to speak with new employees, and dis- charged him on April 29; suspended Juan Antonio Rodriguez on April 29 and discharged him on May 2; and discharged Manuel Lopez on May 2. The Respondent denied suspending, locking out, or terminating any employees because of their activities or support of the Industrial Workers of the World, or otherwise engaging in any unfair labor practices. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respon- dent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a domestic corporation, has its principal of- fice and place of business in Brooklyn, New York, where it annually purchases and receives goods and materials valued in excess of $50,000 from entities located outside the State of New York. The Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- 1 All dates are in 2006, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058 ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is a produce wholesaler in Brooklyn, New York. It mainly distributes fresh vegetables from its facility to customers throughout New York City. Henry Wang owns the Company and serves as president. Guo You Min (Guo) directly supervises employee operations. Employees consist of ware- house employees, drivers, and helpers. They generally work Monday through Saturday and start work between 5:30 and 6 a.m.2 The four discriminatees were employed by the Respondent at various times. Gallardo had been around the longest. He was hired in May 2002 and had several responsibilities. Gallardo operated a forklift, loaded and unloaded trucks, and cleaned the cooler. Since 2004, Gallardo had also been required to take daily inventory of merchandise in the warehouse. Diego Lezama was hired as a warehouse driver in October 2005. Juan Antonio Rodriguez and Manuel Lopez worked as driver’s help- ers. Rodriguez was hired in November 2004; Lopez was hired in September 2005. B. Employees Initiate Union Activity In mid-February 2006, Billy Randel and Burt Pickard, co- organizers for the Union, met several of the Respondent’s em- ployees while making deliveries to another business near the Respondent’s facility. They spoke about working conditions in the facility and exchanged information. Toward the end of Feb- ruary or beginning of March, Randel and Pickard met with several of the Respondent’s employees at the Union’s Brooklyn office and discussed following up on a Department of Labor wage and hour complaint that had been previously filed.3 On March 18, the Respondent terminated two employees, Rene Pulidos and Manuel Lopez.4 Later that day, Gallardo, Lezama, and several other employees discussed the situation and decided to call Randel for assistance. Lezama called Ran- del, told him Pulidos and Lopez had been discharged, and that workers wanted them reinstated. Randel suggested they meet before work on Monday morning, March 20. At about 5:30 a.m. on March 20, Randall and Pickard met at a nearby coffee shop with a group of employees, including Gallardo, Lezama, Rodriguez, Lopez, and Pulidos. They each signed a petition requesting union representation. The petitions were backdated to March 15. The group then decided to go the facility and have Randel request that the Respondent recognize 2 I generally found Wang credible, except where I note his testimony to be contradicted by the weight of other credible and or undisputed evidence. 3 This finding is based on the unrefuted testimony of Gallardo and Randel. Although I did not find Randel credible on the issue of the dates that union authorization forms were signed (see fn. 5 below), I found credible most of his testimony regarding subsequent events that transpired. (Tr. 73–77.) 4 Wang’s testimony that Guo terminated Lopez and Pulidos for in- competence was not refuted. (Tr. 233–237.) the Union and reinstate Lopez and Pulidos.5 The union representatives and the employees arrived at the Respondent’s facility shortly before 6 a.m., just as Guo was arriving. Randel told Guo to advise Wang that the Union wanted to speak with him. Guo went inside, but no one came out. A few minutes later, Randel went inside, saw Wang seated at a desk in his glass-enclosed office, and shouted for him to come outside and speak with his employees. A few minutes later, Wang came outside. He asked the employees why they had not yet reported to work. Randel introduced himself and informed Wang the employees had joined the Union and would be filing a petition for a representation election. He also de- manded reinstatement of Pulidos and Lopez, the payment of the minimum wage, and overtime pay. Wang attempted to ignore Randel and addressed the employees. He insisted that he com- plied with wage laws, and refused to rehire Pulidos and Lopez. At that point, Randel told Wang the union supporters would be on strike that day. Pickard translated the discussion to Spanish for the benefit of the employees present.6 Wang went back in- side the facility, but reappeared a few minutes later. He agreed to reinstate Lopez and Pulidos, pay minimum and overtime wages, and allow for a lunch hour, but asked the strikers to return to work. By 6:30 a.m., all of the strikers, including Pulidos and Lopez, had returned to work.7 Later that day, Randel, on behalf of the Union, filed with the Board a petition for certification of representative of “all full- time and regular part-time warehouse employees, drivers and helpers.” It excluded “all office clerical employees, supervisors and guards.” On April 6, the Respondent signed a Stipulated Election Agreement scheduling a representation election for April 28. That agreement was approved by the Regional Direc- tor on April 7.8 C. Employees Concerted Activities on April 10 There were no further incidents until the second week in 5 The weight of the credible evidence indicates that the authorization forms were not signed on March 15, but rather, during the morning before work on March 20. Randel testified that he was notified of the terminations on March 18, but that the employees previously signed authorization forms on March 15. In contrast to other events, however, he did not provide details of a meeting with the employees on March 15. (Tr. 75–77.) Gallardo initially testified that he signed the form the next workday after Pulidos and Lopez were terminated on March 18. However, he then retracted that statement, said he did not have a good recollection of the date, looked at the authorization form, and changed the termination date to March 14. No one else testified that March 14 was the termination date. (Tr. 17–20; GC Exh. 5.) Rodriguez testified, in response to a leading question in which he was shown the dated document, that he signed the form on March 15. (Tr. 105–107; GC Exh. 5.) I was not convinced. As such, I relied on the testimony of Lezama that the terminations occurred on March 18 and, even though the form was dated March 15, he signed it on March 20. (Tr. 132–134; GC Exh. 6.) 6 Wang referred to the Hispanic employees as “amigos,” a term that means “friends” in Spanish and, under the circumstances, was not meant to be derogatory. (Tr. 238.) 7 The testimony of Wang, Randel, and the employees was fairly con- sistent regarding their encounter during the morning of March 20. (Tr. 22–23, 80–82, 107–108, 135–138, 237–238, 279–280.) 8 GC Exhs. 2–3. AMERSINO MARKETING GROUP, LLC 1059 April, when several employees noticed reductions in their pay- checks. On or about April 9, several employees met with Ran- del. He suggested they confront Wang about the pay issues at the Respondent’s facility. At around 6:05 a.m. on April 10, about 15 employees approached the front of the Respondent’s facility. They were joined by Randel. The employees carried signs and set up a banner that read, “Amersino unfair. Pay what you owe.” A few minutes later, Gou came out and asked Ran- del what was happening. Randel told him they wanted to meet with Wang about some problems. After about a half hour, Wang came out and asked what the problem was. The employees present included Gallardo, Rodri- guez, Lezama, Pulido, Lopez, and Rodriguez. Randel and sev- eral employees said that their paychecks had been reduced in- appropriately. Wang then asked why the employees did not come to speak with him and why they always needed to bring in the Union. He also charged the Union was “brainwashing” the employees, “holding his company hostage,” and proclaimed he would never accept the Union: “over my dead body there will be a union in this plant.” After the discussion went on for a while, Randel told Wang that he would have to resolve the employees’ pay issues or they would remain on strike. Wang agreed and the employees returned to work.9 As the employees punched in, Wang began yelling at Lezama and another employee, “Cristobal,” said they were stupid for bringing in the Union, and reaffirmed his opposition to the Union: “The company is too small. If we wanted to have a union, to go somewhere else.” At that point, Lezama walked out and urged others to do the same. In response, Lezama and Gallardo, followed by other employees, walked out of the facil- ity and onto the street. Gallardo then called Randel and told him what was happening. Randel told him to wait until he ar- rived. Randall arrived within 20 to 30 minutes and spoke with the employees. As he spoke with them, a van left the facility. About 30 minutes later, the van returned with replacement workers. Several employees, including Gallardo, approached the van after it parked on the Respondent’s driveway. Randel and the strikers then appealed to the replacement workers for solidarity and implored them to leave. The replacement workers agreed and left.10 Some time later, Wang came back out and told the employees to return in the afternoon to meet with him individually and correct any problems.11 The striking employees returned that afternoon and met indi- vidually with Wang in his office and discussed their pay issues. 9 The testimony of Randel, Lezama, and Lopez, whom I found to be the most credible of the discriminatees, regarding Wang’s antiunion statements was confirmed by Wang’s testimony that he “repeatedly expressed in my personal opinions that I am opposed to unions in our company and that is crystal clear.” (Tr. 86–87, 141–142, 177–178, 255.) 10 Gallardo was evidently mistaken about Wang pushing him on April 10, as Randel, Rodriguez, and Wang each testified that the alter- cation occurred on April 29. (Tr. 27, 92–93, 114, 251.) 11 I did not credit Lezama’s assertion that Wang said that “those of us that wanted to work without a union, to come back in around 2 o’clock in the afternoon.” (Tr. 145.) That testimony contradicted oth- erwise credible testimony by Randel and Gallardo regarding April 10. In his conversation with Lezama, Wang said that “the Union was no good,” and promised the employees a lot of things, but would not deliver. He added that he would have to deduct taxes if he had to pay by the hour. Furthermore, if the employees insisted on union representation, he would require the produc- tion of “green cards” or other legal documentation. Lezama told Wang he would “leave” the Union.12 Gallardo’s meeting with Wang was the last one of the day. Wang asked Gallardo what was going on. Gallardo explained that Wang had been withholding $5–10 each week from each paycheck. He also said that Guo was not the ideal person to be handling money. Wang said he would see what he could do. Gallardo then asked if it would be possible to relieve him of his inventory responsibilities and allow him to do his other two jobs—operating the forklift and cleaning the cooler. Wang said he would try to get someone else to do the inventory.13 D. Lezama’s Termination On April 17, Lezama asked his supervisor, Guo, for permis- sion to take off from work on April 18 and 19 in order to attend a criminal court proceeding 1 day and a dermatology appoint- ment another day. Guo gave him permission to take the time off. However, instead of returning to work on Friday, April 20, he did not return to the Respondent’s facility until April 24—an absence of 4 workdays. He arrived at around 9 a.m., which was about 3-1/2 hours late. Obviously not intending to work that day, Lezama was dressed in leisure attire, not his usual com- fortable working clothes. He did not punch in and entered the facility. Guo saw Lezama and asked why he had not shown up for work. Lezama did not respond and proceeded to a break area, where he spoke with several employees. Wang saw Lezama talking to other employees and walked out of his office to speak with him. He asked Lezama why he had been absent for 4 workdays. Lezama told him that he saw a doctor about his pimples and had a court appearance, but did not show him a doctor’s note. Wang said it was unacceptable that Lezama was unable to work because of a pimple. Of par- ticular importance to Wang was the fact that Lezama was one of only four employees who operated the forklift, a vital role in the Respondent’s operation. Lezama then asked if he could return to work the next day. In accordance with his policy of replacing employees who had been absent for 2–3 days without permission or do not call in sick before the workday begins, Wang told Lezama he had been terminated.14 12 This finding is based on the credible testimony of Gallardo and Lezama, which went unrefuted by Wang. (Tr. 25–26, 142–143, 146– 147.) 13 Wang testified that he called for replacement workers on two oc- casions and protestors confronted the replacement workers each time. He recalled an instance on April 29, but did not identify, nor provide details about the other occasion. (Tr. 271.) Accordingly, I base my findings concerning the events of April 10 mainly on the unrefuted testimony of Randel and Gallardo. (Tr. 23–28, 86–87.) 14 I based this finding primarily on the testimony of Wang and Guo, and did not credit Lezama’s assertion that he was discharged because of his union activity. Nor did I credit Lezama’s testimony that he pro- duced the dermatologist’s office receipt, dated April 19, to Wang on April 24. (GC Exh. 8.) Even if he had, I find it credible that Wang would have found it unacceptable for Lezama to have taken off two DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060 E. Employees Concerted Activity on April 29 On April 28, the Board conducted a representation election at the Respondent’s facility. Gallardo voted and was the sole observer on behalf of the Union. He challenged 22 challenged ballots. Rodriguez and Lopez also voted. The majority of the voters were of Asian descent. On April 29, the day after the election, Randel stood outside the facility and spoke with employees as they reported to work. He briefed them about the election and the likelihood that a hearing would be scheduled to determine the outcome. By 6 a.m., all of the employees had reported to work and he left.15 A little while later, Gallardo had finished loading a truck when Wang called him into his office. Wang asked Gallardo why he did not list three pallets of garlic on the inventory sheet. Gallardo said he forgot. Wang responded with an expletive and asked if Gallardo was asleep on the job. Gallardo told Wang not to speak to him like that. Wang responded that he could not look upon Gallardo with “good eyes” after what happened at the election.” Wang then threatened to terminate Gallardo if he made another mistake. This was unusual, since Gallardo had never been threatened with disciplinary action before for mis- takes he made with inventory.16 Gallardo told Wang that he could not terminate him because there had been an election and he now belonged to a union. Gallardo said that if Wang termi- nated him, others will also leave. He also reminded Wang about his request to have someone else do the inventory. Wang said he did not care about that and wanted Gallardo to do it. He warned Gallardo that, “if you can’t accept this job, I have no job for you here.” Gallardo insisted he would not do inventory and threatened that other employees would walk out with him if he was terminated. Wang dared Gallardo to carry out his threat. Gallardo then walked out and informed the other employees that Wang terminated him. Since Wang had not told him he was terminated, Gallardo’s statement could only mean that he considered himself terminated because he would no longer do inventory as required by Wang as a condition of his employ- ment. At that point, Rodriguez, having heard and seen the discus- sion between Wang and Gallardo, went over to Wang’s office and, even though the door was open, banged on Wang’s office window several times with a cellular telephone, and motioned for Wang to come outside. Wang came out of his office and Rodriguez told him there was no reason to yell at Gallardo. Wang told Rodriguez he was suspended for his behavior. Wang then walked out onto the warehouse floor and told Gallardo that he was terminated. A group of about 10 employees, including extra workdays after taking off 1 day for a court appearance and an- other for a doctor’s appointment. Moreover, on this issue, Lezama displayed a lackadaisical demeanor, a spotty recollection, and his testi- mony was evasive and contradictory, especially his attempt to hide the fact that part of his absence was as a defendant in a criminal proceed- ing. (Tr. 148–152, 155–157, 207–213, 215, 217, 219, 294–295; R. Exh. 2.) 15 GC Exh. 4; Tr. 29–30, 40, 66, 89, 108, 179. 16 Wang recalled that Gallardo made such mistakes two or three times in the past, but conceded that he would simply ask Gallardo “to make a correction or just pointed it out and asking him to be more careful in the future.” Tr. 262–264. Gallardo, Rodriguez, and Lopez, then walked out the facility. They gathered outside and Gallardo called Randel.17 A few minutes later, at about 6:30 a.m., Randel arrived and spoke with the group of about 20 employees. Pickard came a few minutes later. They spoke with the employees, who de- cided to set up a picket line. As they spoke, a van carrying no passengers left the facility. At about 9:30 a.m., Wang came out and asserted the right to suspend Rodriguez for insubordination. In the presence of the striking employees, which included Gal- lardo, Rodriguez, and Lopez, he told Randel he would “be sorry you’re doing this.” Wang accused Randel of trying to “kidnap” his business and insisted his facility would “never go union. I’ll close first.” Randel then told Wang to “go away, we don’t really want to talk to you right now.” A short while later, the van returned with passengers. Randel and the protestors correctly assumed the passengers were re- placement workers. Several picketers blocked the vehicle from entering through the driveway entrance to the facility. The van parked and the passengers exited the van on the driveway. As they attempted to enter the facility, the picketers urged them to refrain from working for the Respondent. Wang delved into the crowd, pushed Gallardo and told Gallardo not to talk to the replacement workers because he had been terminated. Gallardo agreed to refrain from any further action, but told Wang not to push him. Randel intervened and pulled Gallardo away.18 Wang reentered the facility, but returned later and told the protestors to return at 2 p.m. for their salaries. He also re- minded Rodriguez he was suspended. At approximately 2 p.m., the employees returned for their paychecks. Guo handed them out, as Wang stood next to him. With the exception of Gallardo and Rodriguez, Wang told the employees to return to work on May 1, when he would determine who would continue to work 17 Contrary to what Gallardo told his fellow workers after he left Wang’s office, Wang did not tell Gallardo, while the latter was in his office, that he was terminated. Gallardo testified that Wang threatened to terminate him if he made another mistake, insisted he continue doing the inventory, and that he then walked out of Wang’s office. Wang conceded that they had an “intense” conversation about the mistake and that he told Gallardo that “if he can’t accept this job, I have no job for you here.” (Tr. 30–34, 41–42, 227–228, 239–242, 259–262.) Rodri- guez’ testimony confirmed that Wang did not terminate Gallardo until Wang came out of his office to speak with Rodriguez. However, I did not credit that portion of Rodriguez’ testimony that he lightly tapped his cell phone on Wang’s window. His courtroom demonstration, in which he very lightly tapped the wall with his cell phone, was ex- tremely guarded and led me to believe that he was lying on this point. (Tr. 109–111, 125–128.) 18 Wang’s testimony that protestors blocked the van from entering the facility was not refuted by Gallardo, Rodriguez, or Randel. He did not, however, specify which protestors blocked the van. On the other hand, I credited their testimony that Wang pushed Gallardo, since he conceded that he went into the crowd, thought the protestors were “going to be violent” and “disruptive, so a lot of things went through my mind at that time.” (Tr. 26–27, 89–93, 114–117, 243–246. 250– 251.) There was no testimony by other employees, however, that they heard Wang tell Gallardo or any striking employee they could not speak to the replacement workers. Accordingly, I credit Wang’s unre- futed testimony that he did not attempt to discourage employees—as opposed to Gallardo—from speaking to the replacement workers. (Tr. 272, 277.) AMERSINO MARKETING GROUP, LLC 1061 for him. Wang cursed at Rodriguez, told him to leave, and told Gallardo that he preferred to go to court rather than have Gal- lardo work there.19 F. The Termination of Lopez and Rodriguez Notwithstanding the fact that Wang told the workers to re- turn to work on May 1, he was aware of the fact that May 1 was a day of nationwide mass demonstrations by Hispanic workers. One was scheduled for Manhattan, but during the morning, a group of about 40 Hispanic employees and other union sup- porters participated in a previously scheduled 4-hour protest until 10 a.m. in front of the Respondent’s facility. At that point, the protestors left for the demonstrations in Manhattan. Wang noticed that Lopez and Rodriguez were in the group.20 On May 2, Lopez, Rodriguez, and the other Hispanic em- ployees arrived at work at their regular time and attempted to punch in, but Wang told them to return at 2 p.m. At or around that time, Wang met individually with each employee. During his individual meetings with Lopez and Rodriguez, Wang told each of them that he found temporary replacement workers and did not have work for them. In Lopez’ case, Wang asked him to leave his telephone number so he could call him if he had more work for him. Wang has never recalled either employee to work since that day.21 III. LEGAL ANALYSIS A. The 8(a)(1) Charges The complaint alleges that the Respondent, by Wang’s con- duct, violated Section 8(a)(1) by: (1) informing employees on April 10 that it would be futile to join the Union because the Respondent would never recognize the Union; and (2) shoving an employee on April 29 because he was engaging in union activity and told an employee not to speak with new employees. The Respondent denied the allegations. Absent threats or promise of benefit, an employer is entitled to explain the advantages and disadvantages of collective bar- gaining to its employees in an effort to convince them that they would be better off without a union. Langdale Forest Products Co., 335 NLRB 602 (2001). An employer violates Section 8(a)(1), however, by threatening employees that any attempt to bring in a union would be futile. Winkle Bus Co., 347 NLRB 1203, 1205 (2006), citing Well-Stream Corp., 313 NLRB 698, 19 With the exception of Gallardo’s hearsay testimony regarding an alleged comment made by Wang to an unspecified employee, I credited the unrefuted testimony of Gallardo and Rodriguez regarding this event. (Tr. 40–41, 112–113, 251.) 20 There is no doubt that May 1 was a day of nationwide protests, that the Respondent’s Hispanic employees were absent from work for that purpose, and that Wang anticipated this and condoned it. However, Lopez’ testimony indicating that he may have attempted to punch in that day was extremely spotty, uncertain and contradictory. Accord- ingly, I did not credit that aspect of his testimony. (Tr. 113, 176–181, 196, 202, 251–253.) 21 I found Lopez more credible than Wang on this point and, as such, credited his testimony that Wang requested his telephone number and he gave it to him. Lopez was very forthright in stating that he could not recall specific dates, but on this issue, he seemed certain. Wang, on the other hand, equivocated as to whether Lopez left a telephone number. Tr. 182–185, 275–276. 706 (1994). An unlawful threat of futility is established when an employer states or implies that it will ensure its nonunion status by unlawful means. Ready Mix, Inc., 337 NLRB 1189, 1190 (2002). The credible evidence established that on April 10, Wang told employees, in pertinent part, that he would never accept the Union and that a union would come into his plant only “over his dead body.” Mindful of the high burden the Board has injected into the assessment of futility threats, Wang’s threat to fight to the death clearly met that standard. His remark revealed his intent to undertake all means—lawful or unlawful—to pre- vent the Union from coming into the Respondent’s facility. Under the circumstances, Wang’s threat violated Section 8(a)(1). The credible evidence also established that Wang shoved Gallardo as he spoke or attempted to speak with replacement workers and rebuked Gallardo for his efforts. However, other than Gallardo, a nonemployee at the time, and Randel, there is no evidence that other employees heard Wang’s comments. Even if other employees saw Wang push Gallardo, his conduct occurred as striking employees prevented a van with replace- ment workers from entering the facility. Under such circum- stances, it was not established that Wang’s actions tended to restrain employees in the exercise of their Section 7 rights. Wackenhut Corp., 348 NLRB 1290, 1290 (2006). B. The 8(a)(3) and Charges The complaint alleges that the Respondent, by Wang, vio- lated Section 8(a)(3) and (1) by: discharging Lezama on April 24; discharging Gallardo on April 29; suspending Rodriguez on April 29, and discharging and refusing to reinstate him on May 2; and discharging Lopez on May 2. The Respondent denies the charges and alleges that the discriminatees were either dis- charged for cause or went on strike and were appropriately replaced by other workers. Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Gen- eral Counsel has the initial burden of establishing that the em- ployee engaged in concerted protected activity, “the employer had knowledge of the employee’s protected activities, the em- ployer took adverse action against the employee, and the em- ployee’s protected concerted activity was a motivating factor in the employer’s adverse action against the employee.” Southside Hospital, 344 NLRB 634 (2005). Once these elements have been established, the burden shifts to the Respondent to prove, by a preponderance of the evidence, that it took the adverse action for a legitimate nondiscriminatory reason. There is extensive evidence of the Respondent’s union ani- mus. On April 10, Wang accused the Union of “brainwashing” his employees, “holding his company hostage,” insisted there would never be a union at his facility, and directed employees to seek employment elsewhere if they wanted a union. On April 29, Wang told Gallardo that he viewed him negatively because of his observer role on behalf of the Union at the April 28 elec- tion. Later that day, Wang accused union representatives of attempting to “kidnap” his business, and insisted the Respon- dent would close before accepting union affiliation. He also shoved Gallardo as he confronted replacement workers that day DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062 but, by that time, Gallardo had already been terminated. 1. Gallardo Gallardo engaged in an extended amount of concerted activ- ity for over 5 weeks prior to his discharge on April 29 and Wang was well aware of it: Gallardo signed a union- authorization slip on March 20; was part of a group of employ- ees and union representatives that requested recognition of the Union, and confronted Wang in front of the facility on March 20 and April 10 about employee terminations and wage issues; he confronted replacement workers on April 10 and 29; in his individual meeting with Wang on April 10, complained about inappropriate payroll deductions and questioned Guo’s compe- tency to handle the payroll; and, at the representation election on April 28, he voted, was the sole observer on behalf of the Union, and challenged 22 ballots. The credible evidence established that Wang terminated Gal- lardo after the latter walked out of Wang’s office on April 29. Wang had pointed out mistakes by Gallardo in performing in- ventory that, because of the intensity of Wang’s reaction to the mistake and his statement that he now viewed Gallardo nega- tively, indicated that the inventory issue was pretextual. At that point, however, there was no adverse action, as Gallardo had not been terminated. He was only threatened with termination if he made another inventory mistake. Gallardo then escalated the dispute by insisting he would no longer perform inventory be- cause Wang promised to look into the situation on April 10. Wang rejected that ultimatum, told Gallardo he would be ter- minated if he refused to do inventory, and Gallardo walked out. Gallardo then told other employees that he had been termi- nated, but that was only true, at that point, in the constructive sense; Gallardo essentially resigned. Once Wang came out on the floor, after being confronted by Rodriguez, he then told Gallardo that he had been terminated. In essence, Wang’s discussions with Gallardo were replete with 8(a)(1) violations, but Gallardo was not terminated as a direct result of his involvement in protected concerted activi- ties. On April 10, Wang promised to look into Gallardo’s com- plaint about having to do the inventory along with his other duties. However, there was no guarantee, nor was there any discussion prior to April 29, that Gallardo would be relieved of those duties. Gallardo then resigned and/or was terminated because he refused to perform inventory duties. Accordingly, there is no connection between Gallardo’s termination and his protected concerted activity. Thus, the evidence failed to sup- port a prima facie case of an 8(a)(3) violation against Gallardo. 2. Lezama Lezama engaged in protected concerted activity for over 4 weeks prior to his discharge on April 24 and Wang was well aware of his involvement: Lezama signed a union-authorization slip on March 20; was part of the groups that confronted Wang about employee conditions on March 20 and April 10, and con- fronted replacement workers on April 10. The credible evi- dence revealed, however, that Lezama pushed the proverbial envelope too far. Lezama requested permission on April 17 to take 2 days off to attend to a court case and a doctor’s appointment. His super- visor, Guo, approved the request. Instead of returning to work on April 19, however, Lezama took 2 additional workdays off without requesting permission. To make matters worse, he arrived at the facility 3-1/2 hours late on April 24, but was not prepared to work. He was “dressed-up” and not in the usual comfortable work attire that employees wore, did not punch in and went to a nonwork area where he engaged in conversation with other employees. When confronted by Wang, Lezama did not provide a satisfactory excuse for the additional 2 days that he took off without permission and was terminated. As there was no credible evidence to refute Wang’s testimony regarding the Respondent’s time and attendance procedures, it is evident that Lezama was terminated for reasons unrelated to his pro- tected concerted activities. Therefore, the proof in support of Lezama’s 8(a)(3) claim also failed to establish a prima facie case. 3. Lopez and Rodriguez Rodriguez and Lopez engaged in protected concerted activity for nearly 4 and 6 weeks, respectively, prior to their discharge on May 2, and Wang was well aware of their involvement: They signed union authorization slips on March 20; partici- pated in the groups that confronted Wang about employee con- ditions on March 20 and April 10; voted in the election; con- fronted replacement workers on April 10 and 29; and protested in front of the Respondent’s facility on May 1. The credible evidence established that Wang told Lopez, Rodriguez, and the other employees, after striking on April 29, to return on May 1, at which time he would determine who would continue to work for the Respondent. In fact, the Re- spondent knew that May 1 would be a day of nationwide pro- tests by Hispanic workers and that none of the Hispanic em- ployees would be reporting to work that day.22 On May 2, Lo- pez and Rodriguez attempted to punch in at the regular time for work, but Wang told them to return at 2 p.m. At or around that time, Wang met individually with each returning employee. In his meetings with Lopez and Rodriguez, Wang did not mention anything about their absence from work on May 1. Instead, Wang told them that he had replaced them with temporary workers and did not have work for them. Wang did not explain how this could have occurred, since he made no mention of that fact on April 29 when he told Lopez and others to return on May 1. Furthermore, it is unrefuted that there was no work on May 1 and that Lopez and Rodriguez reported to work at the regular time on May 2, only to be told to return at 2 p.m. They have never been called back to work. Given their extensive support for Union, Wang’s awareness of it and the timing involved, there is compelling evidence con- necting Wang’s union animus to the termination of Lopez and Rodriguez on May 2. As such, under Wright Line, the burden of persuasion shifted to the Respondent to establish, by a prepon- derance of the evidence, that it had a legitimate reason for re- fusing to reinstate Lopez and Rodriguez—in this case, that they were permanently replaced. If so, the Respondent would not have been justified in not offering them reinstatement. L.B.&B. Associates, Inc., 346 NLRB 1025, 1031 (2006); Avery Heights, 343 NLRB 1301, 1305 (2004); NLRB v. Fleetwood Trailer Co., 22 April 30 was a Sunday and the Respondent’s facility was closed. AMERSINO MARKETING GROUP, LLC 1063 389 U.S. 375, 378 (1967); Capehorn Industry, 336 NLRB 364, 365 (2001); Augusta Bakery Corp., 298 NLRB 58, 59 (1990), enfd. 957 F.2d 1467 (7th Cir. 1992). In order to establish a legitimate and substantial business jus- tification for refusing to reinstate striking employees, however, the employer must provide specific proof that the strikers’ posi- tions were actually filled by permanent replacements. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345–346 (1938); Supervalu, Inc., 347 NLRB 404, 420 (2006); Capehorn Industries, supra; Fleetwood Trailer Co., supra. The Respon- dent failed to make such a showing. Indeed, Wang told the workers that he filled their positions with temporary workers. Under the circumstances, the Respondent violated Section 8(a)(3) by refusing to reinstate Lopez and Rodriguez after they engaged in protected concerted activity. CONCLUSIONS OF LAW 1. Amersino Marketing Group, LLC is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Industrial Workers of the World is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening the futility of collective bargaining if the Union came in, the Respondent violated Section 8(a)(1) of the Act. 4. By discharging and refusing to reinstate Manuel Lopez and Juan Antonio Rodriguez because they supported the Union, the Respondent violated Section 8(a)(3) of the Act. 5. By engaging in the conduct described above, the Respon- dent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent, having discriminatorily discharged and re- fused to reinstate Manuel Lopez and Juan Antonio Rodriguez, 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 rein- statement, 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 recommended23 23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. ORDER The Respondent, Amersino Marketing Group, LLC, Brook- lyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening the futility of collective bargaining if the Re- spondent’s employees select the Industrial Workers of the World or any other union as their collective-bargaining repre- sentative. (b) Discharging or otherwise discriminating against any em- ployee for supporting the Industrial Workers of World or any other union as their collective-bargaining representative. (c) In any like or related manner interfering with, restraining, 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 effec- tuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Manuel Lopez and Juan Antonio Rodriguez full reinstatement to their former jobs or, if their jobs no longer exists, to a sub- stantially equivalent position, without prejudice to their senior- ity or any other rights or privileges previously enjoyed. (b) Make employees Manuel Lopez and Juan Antonio Rod- riguez whole for any loss of earnings and other benefits suf- fered as a result of the discrimination against them, in the man- ner set forth in the remedy section of the decision. (c) Within 14 days from the date of the Board’s Order, re- move from its files any reference to the unlawful discharges, and within 3 days thereafter notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (d) 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 in electronic form, 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 fa- cility in Brooklyn, New York, copies of the attached notice marked “Appendix.”24 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 con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 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 facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a 24 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064 copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since April 10, 2006. (f) Within 14 days after service by the Region, mail copies of the attached notice marked Appendix, at its own expense, to all warehouse employees, drivers and helpers who were employed by the Respondent at its Brooklyn, New York facility at any time from the onset of the unfair labor practices found in this case until the completion of these employees’ work at that job- site. The notice shall be mailed to the last known address of each of the employees after being signed by the Respondent’s authorized representative. (g) 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.