Amersino Marketing Group, LLC

National Labor Relations Board - Board Decisions

Nov 19, 2007

351 N.L.R.B. 1055 (N.L.R.B. 2007)

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 BOARD1056
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 BOARD1058
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 BOARD1060
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 BOARD1062
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 BOARD1064
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.