CARNEGIE LINEN SERVICES, INC.

National Labor Relations Board - Administrative Judge Opinions

Jul 11, 2011

02-CA-039560 (N.L.R.B. Jul. 11, 2011)

JD(NY)–21–11
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CARNEGIE LINEN SERVICES, INC.
and Case No. 2-CA-39560

LAUNDRY DRY CLEANING & ALLIED WORKERS
JOINT BOARD, WORKERS UNITED, a/w SERVICE
EMPLOYEES INTERNATIONAL UNION
CARNEGIE LINEN SERVICES, INC.
Employer
and Case No. 2-RC-23436
LAUNDRY DRY CLEANING & ALLIED WORKERS
JOINT BOARD, WORKERS UNITED, a/w SERVICE
EMPLOYEES INTERNATIONAL UNION
Petitioner
and
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, UNION LOCAL 1964, AFL-CIO
Intervenor
Suzanne Sullivan, Esq., New York, NY,
for the General Counsel
Larry M. Cole and Nicholas Stevens, Esqs. (Starr, Gern,
Davison & Rubin, Esqs.), Roseland, NJ, for the Respondent
Bryan C. McCarthy, Esq. (O’Connor & Mangan, P.C.),
New Rochelle, NY, for Local 1964
Liz Vladeck and Ira Katz, Esqs., New York, NY, for Workers United
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge, an amended charge,
and a second amended charge filed on October 29, 2009, November 23, 2009, and January 26,
2010, respectively, by Laundry Dry Cleaning & Allied Workers Joint Board, Workers United, a/w
Service Employees International Union (Workers United or Union), a complaint was issued on
March 30, 2010 against Carnegie Linen Services, Inc. (Respondent or Employer).
The complaint, as amended at the hearing, alleges that the Respondent engaged in
surveillance of employees engaged in union activities, discharged Elida Guzman, offered Jose
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
2
Luis Diaz (Diaz) money to cease his union activity, inflicted bodily injury on Diaz in response to
his union activities and discharged him, threatened employees with plant closure if Workers
United won the election, promised employees benefits if they voted against the Union, and
caused police officers to be present in and around the Respondent’s facility on the day of the
election. The Respondent’s answer denied the material allegations of the complaint.
On December 4, 2009, Workers United filed a petition for an election in a unit of
production and maintenance employees including all packers, dock workers, and delivery
employees, and on January 20, 2010, an election was held. The tally of ballots showed that the
election was won by the Intervenor, International Longshoremen’s Association, Union Local
1964, AFL-CIO (Local 1964). Workers United filed Objections to the election and on May 13,
2010, the Regional Office issued a Notice of Hearing on Objections and Order Consolidating
Cases, which consolidated for hearing the unfair labor practice and the Objections cases.
On June 1, 2010, the hearing opened before me in New York, NY. On June 23, a Partial
Settlement Agreement was executed by counsel for the General Counsel, the Respondent, and
Workers United, and was approved by me. The Agreement settled all the allegations in the
complaint except those relating to Diaz, and also provided that the election would be set aside
and the Objections portion of the complaint would be remanded to the Regional Director to
schedule a new election “which will be directed upon resolution of the remaining allegations in
this matter.”
The hearing continued on June 23, 2010, and on January 31, and February 1, 2011.1
Findings of Fact
I. Jurisdiction and Labor Organization Status
The Respondent, a New York corporation having an office and place of business at 874
East 139th Street, Bronx, New York, is a commercial laundry. Annually, the Respondent
purchases and receives at its Bronx, New York facility, products, goods and materials valued in
excess of $50,000 directly from suppliers located outside New York State. The Respondent
admits, and I find that it is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
The Respondent also admits and I find that Workers United has been at all times a labor
organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
As set forth above, the only complaint allegations before me are those which allege that
on or about (a) November 6, 2009, the Respondent through its general manager Michael
Garlasco, offered Diaz money to cease his union activity (b) November 7, 2009, the Respondent
through its owner Gary Perlson, inflicted bodily injury on Diaz in response to Diaz’ union
activities and (c) November 10, 2009, the Respondent discharged Diaz because he joined or
assisted Workers United and engaged in concerted activities.

1 Following the close of the hearing, pursuant to a motion made during the hearing, I
received in evidence as General Counsel exhibits the transcripts of three video recordings
shown to employees. They will be discussed below.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
3
A. The Facts
1. Diaz’ Union Activities
Diaz began work for the Respondent in December, 2006, as a machine operator,
working at the tunnel washer. His duties included taking laundry from bins and loading them into
the washer. When he was hired, and until June, 2008, he worked the day shift, from 6:00 a.m. to
3:00 p.m.
In June, 2008, Diaz was asked by general manager Garlasco to work the night shift until
a new machine was installed. Thereafter, he worked at night for about six months, until
November, 2008, when the new machine was put in place. Later, he worked one week on the
day shift and was then returned to the night shift. Diaz stated that about once per month while
he was working on the night shift he asked Garlasco for a transfer to the day shift. On July 29,
he gave Garlasco a letter requesting a change to the day shift due to his health and personal
issues. Diaz’ request was denied and he continued working on the night shift.
Some time thereafter, Diaz spoke with a friend regarding Workers United and contacted
that union’s agent Jorge Deshan. Inasmuch as the Respondent had a collective-bargaining
agreement with Local 1964 which was not due to expire until February 28, 2010, Deshan
advised Diaz that Workers United could not file a petition for an election until shortly before the
contract’s expiration.
Deshan further advised Diaz that he wanted to meet with him and his co-workers on
October 26, 2009 at the Caridad Restaurant which was located about two blocks from the
Employer’s facility. Diaz told his fellow workers about the meeting.
Diaz stated that while walking to the restaurant for the meeting, he noticed Garlasco
sitting in a car, and waved to him but Garlasco did not respond.2 Diaz phoned Deshan and told
him that he saw Garlasco nearby. When Diaz arrived at the restaurant, Union agents told the
employees present that they should leave that establishment by the rear exit and enter another
restaurant through the rear door. They did so and the meeting was held at the second
restaurant, during which Diaz noticed Garlasco walking in front of that restaurant.
As the meeting ended, employee Guzman left to return to work. About 30 minutes later,
she returned and, according to Diaz, advised those present that she had been fired by Perlson
“because she had participated in the meeting.” Union agent Marcia Marchelli testified that
Guzman told the group that Garlasco fired her, explaining that “maybe he called Gary [Perlson]
and told him that I was at the meeting.” Marchelli corroborated Diaz’ testimony concerning the
employees’ move from one restaurant to the other, adding that during their transfer, Garlasco
followed them to the second restaurant.
Garlasco testified that he drove to the area of the restaurant that day in a borrowed car
because his car had been stopped by the police earlier for having a faulty light. He was in the
area to purchase parts for his car and buy lunch. He noted that this is the area he usually visits
for car parts and lunch. Garlasco stated that his workday begins at about 6:00 a.m., and that
when he arrived in the area at about 3:00 p.m. he was on his usual lunch break. He conceded
that no one would recognize the car he drove that day because it was not his vehicle. He stated
that as he was eating lunch in the car, he observed several Union agents exit their car, but did

2 Diaz testified inconsistently that Garlasco was standing at a train station.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
4
not see any employees of the Employer in the area.
Garlasco stated that as he drove back to the facility, he saw a Miron & Sons, Inc. (Miron)
truck, and one of its employees.3 At that time he believed that the Union was in the area to
speak to Miron’s employees about their upcoming contract negotiations with the Union.
Garlasco denied knowing that there would be a union meeting at the restaurant that day,
and also denied being in the area in order to discourage employees from meeting with the
Union. However, he admitted being told by certain employees, whose names he could not
recall, that employees were signing cards for the Union.
2. The Alleged Bribe and the Physical Assault
a. Diaz’ Version
Diaz stated that two weeks after the restaurant meeting with the Union, on Friday,
November 6, day manager Nelson Astacio told him that Garlasco wanted to speak with him
regarding his work shift, and asked him to go to Garlasco’s office.4 Diaz reported to the office
and asked that someone be present with him, but Garlasco refused. Diaz testified that Garlasco
told him “we’re here to talk about your shift. Forget about that. I really want to talk to you about
the union. I really want you to stop talking about Union here. But I’m going to pay you, I’m going
to give you” and then he wrote on a piece of paper the numbers $1,000, $2,000 and $3,000,
followed by a question mark. Garlasco then asked him “what is your price and don’t speak
anymore of Union,” offering to pay him in cash. Garlasco asked Diaz to tell him the next day
what his “price” was. Diaz then told Garlasco that he wanted an interpreter “just to make sure,”
but Garlasco said that an interpreter was not necessary since he “knew enough English.” Diaz
did not respond to Garlasco’s offer, and went home.
Garlasco denied offering money to Diaz to induce him to stop campaigning for Workers
United. He denied writing an amount of money on a paper, but conceded that he wrote the
times of Diaz’ new, morning shift.
Diaz stated that when he arrived at work the following day, Saturday, November 7,
Garlasco asked him to report to his office at the end of his workday so that they could speak
about his work shift. At the end of the day, Diaz went to Garlasco’s office where they spoke
alone. Garlasco said “give me your price.” Diaz responded “I don’t have a price.” Garlasco then
said that “if the union comes in we will close the company.” Garlasco did not deny making this
threat.
Diaz asked “what you want me to do?” Garlasco told him “you have to leave” and Diaz
left his office and the plant, and walked home. Supervisor Astacio came up to him and told him
that Gary Perlson, the Respondent’s owner, wanted to speak to him. Astacio did not deny
following Diaz and asking him to return to the plant.
Diaz returned to the facility and went to the office with Astacio who acted as interpreter
with him and Perlson. Garlasco was present. They all stood close to each other, with Diaz being
between two and four feet from Perlson. Diaz quoted Perlson as asking “why do you want to do
this to my company?” Diaz replied that “I want my coworkers and I to be okay.” Perlson

3 Miron & Sons, Inc., is a competitor of the Respondent.
4 Astacio is an admitted supervisor.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
5
responded “Jose, I’ve kind of turn[ed] my head on a lot of things, that you’ve done.” Diaz said “I
want better representation.” Perlson then said that he would change his shift next week.
Diaz then asked Perlson if he was changing his shift “because Park Central Hotel is
leaving?”5 Perlson and Garlasco then asked how he knew that, and Diaz replied “I just know it.”
Perlson then said “well, next week, I’m going to change your shift, but you’re not going to be
washing but you’re going to come and clean.” Diaz replied that “I have no problem with that, but
you’re going to pay me the same.” Perlson answered “well, you in fact are going to be cleaning
then. But you’re not going to be cleaning the company. You’re going to be cleaning my ass with
your mouth, mother fucker, son of a bitch, stupid. Leave my company.” Diaz then related that
Perlson removed the lid from a cup of coffee that he was holding and threw it in his face.
Garlasco and Astacio then escorted Diaz from the plant.
Outside the plant, Diaz phoned Marchelli, the Union’s organizer and told her what
happened. Diaz also told her that he felt ill, that coffee had entered his left eye in which he then
had no vision, and, as a diabetic, he went into shock. Marchelli advised him to call the police,
which he did. When the police arrived, Diaz told them that Perlson cursed him, threw hot coffee
in his face and fired him. The police left Diaz on the street and entered the plant. They returned
and told Diaz that he had not been discharged, that they were told that it was “just [an]
accident,” and Perlson asked that he return to the plant so that they could “speak calmly.”
Diaz stated that he entered the plant with the police and Perlson told him “I understand
how you’re feeling right now. It was just an accident.” Perlson said that he had not been fired,
and that the Employer would be responsible if he stayed out of work and would also pay his
bills. Diaz asked the police to check the surveillance cameras, but Perlson answered that the
cameras had not been working for about two weeks. Diaz then said that he felt badly. Perlson
told him to call an ambulance and that he would “take responsibility for any expenses and days
missed from work.”
Diaz testified that he was “confused” as to whether he was still employed, since Perlson
first told him to leave and that he did not want him in the company, but later, with the police
present, Perlson told him to take as much time off as necessary.
The police called an ambulance and Diaz went to the hospital where he was seen by a
physician who made a written diagnosis of left corneal abrasion. Upon leaving the hospital, Diaz
called Marchelli who asked him to meet with her at the Union.
On Monday, November 9, Diaz saw a physician who gave him a note that he could
return to work the next day. That day, November 9, Diaz visited the plant and gave the note to
Garlasco, who told him that he had to first call Local 1964 before he attempted to return to work.
He left and called Marchelli who advised him to write a note as to what happened. His written
description of the events, dated November 9, noted especially that Perlson “attacked me
physically, throwing a large quantity of hot coffee in my face. I had done nothing wrong. Gary
[Perlson] was angry with me for exercising my rights, that’s all.”
The following day, November 10, Diaz returned to work where he was told by Floyd Ellis,
the evening manager, that Perlson “did not want me in the company. That I was fired. And to

5 The Park Central Hotel was a major account of the Respondent. Diaz learned from a
worker at competitor Miron & Sons, Inc., that the account was put out for bids and Miron won
the bid.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
6
leave immediately.”
b. The Respondent’s Version
Garlasco testified that Diaz wanted to return to the day shift when the Employer was in
the process of purchasing and installing a large machine which would permit it to reduce the
number of washing shifts from three to two. After its installation, the Employer used the new
machine for one week, during which Diaz was transferred to the day shift, but then the machine
was not working properly, and Diaz and the other seven night shift employees were returned to
the night shift until the machine was operating satisfactorily.
Garlasco testified that on November 7, he met with Diaz in his office to inform him that
he would be transferred to the day shift beginning on Monday, November 9. Diaz told him that
he knew why he was making the change. Garlasco replied that the change was being made
because the new machine was then operational. Diaz answered that the change was being
made because the Employer was losing the Park Central Hotel account. When Garlasco
expressed disbelief, Diaz told him that “Miron” told him.6 Garlasco asked how Diaz knew such
information.
At that point, he and Diaz left the office and met Perlson, who was walking toward them
at the bottom of the stairs near a production area. Garlasco stated that the noise from the
machines was very loud and he did not know if the 3 or 4 workers in the general area could hear
the conversation. Astacio joined the group. Perlson asked Garlasco if he coordinated the shift
changes. Garlasco related that he told Diaz about the change of shifts, but that he mentioned
some “very disturbing news” about the Employer’s losing the Park Central Hotel account.
Garlasco mentioned that he was not aware that the account was in jeopardy. Perlson mentioned
that the contract was let for bids 1½ weeks before. All four men stood close to each other.
Perlson then asked Diaz how he knew about the Park Central account. Garlasco
interrupting, saying that Diaz said that Miron told him. A “very loud, back and forth” argument
ensued between Perlson and Diaz, with Perlson asking him if he was working for Carnegie or
Miron, adding that Miron was a competitor, and he (Diaz) shouldn’t know anything about this.”
Then Perlson said to Garlasco “I can’t have that guy working here if he knows this information.”
Garlasco stated that Diaz “lunged” at Perlson, making a forward motion with his hands,
but did not make contact with Perlson. Perlson then stepped back, raised his hands in a
defensive motion, and the coffee in the uncovered coffee cup that Perlson was holding was
projected forward, hitting Diaz, Astacio and Garlasco. The cup fell to the floor, hitting Garlasco’s
pants. Garlasco then escorted Diaz from the building.
Garlasco denied that Perlson threw the coffee at Diaz.
The incident report prepared by Garlasco after the incident differs from his testimony.
The report stated that Perlson told Diaz that the Employer was planning to implement the new
work schedule, whereas Garlasco testified that he told Diaz of the change in shifts. In addition,
Garlasco’s report stated that coffee was spilled on Perlson and Diaz, whereas Garlasco testified
that the coffee also hit him and Astacio. Finally, the report states that he and Astacio escorted
Diaz from the building, whereas Garlasco testified that only he walked out with Diaz, and that
Astacio walked away with Perlson in a different direction.

6 Miron Marcus is the owner of Miron.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
7
Garlasco testified that he did not know if the plant’s surveillance cameras covered the
area of the dispute, but even if they did, those cameras had not been working for several weeks.
However, Garlasco testified that surveillance cameras were very important because garments
being cleaned are worth “thousands and thousands” of dollars – “you just want to make sure
that everybody is seen and is taken care of.”
Garlasco further testified that Diaz asked him if he had been discharged. Garlasco
replied that he had just “attacked” the owner of the company and he had “inside information”
that the employer was about to lose an account – information that no one else was aware of. “I
believe you’re fired, but I’m going to call” Local 1964. He also told Diaz to call that union.
Astacio testified that he was present when Garlasco and Diaz spoke about the shift
change and Diaz mentioned that Carnegie would be losing the Park Central Hotel account. A
“real loud” argument ensued concerning how Diaz knew that the account would be lost. At that
time, Perlson told Diaz that people “giving information to another company can no longer work
for the employer.” He explained that the information that Diaz gave was that Diaz knew that the
Park Central account was going to Miron. Astacio stated that “I think Diaz tried to approach
Gary [Perlson] with a lunging forward motion.” Perlson stepped back and, putting his hands
forward, dropped the uncovered coffee cup, spilling the coffee on him, Perlson and Garlasco.
Garlasco testified that Diaz was discharged because he attacked the Respondent’s
owner, and because he possessed “confidential” information concerning the Employer’s loss of
the Park Central account, information known only to Miron and Perlson.
Garlasco conceded that an employee of Miron would know the identity of Miron’s
accounts because the laundry bins are labeled with the account’s name, and that such an
employee could have advised Diaz that Park Central was a new account of Miron. However,
Garlasco maintained that Diaz could control whether the Respondent’s Park Central account
could have become jeopardized by the manner in which he washed the linens. Garlasco
claimed that “I have my suspicions” that the loss of the account was related to Diaz’ duties,
explaining that an employee intent on such a course of conduct has the “ability to jeopardize
how we wash and how we process and how we handle that account.” He further noted that if
“somebody wanted us to lose an account and was in the position, such as Jose [Diaz], it would
very easily be tampered with.” Garlasco admitted, nevertheless, that there was no evidence in
October and November, 2009, that any employee was tampering with the laundering work.
Garlasco further stated that he did not discipline any employee in the past for speaking
to a competitor, but that doing so, under these circumstances, is a dischargeable offense, and
that the worker would be considered “at fault” for possessing information from a competitor
relating to the Employer’s loss of an account, particularly where the account was lost in a “blind
bid” process.
Garlasco denied that Diaz was fired because he helped Workers United in its effort to
organize the employees of the Employer.
Local 1964 filed a grievance in Diaz’ behalf. The arbitrator’s decision noted that Garlasco
testified there that it was his decision to terminate Diaz immediately. However, at the Board
hearing, Garlasco stated that Perlson fired Diaz by announcing that he could not have him
working there.
Garlasco, when asked why Perlson did not call the police if Diaz lunged at him, stated
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
8
that “an incident like this in comparison to some of the other things that go on at work, if I were
to call the police every time we had incidents of something like this, somebody getting bumped
and not liking it, the police might as well just set up, stand outside and wait for us to ask them to
come in.” Later, in response to a leading question by Respondent’s counsel, Garlasco said that
there was no need to call the police since Diaz had already done so, and they appeared at the
plant within minutes.
Perlson did not testify at the hearing. A criminal charge was brought against Perlson in
the Bronx County Criminal Court with respect to the November 7 incident. Perlson asserted his
Fifth Amendment right to refuse to testify. Pursuant to Section 102.31 (c) of the Board’s Rules
and Regulations, I recommended that the Board seek the approval of the Attorney General for
the issuance of an order requiring him to testify. The Board denied my recommendation,
advising that the parties may present whatever admissible evidence was available and make
any appropriate legal arguments concerning what, if any, inferences should be drawn based on
the assertion of the privilege against self-incrimination. The General Counsel’s brief requested
that I make an adverse inference from Perlson’s failure to testify.
3. The Grievance Meeting and Arbitration Hearing
On November 12, a grievance session was held at the office of Local 1964. Present
were its business agent Glenn Blicht, Garlasco and Diaz.
Diaz related the events of November 6 and 7, including that Garlasco offered him money
as a “payoff” not to bring in the Union, and that Perlson threw coffee in his face. Perlson denied
throwing coffee at Diaz, adding “I don’t want him in this company. He’s a dangerous person.
And my machines are worth millions. I don’t want him here.”
Perlson mentioned four prior instances of Diaz’ misconduct. Garlasco stated at the
Board hearing that Diaz was not disciplined for any of these incidents. They are as follows:
1. July 31, 2009: The incident report stated that “Diaz loaded a red blanket into the washer
with white items causing the white items to be dyed red. The report stated that Diaz failed to
perform his job properly and the system had to be shut down for 4 hours. This misconduct cost
the company thousands of dollars.” At the Board hearing, Diaz claimed that the machine was
shut down for only 20 minutes. He stated that, as a result of the incident, he was denied a
regular bonus and was placed on probation for one month. He stated that he was first shown
this incident report at the November 12 grievance meeting.
2. August 2, 2009: the incident report stated that “Diaz involved in a fight with Tyrone.
Surveillance video shows Diaz attacking Tyrone. The police were called and Diaz was taken to
the hospital.” Diaz’ explanation at the Board hearing was that Tyrone nearly touched him with a
cart he was pushing. Diaz warned him to be careful. Tyrone laughed at him and Diaz told a
friend that “that motherfucker” threw a cart at him. Tyrone then approached him, angered
because Diaz described him that way, and they both fought. Diaz slipped, fell to the floor and
became unconscious. He was taken to the hospital. Diaz stated that the first time he saw this
report was at the grievance session.
3. October 24, 2009: The incident report stated that “Diaz had a verbal altercation with
Rigoberto Guardado (Rigo).” At the Board hearing, Diaz claimed that Rigo displayed a knife and
Diaz called the police. When the police arrived, no weapon was found. Diaz first saw this
incident report at the grievance hearing. Garlasco did not discuss this incident with him and did
not show him the report.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
9
4. October 28, 2009: The incident report stated that “Diaz became threatening to employee
Juan (Papo) Cuadrodo. Reason unknown.” Garlasco’s written explanation of the incident was
that, as Papo was unloading his truck, Diaz approached him and complained about the way in
which Papo was working. Diaz became very loud and verbally threatening. Diaz said that he
was “going to get Papo.” Diaz’ explanation at the Board hearing was that Papo accused him of
telling his co-workers that he (Papo) told Perlson that the workers were organizing for the Union,
and they argued about that. Garlasco testified at the Board hearing that he heard from several
employees that Workers United was collecting cards form the Employer’s workers, but that this
confrontation involved Diaz objecting to the way in which Papo unloaded a truck.
An arbitration hearing was held on February 22, 2010 which was attended by Blicht and
the attorney for Local 1964. Garlasco was the sole witness. Diaz had attempted to withdraw the
grievance on the ground that Local 1964 could not represent him fairly because he was fired for
attempting to bring in another union. The request to withdraw the grievance was denied by the
arbitrator who decided to uphold Diaz’ discharge, finding that the Employer had just cause to fire
him based on Diaz’ confronting and lunging at Perlson.
The arbitrator’s decision noted that Garlasco testified there that it was his decision to
terminate Diaz immediately, whereas at the Board hearing, Garlasco stated that Perlson
announced that he could not have Diaz working there. The arbitrator’s decision also stated that
Diaz’ prior misconduct did not play a part in the decision to discharge him.
4. The Events of November, 2009
On November 26 and 27, 2009, Diaz distributed flyers in front of the plant with Union
agents Marchelli and Alvero Arroyo. Marchelli and Diaz testified that Garlasco emerged from the
plant and approached them. Garlasco asked Alvaro if he knew what he was doing. Arroyo
replied that he did. Marchelli stated that Garlsaco told them to leave since they were on private
property, and said that he would call the police. Marchelli stated that before the police arrived,
she crossed the street and handed a flyer to an employee driving a Carnegie truck. While she
was standing on the corner waiting to cross, a car attempted to run her over. She dodged the
car and crossed the street. Diaz identified the driver as Perlson.
The police arrived and the union agents told them that they were campaigning for the
union. According to Diaz, the police told him that the Employer called, complaining that they
were throwing papers on the floor. Diaz told them that Garlasco crumpled the papers he had in
his hand, saying that he wanted to read them.
Diaz testified that Perlson approached him and asked him “you didn't have enough with
the coffee? Do you want more coffee?” Marchelli’s version is that Perlson asked Diaz “do you
remember the coffee in your face?”
5. The Organizing Campaign
As set forth above, nearly one month after Diaz’ discharge, the Union filed a petition for
an election on December 4, 2009, and an election was held on January 20, 2010, which was
won by Local 1964. During the course of the organizing campaign, the Respondent showed
three videos to its employees, prepared by a consulting firm, which urged the workers to vote
against the Union. The videos stated as follows: “Many unionized industries are trying to
survive, and as a result of company unionization, job loss is not unusual; they end up shutting
their doors….Certainly, the union is not in the future of this organization, but you are. That is
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
10
why your vote is of utmost importance in these elections. Choose intelligently and vote ‘No.’” 7
Analysis and Discussion
As set forth above, certain complaint allegations were settled pursuant to an informal
settlement agreement. Accordingly, the only complaint allegations before me are (a) the alleged
offer of money to Diaz to cease his union activities (b) the alleged infliction of bodily injury on
Diaz in response to his union activities and (c) whether the Respondent discharged Diaz
because he engaged in union activities.
I. The Alleged Offer of Money to Diaz to Cease his Union Activities
As set forth above, Diaz testified that on November 6, he was told by Garlasco in his
office that he wanted him to cease talking about the Union, and then, in writing, offered him a
cash payment of $1,000 to $3,000. Garlasco told him to name his “price” the following day. At
the end of his work shift the next day, November 7, Diaz was asked by Garlasco for his “price”
and Diaz said that he did not have a price. Diaz then went home.
Garlasco denied offering a bribe to Diaz to cease speaking about the Union and also
denied writing a sum of money on a piece of paper. However, he conceded writing the time of
Diaz’ new, morning shift on the paper.
I credit Diaz’ testimony. Diaz gave precise, specific testimony about an event that would
certainly have made an impression on him. The fact that Diaz did not give Garlasco an answer
at the first meeting and then was asked for his response at a second meeting the next day lends
credence to Diaz’ testimony that he was offered a bribe.
It is significant that, after refusing Garlasco’s offer on November 7, Diaz went home, but
was called back by supervisor Astacio to meet with Perlson. Astacio did not deny asking Diaz to
return to the plant. Perlson then asked Diaz why he was “doing this to my company” and Diaz
replied that he wanted him and his co-workers to benefit from representation. Perlson then
subjected Diaz to a highly offensive comment, and threw coffee in his face.
A proper inference may be made, which I make, that after Diaz left the plant after having
refused Garlasco’s offer, Garlasco informed Perlson that Diaz could not be bribed to cease his
activities in behalf of the Union. Diaz was then called back to the plant to face Perlson’s fury.
This sequence of events also supports Diaz’ testimony that he was the subject of an attempted
bribe.
I cannot credit Garlasco’s testimony. Diaz was familiar with the morning shift’s hours,
having worked that shift for two years. Accordingly, it was unnecessary for Garlasco to have
written the hours of the shift for Diaz. He could have simply told Diaz the hours of the new shift.
In addition, Diaz was apparently selected for an individual meeting with Garlasco. There is no
evidence that any of the other members of the night shift who would be transferred on the next
work day were the subject of a similar one-on-one meeting with the general manager.
Accordingly, I credit Diaz’ testimony that Garlasco wrote the amount of the attempted bribe on a
piece of paper.
I accordingly find and conclude that, as alleged, the Respondent offered money to Diaz

7 G.C. Exhibit 47, pp. 10, 17.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
11
to cease his union activities in violation of Section 8(a)(1) of the Act. Storall Mfg. Co., 275 NLRB
220, 233 (1985); Roth’s IGA Foodliner, Inc., 259 NLRB 132, 133 (1981).
II. The Alleged Discrimination Against Diaz
The complaint alleges that the Respondent inflicted bodily injury on Diaz in response to
his union activities, and discharged him because of those activities.
A. The General Counsel's Case
Diaz engaged in activities in behalf of the Union. I find, as set forth above, that Diaz
contacted the Union in October, 2009, in response to the Respondent’s repeated rejections of
his requests to return to the day shift. He spoke to his co-workers about a union meeting to be
held at the Caridad Restaurant on October 26.
I also find that the Respondent possessed knowledge of Diaz’ union activities. Garlasco
was concededly in the area of the restaurant on the day of the meeting, and also admitted
seeing Union agents nearby. Diaz credibly testified that he saw Garlasco in a car near the
restaurant and waved at him, and that he, his co-workers and the Union agents took evasive
action in order to avoid being seen by Garlasco, by exiting the rear door of one restaurant and
entering the back door of another eatery.8
Garlasco denied being in that area to spy on the Union meeting and also denied seeing
any of the Respondent’s employees there. However, his presence in a borrowed car and eating
lunch in that car raise some suspicions as to his purpose in being in the area at that time. First,
it is odd that Garlasco chose to eat lunch in a car nine hours after he arrived at work at 6:00
a.m. Further, Union agent Marchelli’s testimony that Garlasco followed them from one
restaurant to the other, and Diaz’ testimony that he saw Garlasco walking in front of the second
restaurant make an inference permissible that Garlasco learned about the meeting and was
there to note who was in attendance.
Knowledge of Diaz’ union activities is also established by Diaz’ credited testimony and
my finding, above, that Garlasco offered him a bribe to cease his union activities.
The General Counsel has proven that the Respondent possessed animus toward Diaz’
union activities. As set forth above, I have found that the Respondent offered him money to
cease his union activities, and I have also credited Diaz’ undenied testimony that, in the course
of that conversation, Garlasco told him that “if the union comes in we will close the company.”
That threat, which is a violation of the Act, was alleged in the original complaint and has been
settled. Accordingly, I make no separate finding that the threat violated Section 8(a)(1) of the
Act. However, it may be used to show union animus by the Respondent.
In addition, the Respondent mounted an anti union campaign prior to the election in
which urged its employees to vote against the Union and showed videos to them. The videos
stated, in part, that job loss and plant closure are not unusual results of unionization, and that
the union “is not in the future of this organization.” The Board has held that “an employer’s

8 I recognize that Diaz gave somewhat contradictory testimony regarding Garlasco’s location
when he waved at him. Nevertheless, I do not believe that this is fatal to a finding that his
testimony, as to the critical events concerning his meetings with Garlasco and Perlson, is
credible.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
12
expression of antiunion comments … while not themselves violative of the Act, nevertheless did
establish animus toward its employees’ union activities.” Lampi LLC, 327 NLRB 222, 222(1998);
Affiliated Foods, Inc., 328 NLRB 1107, 1107 (1999).
The General Counsel argues that additional animus toward the Union has been proven
by the unlawful discharge of Guzman. On this record, I cannot find that it has been proven that
Guzman was unlawfully terminated. As set forth above, Diaz gave hearsay testimony that
Guzman returned to the restaurant and told those present that she had been fired for attending
the union meeting. However, Marchelli stated that Guzman had been fired perhaps because
Garlasco told Perlson that she had been at the meeting. Guzman did not testify. Accordingly,
this record does not support a finding that Guzman was fired unlawfully.
It is significant that minutes after Diaz refused Garlasco’s offer of a bribe to cease
speaking about the Union, he met with Garlasco and Perlson during which Perlson threw a cup
of coffee in his face and then discharged him. The close timing between the threat to close the
company, the offer to bribe Diaz and the assault on Diaz and his firing strongly support a finding
that the Respondent was motivated by Diaz’ union activities in taking these actions against him.
The Respondent denies that Perlson intentionally threw coffee into Diaz’ face. Garlasco
and Astacio testified that following a heated argument between Perlson and Diaz concerned
with Diaz’ knowledge of the loss of the Park Central account, Diaz lunged at Perlson who
defensively stepped back and, in a defensive motion, raised his hand which held the coffee and
spilled the coffee over Diaz and the others present.
I credit Diaz’ testimony concerning this incident. He carefully quoted the outrageously
hostile remarks made to him by Perlson, words which undoubtedly remained in his memory. He
also precisely described how Perlson took the lid off the coffee cup and threw its contents in his
face. I cannot credit the testimony of the Respondent’s witnesses. As set forth above, the
incident report prepared by Garlasco differed from his testimony regarding who was hit by the
coffee and who escorted Diaz from the building. There was no evidence that anyone else was
hit in the face with the coffee although all four men were standing very close to each other.
Rather, Garlasco stated that when the cup, fell his pants were stained by the coffee. Diaz’ eye
injury was immediately confirmed by a physician at the hospital he visited immediately after the
incident.
The events immediately following that incident also lend credence to Diaz’ testimony.
Thus, when Diaz left the plant he called the police and told them that Perlson had cursed him,
thrown coffee in his face and fired him. Diaz’ contemporaneous, written account of the incident
is consistent with his testimony. Further, when Diaz entered the plant with the police officers, he
asked them to check the surveillance cameras. That request establishes that Diaz sought to
obtain documentation of Perlson’s attack. If he had indeed lunged at Perlson it is not likely that
he would ask the police to obtain proof of his alleged assault on Perlson. Significantly, Perlson
responded that the cameras had not been working for about two weeks. At the hearing,
Garlasco said that they had not been functioning for “several” weeks. Perlson did not tell the
police, as Garlasco testified at hearing, that he was not certain whether the altercation was in an
area covered by the cameras. Thus, it is clear that the cameras did record the event at issue. In
addition, if the cameras were as important as Garlasco claimed they were – the garments were
worth thousands and thousands of dollars and “you just want to make sure that everybody is
seen and is taken care of,” it is unlikely that the Respondent would have let the cameras go
unrepaired for weeks.
Perlson’s response to the police also supports Diaz’ version of the incident. Thus,
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
13
according to Diaz’ credited testimony, Perlson told him and the police that the coffee incident
was “just an accident,” that Diaz had not been fired, and that he could take time off to recover,
and the Respondent would pay his bills. Clearly, if Diaz had lunged at Perlson and had been the
actual aggressor in the confrontation, Perlson would have informed the police that the incident
was Diaz’ fault, and would not have offered to remedy the situation as he did. It must be
concluded that, at that time, Perlson knew that he was responsible for the physical assault on
Diaz and, at least with the police present, sought to minimize the damage he caused by offering
to give Diaz time off from work and pay his physician’s bills. Perlson’s remorse apparently
disappeared three days later when Diaz returned to the plant and was told that he had been
fired.
In addition, the mutually corroborative testimony of Diaz and Marchelli concerning their
distribution of flyers in front of the plant in late November, support a finding that Perlson
intentionally threw the coffee at Diaz. Perlson approached them on the street and made a
reference to the coffee incident, asking Diaz if he “did not have enough coffee, do you want
more coffee” or “do you remember the coffee in your face?”
I accordingly find and conclude that the Respondent, by Perlson, inflicted bodily injury on
Diaz by throwing coffee in his face. Extreme Building Services Corp., 349 NLRB 914, 914
(2007); Staten Island Bus Co., 312 NLRB 416, 416 (1993).
Diaz’ discharge clearly grew out of his refusal to accept a bribe to cease his union
activities minutes before the assault. Perlson’s upset at Diaz was manifested by his throwing a
cup of coffee in his face and then, either that day or within the next three days, discharging him.
The close timing of the offer of money to Diaz to cease speaking about the Union, his refusal to
accept a bribe, his telling Perlson that he was engaging in union activities in order to protect
himself and his coworkers and that he wanted better representation, Perlson’s cursing Diaz and
throwing coffee at him, followed by his discharge, all support a finding that the discharge was
motivated by the Respondent’s animus toward Diaz’ for engaging in union activities.
B. The Respondent’s Defenses
The Respondent asserts, as set forth above, that Perlson did not throw coffee at Diaz,
and that it did not discharge him because of his union activities. Rather, the Respondent
contends that it fired Diaz because he possessed confidential information known only to Perlson
that the Employer was losing the Park Central account to Miron, a competitor, and because he
lunged at Perlson during their argument on November 7.
Diaz’ source of information was a friend who worked at Miron. There is no allegation that
he improperly obtained that information from any other source. The laundry bins at Miron
contain the names of Miron’s accounts, and Diaz was told by his friend that the Park Central
account was obtained by Miron. Accordingly, the information possessed by Diaz was not
confidential. Indeed, the Respondent’s laundry bins are also labeled with the names of the
accounts so that the laundry would not be mixed with other hotels’ wash.
Perlson was upset that his worker possessed this information. But, nevertheless, it is
apparent that the Respondent would not have discharged Diaz for possessing this information
because Diaz did nothing wrong in obtaining it or mentioning it to Perlson. I find that Garlasco’s
credibility was harmed by his exaggeration of Diaz’ alleged misconduct in this regard. He
speculated that he was “suspicious” that Diaz intentionally caused the Park Central account to
be lost by tampering with the laundry. However, Garlasco conceded that there was no evidence
to support such a claim. See Troxel Co., 305 NLRB 536, 536 (1991), where the Board rejected
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
14
the employer’s argument that it fired an employee because it was concerned that her “attitude
created a risk that in her capacity as a quality control inspector she might allow defective
products to pass through or even sabotage its operations” where there was no evidence that the
worker was inclined toward sabotage.
As to the Respondent’s other defense, that Diaz was discharged for lunging at Perlson
during their argument, as set forth above, I discredit the testimony of Garlasco and Astacio as to
this incident.9 I have found that Diaz did not lunge at Perlson. Garlasco and Astacio denied that
Diaz made contact with Perlson. It would seem that if Diaz was intent on causing harm to
Perlson he would physically attack Perlson rather than lunge at him. They were face to face.
Therefore, I cannot credit their testimony that Diaz lunged at Perlson.
Even assuming that Diaz lunged at Perlson, it is significant that, in part of his testimony,
Garlasco, when asked why he did not call the police immediately, stated that he did not consider
it to be that serious – “an incident like this in comparison to some of the other things that go on
at work, if I were to call the police every time we had incidents of something like this, somebody
getting bumped and not liking it, the police might as well just set up, stand outside and wait for
us to ask them to come in.”10 Accordingly, a finding may be made that, at least initially, the
Respondent did not regard Diaz’ lunging at Perlson to be a dischargeable offense.
That finding is supported by Perlson’s comments immediately following the incident. He
told the police and Diaz that he had not been discharged, that he should take some time off and
that the Respondent would pay his medical bills. Diaz’ actions on November 10 when he
returned to work are consistent with his belief that he had not been fired. Thus, he returned to
work when his physician said he could and was told when he arrived that he had been fired.
Perlson did not testify, asserting his privilege against self incrimination pursuant to the
Fifth Amendment. The General Counsel asks that I draw an adverse inference from his failure to
testify. In Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), the Supreme Court stated that “the
Fifth Amendment does not forbid adverse inference against parties to civil actions when they
refuse to testify in response to probative evidence offered against them….”
Here, I need not draw an adverse inference from Perlson’s failure to testify. I find that the
credited testimony and circumstantial evidence present in the record are sufficient to support the
finding of violations which I make, even absent Perlson’s testimony. Thus, I have discredited the
testimony of Garlasco and Astacio as to the critical events at issue here - the offer of money to
Diaz so that he would cease speaking about the Union, and the incident in which Perlson threw
coffee in Diaz’ face.
Analysis
The Respondent discharged Diaz based on his conduct at the November 7 meeting with
Perlson. It is clear that the meeting was an outgrowth and a continuation of Garlasco’s unlawful

9 No other misconduct committed by Diaz in the course of his employment was considered
in making the decision to discharge him. Indeed, according to Garlasco, no discipline had been
given to Diaz as a result of prior instances of misconduct.
10 I note that later, in response to a leading question from his counsel, Garlasco stated that
an immediate call to the police was not necessary since Diaz had already called them and they
were at the scene within minutes. Significantly, the Respondent’s witnesses did not testify that
they told the police that Diaz had lunged at Perlson.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
15
attempt to bribe him the previous day. Thus, on November 6, Garlasco offered money to Diaz in
an attempt to stop him from speaking about the Union. Diaz did not respond to the offer, and the
next day, November 7, at the end of his shift, Diaz was again asked by Garlasco how much
money he wanted to cease his activities in behalf of the Union. Diaz said that he was not
interested in money. He left work and was approached by supervisor Astacio who asked him to
return to the plant to speak with Perlson.
At that meeting, Perlson asked Diaz “why do you want to do this to my company” and
Diaz replied that he wanted himself and his coworkers to be “okay” and he wanted better
representation. Perlson announced that Diaz’ shift would be changed the following week at
which point Diaz mentioned that he knew that the Respondent had lost the Park Central
account. Perlson then made a highly offensive remark to Diaz, cursed him and threw coffee in
his face. Thereafter, Diaz was discharged.
The meetings between Garlasco and Diaz on November 6, and continuing on November
7 involved Diaz’ activities in speaking about the Union. The Respondent violated the Act in
those meetings by offering him money to cease his activities in behalf of the Union. Diaz
engaged in union activities by refusing to accept an offer of money to cease speaking about the
Union.
The meeting with Perlson also involved Diaz’ union activities because Perlson asked him
why he was doing what he was doing “to my company,” a clear reference to his activities in
behalf of the Union which he believed would harm the Respondent. Diaz’ response that he
wanted to help his coworkers and sought “better representation” also involved the exercise by
Diaz of protected activity in defending his right to engage in union activities.
Because it is undisputed that Diaz’ discharge was precipitated by his conduct at the
November 7 encounter with Perlson , the appropriate analysis is whether the conduct for which
he was discharged was initially protected under the Act and, if so, whether he lost that
protection at any point. Atlantic Steel, 245 NLRB 814, 816 (1979); Alcoa, Inc., 352 NLRB 1222,
1226 (2008). See Hahner, Foreman & Harness, Inc., 343 NLRB 1423, 1425 fn. 8 (2004).
In Atlantic Steel, the Board identified four factors to be balanced in making that
determination: (1) the place of the discussion, (2) the subject matter of the discussion, (3) the
nature of the employee's outburst, and (4) whether the outburst was, in any way, provoked by
the employer's unfair labor practices. The Act allows some latitude for impulsive conduct by
employees in the course of protected concerted activity, but, at the same time, recognizes that
employers have a legitimate need to maintain order. The balance between these policy
concerns lies at the heart of the Atlantic Steel analysis.
I must note, at the outset, as set forth above, that the evidence does not support a
finding that Diaz lunged at Perlson or that he possessed confidential information concerning the
loss of the Park Central account. But even assuming that he did lunge at Perlson and
possessed confidential information, I will undertake the following Atlantic Steel analysis.
A. The Place of the Discussion
The first factor, the place of the discussion, favors protection in the circumstances of this
case. According to Diaz, who I credit, the conversation took place in Perlson’s office, in the
presence of management officials, and not in a work area where other employees could
overhear their conversation. Even according to Garlasco, who stated that the confrontation took
place at the bottom of a staircase in an area near where 3 or 4 employees were working,
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
16
because of the loud noise of the machines he did not know whether they could hear the
conversation. Accordingly, there is no evidence that other employees heard the discussion.
Accordingly, it has not been shown that Diaz’ actions could have affected workplace discipline. I
thus conclude that the first factor favors protecting Diaz’ conduct.
B. The Subject Matter of the Discussion
The second factor, the subject matter of the discussion, strongly favors protection. The
November 7 confrontation was a continuation of the dialogue between Garlasco and Diaz which
began the previous day and continued in the morning of the day Diaz was discharged. Thus,
Diaz was offered and refused to accept a sum of money to cease his union activities. After he
refused and when he was walking home, he was called back to meet with Perlson who accused
him of harming the Employer. Diaz defended his right to speak about the Union for the benefit of
himself and his coworkers and in order to receive better representation. Accordingly, Diaz was
plainly engaged in protected conduct. Because defending protected activity is itself protected,
see Network Dynamics Cabling, Inc., 351 NLRB 1423, 1429 (2007), and because asserting
fundamental rights under the Act strongly favors protection, see Stanford Hotel, 344 NLRB 558,
559 (2005), this factor weighs heavily in favor of protection.
C. The Nature of the Conduct
The third factor, the nature of the conduct, also favors protection. I have found, above,
that Diaz did not possess confidential information and did not lunge at Perlson.
However, even assuming that Diaz possessed confidential information and lunged at
Perlson, the record does not demonstrate that Diaz’ conduct on November 7 was so egregious
as to be considered indefensible. As noted above, the Board has allowed a degree of latitude in
circumstances where employees are engaged in allegedly inappropriate, yet protected activities.
As set forth above, Diaz’ knowledge that Miron obtained the Park Central account was
obtained by a friend who worked at Miron. There was no allegation that Diaz acted improperly in
any way in learning that information, or that he came upon such information from the
Respondent’s records. As to the allegation that Diaz lunged at Perlson, as set forth above, he
made no contact with Perlson, and apparently just made a forward motion. Also, as set forth
above, Garlasco testified that such conduct was not considered to be serious, and Perlson did
not immediately discharge Diaz for his alleged conduct, but said that he could return to work
when he felt better. Accordingly, the Respondent did not, at that time, consider his conduct to be
a dischargeable offense.
The Board has found protected an employee who spoke loudly, stood up and moved
toward a supervisor who threatened him with discharge. Alton H. Piester, LLC, 353 NLRB 369,
374 (2008). Here, Diaz and Perlson engaged in a heated argument. There was no evidence at
all as to what Diaz said, if anything, during that argument. I find that Diaz’ conduct on October
November 7, was not so opprobrious as to remove his protected, concerted and union conduct
from the protection of the Act. Atlantic Steel Co., above.
D. Provocation by the Respondent
The final factor, provocation by the employer's unfair labor practices, similarly favors
protection. Diaz’ alleged lunging at Perlson, and indeed the entire incident, were triggered by
Garlasco’s threat to close the shop, his unlawful offer to pay Diaz to cease his union activities,
Perlson’s highly offensive description of Diaz’ upcoming work duties, the stream of obscenities
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
17
directed at him, and his question to Diaz as to why he was acting against the Employer. Without
these unfair labor practices, there would have been no discussion or confrontation between
Perlson and Diaz. As such, this factor favors protection. See Stanford Hotel, 344 NLRB 558,
559 (2005).
Much more serious conduct, including physical assaults, if found to have been provoked
by the employer, precludes the employer from relying on such misconduct to justify discharge.
In Key Food, 336 NLRB 111, 113 (2001), the Board stated that it has “long recognized
that an employer cannot provoke an employee to the point where he commits an indiscretion
and then rely on that conduct to terminate his employment.” In that case, an employee touched
a supervisor on the shoulder with his finger following the supervisor’s “profane and abusive
tirade.” See also Palagonia Bakery Co., 339 NLRB 515, 532 (2003), where the employee
cursed at the supervisor and struck him with his finger; E.I. DuPont de Nemours, 263 NLRB
159, 159-160 (1982) where an employee’s open palmed push of a supervisor who had
harassed him was deemed insufficient to justify his discharge.
It is significant that here it is not alleged that Diaz cursed at Perlson or touched him.
Rather, it is clear that the combined actions of Garlasco in asking Diaz on consecutive days to
accept a bribe to cease speaking about his union activities, and Perlson’s demand to know why
he was acting against the Employer together with his cursing and offensive remarks provoked
Diaz to allegedly lunge at Perlson.
In summary, all four Atlantic Steel factors weigh in favor of Diaz retaining the protection
of Section 7. Because Diaz’ activity remained protected, his discharge violated Section 8(a)(3)
and (1) of the Act.
Conclusions as to the Representation Case
As set forth above, on January 20, 2010, Local 1964 won an election in Case No. 2-RC-
23436. Workers United filed Objections to the election and on May 13, 2010, the Regional
Office issued a Notice of Hearing on Objections and Order Consolidating Cases, which
consolidated for hearing the unfair labor practice and the Objections cases. On June 23, a
Partial Settlement Agreement was executed by counsel for the General Counsel, the
Respondent, and Workers United, and was approved by me. The Agreement, in part, provided
that the election would be set aside and the Objections portion of the complaint would be
remanded to the Regional Director to schedule a new election upon the resolution of the
remaining complaint allegations.
It will be ordered that the representation proceeding be remanded to the Regional
Director for the purpose of conducting a second election.
Conclusions of Law
1. By offering Jose Luis Diaz money to cease his union activity, the Respondent violated
Section 8(a)(1) of the Act.
2. By inflicting bodily injury on Jose Luis Diaz in response to his union activities, the
Respondent violated Section 8(a)(1) of the Act.
3. By discharging Jose Luis Diaz because he assisted and joined Workers United and
engaged in concerted activities, the Respondent violated Section 8(a)(1) and (3) of the Act.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
18
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Jose Luis Diaz, it must offer him
reinstatement and shall make him whole for any loss of earnings and other benefits suffered as
a result of the unlawful action against him. Backpay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010). The Respondent shall also be required to remove from
its files any and all references to the unlawful discharge, and to notify Diaz in writing that this
has been done and that the warning and discharge will not be used against him in any way.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondent, Carnegie Linen Services, Inc., Bronx, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Offering money to employees to cease their union activity.
(b) Inflicting bodily injury on employees in response to their union activities.
(c) Discharging employees because they joined and assisted Laundry Dry Cleaning &
Allied Workers Joint Board, Workers United, a/w Service Employees International Union, or any
other labor organization and engaged in concerted activities.
(d) 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 effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Jose Luis Diaz full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Jose Luis Diaz whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)–21–11
5
10
15
20
25
30
35
40
45
50
19
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Jose Luis Diaz in writing
that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional 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 records, 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 facility in the Bronx, New York,
copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
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 copy of the notice
to all current employees and former employees employed by the Respondent at any time since
November 6, 2009.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
(g) IT IS FURTHER ORDERED that Case No. 2-RC-23436 is severed and remanded to
the Regional Director for Region 2 for the purpose of conducting a second election.
Dated, Washington, D.C., July 11, 2011
____________________
Steven Davis
Administrative Law Judge

12 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-21-11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT offer money to you to encourage you to cease your union activity.
WE WILL NOT inflict bodily injury on you in response to your union activities.
WE WILL NOT discharge or otherwise discriminate against you because you join or assist Laundry Dry Cleaning &
Allied Workers Joint Board, Workers United, a/w Service Employees International Union or any other labor
organization and engaged in concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer Jose Luis Diaz full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Jose Luis Diaz whole for any loss of earnings and other benefits suffered as a result of the
discrimination against him
WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful
discharge, and within 3 days thereafter notify Jose Luis Diaz in writing that this has been done and that the discharge
will not be used against him in any way.
CARNEGIE LINEN SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.