Deep Distributors of Greater NY d/b/a The Imperial Sales, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 6, 2016

29-CA-147909 (N.L.R.B. May. 6, 2016)

JD(NY)-13-16
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK OFFICE
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE
IMPERIAL SALES, INC.
and 29-CA-147909
UNITED WORKERS OF AMERICA, LOCAL 660
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE
IMPERIAL SALES, INC.
and 29-CA-157108
HENRY HERNANDEZ, AN INDIVIDUAL
and
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE
IMPERIAL SALES, INC.
and 29-RC-146077
UNITED WORKERS OF AMERICA, LOCAL 660
Henry J. Powell and Emily A. Cabrera, Esqs.,
for the General Counsel.
Saul D. Zabell, Esq. (Zabell & Associates, P.C.),
Bohemia, NY, for the Respondent.
Sheri Preece, Esq. (Bryan C. McCarthy, Esq. & Associates, P.C.)
Brewster, NY, for the Union.
Decision
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on charges and amended charges
filed by United Workers of America, Local 660 (Union) in Case No. 29-CA-147909, and based
on charges and amended charges filed by Henry Hernandez in No. 29-CA-157108, an
amended consolidated complaint was issued against Deep Distributors of Greater NY d/b/a
The Imperial Sales (Respondent or Employer) on October 30, 2015.1

1 The charge, first amended charge and second amended charge in Case No. 29-CA-
149709 were filed by the Union on March 10, 12, and August 31, 2015, respectively. The
charge, first amended charge, and second amended charge in Case No. 29-CA-157108 were
filed by Henry Hernandez on July 31, September 24 and November 3, 2015, respectively.
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The complaint, as amended at the hearing, alleges that the Respondent (a) by its agent
Amjad Malik, gave employees the impression that their union activities were under surveillance
and (b) by its manager Miller, threatened employees with unspecified reprisals if they selected
the Union as their representative; told employees that it would be futile to select the Union as
their collective bargaining representative, and threatened employees with discharge if they
selected the Union as their representative.
It is also alleged that on March 6, 2015, the Respondent discharged Jose Wilfredo
Argueta, Jose Martin Torres, and Jose Michel Torres because they joined and assisted the
Union and engaged in concerted activities.
It is further alleged that in about July, 2015, the Respondent’s employees including
Henry Hernandez, Marvin Hernandez, Roberto Reyes, Javier Reyes and Augustin Sabillon,
engaged in concerted activities with other employees by filing a lawsuit which alleged that the
Respondent was violating the Fair Labor Standards Act (FLSA).
It is alleged that on about July 14, 2015, by Tony Bindra, interrogated employees about
their involvement in the FLSA lawsuit and threatened them with unspecified reprisals because
of their involvement in the filing of that lawsuit.
It is additionally alleged that on about July 21, 2015, the Respondent unlawfully
implemented new work rules and discipline regarding cell phone use and lateness, and that on
that day, the Respondent discharged Henry Hernandez, Marvin Hernandez, Roberto Reyes,
Javier Reyes and Augustin Sabillon because they filed the FLSA lawsuit.
Finally, it is alleged that on about December 9, Respondent, by its attorney Saul D.
Zabell, while in a Board hearing room (a) threatened employees with legal action in retaliation
for participating in a Board hearing and because of their Union activity and (b) threatened to
report employees to Government authorities in order to intimidate witnesses and to discourage
them from participating in Board processes.
On October 20, 2015, the Regional Director issued a Report on Objections and
Challenges, consolidating for hearing the alleged unfair labor practice cases with objections to
the election filed by the Employer. At an election conducted on March 24, 2015, of the 20
eligible voters, 9 votes were cast for the Union and 5 votes were cast against the Union. Five
ballots were challenged. The ballots cast by Jose Wilfredo Argueta, Jose Martin Torres and
Jose Michael Torres, the alleged discriminatees in the unfair labor practice case, were
challenged by the Employer. The ballots cast by Amjad Malik and Manjit Singh were challenged
by the Union.
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The Respondent’s answer, as amended at the hearing, denied the material allegations
of the complaint, and a hearing was held before me in Brooklyn, New York on December 9, 11,
21-23, 2015, and January 20, 22, 26-27, 2016.2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the following:
Findings of Fact
I. Jurisdiction and Labor Organization Status
The Respondent admitted that from January 1, 2013 to the present, it has been a
domestic corporation having an office and place of business at 999 South Oyster Bay Road,
Bethpage, New York, and with a former place of business at 60 Gordon Drive, Syosset, New
York. It further admits that it has been engaged in the non-retail sale of beauty and appliance
and housewares products. The Res[pendent admits that during the past year, it purchased and
received at its combined Bethpage and Syosset, New York facility, goods valued in excess of
$50,000 directly from points outside New York State. The Respondent admits, and I find that it
has been an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of
the Act.3
The Respondent also admits and I find that the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. The Respondent’s Hierarchy
Chandeep (Danny) Bindra is the owner of the Respondent. His brother, Tony Bindra, is
its general manager. Herbert Miller is the warehouse manager and an admitted statutory
supervisor. Miller is in charge of the daily operations of the warehouse. The complaint alleges
and the Respondent denies that Amjad Malik is a statutory supervisor or agent.
The Respondent purchases beauty products and electronics and appliances which it
stores in its warehouse. Retail stores purchase those products from the Respondent which then
ships them to retailers and to on-line purchasers.
The Respondent’s approximately 20 warehouse employees pick the orders requested by
its customers by locating them on the warehouse shelves and bringing them to the shipping
department where they are checked by Miller and then prepared for delivery and sent out. The
employees operate fork lift trucks to store and to pick the items.

2 On February 1, 2016, I granted the General Counsel’s motion to quash subpoenas served
by the Respondent on certain employees. The Respondent sought to examine them on certain
amendments to the complaint made by the General Counsel. My Order granting the motion to
quash the subpoenas was received in evidence as G.C. Exhibit 26.
3 The Respondent argued at the hearing that Deep Distributors of Greater NY and The
Imperial Sales, Inc., are separate entities. This claim has no merit. The Respondent amended
its answer to admit that Deep Distributors of Greater NY and The Imperial Sales having its
facility in Bethpage is a statutory employer.
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A. The Alleged Supervisory and Agency Status of Amjad Malik
Miller is in charge of the electronic and appliances section of the warehouse. Malik is in
charge of the beauty and personal items products. Six or seven employees worked in each
department.
Employee JoseTorres stated that when he began work in 2011 or 2012, Tony Bindra told
him that Malik was his supervisor. Jose Torres and Argueta testified similarly that Malik told
them what job they would be performing, and during their employment, gave them daily job
assignments. If they were late to work or wanted a day off they called Malik. On those
occasions, Malik approved the requests.
Jose Torres testified that about two or three years before the hearing, he saw Malik
speak to employee Ramon Muncho but did not know what they said because he was too far
away. Immediately thereafter, Muncho told Torres that he was fired. Muncho left the premises
and did not return. Similarly, Argueta testified that, about three or four years ago, he saw Malik
argue with Jose Ramone Argueta who then left the premises. Argueta asked Ramone what
happened and Ramone said that Malik had fired him. The Respondent had no written
disciplinary records of any employees and, accordingly, these alleged discharges could not be
confirmed with documentary evidence. Employee Javier Reyes stated that he considered Malik
as a supervisor because he followed and observed the workers, gave them orders, and worked
at the computer in his office.
Employee Marvin Hernandez and Roberto Reyes stated that when Miller was not at the
premises Malik was in charge, and, according to Reyes, at those times Malik directed the
workers as to their job tasks. Miller testified that when he is not present he does not know who
assigns the work.
Argueta testified that in about September, 2014, he was filling an order when Malik told
him to do another job. Argueta testified that he did not hear Malik and, apparently, ignored him.
Malik warned him that that he would not get any more chances if he made any more mistakes.
The Respondent had no responsive documents to General Counsel’s subpoena
regarding the supervisory status of Malik. Malik did not testify.
Tony Bindra testified that Malik uses a computer to print the order pick sheets. He is the
only employee who has that task because he is the only worker who knows how to use the
computer, and read English. Similarly, because of his fluency in English, Malik is the only
employee who receives merchandise from delivery trucks. According to Bindra, apart from
these duties, Malik has is a warehouse worker with the same responsibilities as the other
warehouse employees.
Bindra gave contradictory testimony. He first testified that Malik signed orders to
purchase products but then, following an objection by attorney Zabell, testified that he did not.
Tony Bindra denied that Malik possessed any supervisory responsibilities. He stated that he has
no authority to hire, discharge, or recommended discharge. Bindra conceded that he shares an
office with him but later stated that he has no office within the warehouse.
Malik occupies a position of trust. Miller testified that Malik is his “main helper.” He is the
only employee who has a key to a room, called the blade room, where expensive merchandise
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is kept. Bindra trusts him with those costly goods, stating that he did not want others to possess
a key because items may be missing.
III. The Union’s Organizational Campaign
Employee Henry Hernandez and his co-workers became interested in joining a union,
and Hernandez contacted Union agent Wester Fabres. Beginning in early January, 2015,
Hernandez and his fellow workers met each week with Fabres, and attended meetings with the
Union.
In early January, 2015 Fabres parked his vehicle across the street from the
Respondent’s shop in direct view of the Respondent’s business. The vehicle bore a large flag
with the legend “Local 660” prominently displayed on the car.
Employees Javier Reyes, Roberto Reyes, Argueta and Sabillon spoke occasionally with
Fabres at his car for a few minutes. Javier Reyes stated that in late February, after speaking
with Fabres and entering the building, he heard Miller ask Roberto Reyes “what happened
outside.”
Marvin Hernandez stated that as he and other employees entered the warehouse
through the office, the door was open and he saw Tony Bindra and Miller standing at the
window looking outside during the time that Fabres' car was located across the street from the
facility.
Manager Miller testified that he saw a car parked across the street from the facility and
noticed a banner hanging on the vehicle. He stated that he was not concerned about the car
because he did not know if the car was there with respect to the Respondent or the business
next door to it.
On February 10, 2015, the Union filed a petition seeking to represent the Respondent’s
warehouse employees. Thereafter, on February 26, the Respondent and the Union signed a
stipulated election agreement setting March 24 as the date for the election.
A. Malik’s Alleged Surveillance
Jose Michel Torres and Argueta testified that on February 17, as he and Argueta were
working, Malik approached and said that they “were part of a union” or “with the Union.” The
two workers did not reply, and Malik left the area.
Argueta testified on cross examination that he was not given the impression that his
union activities were under surveillance. I discount this testimony. The “impression of
surveillance” is a legal term. Argueta testified credibly as to the facts which occurred.
Employee Roberto Reyes stated that, following his meetings with Fabres, Miller asked
him if he “knew something about the Union.” Reyes said that he knew nothing. Miller replied “I
think that the one that is hanging out with the Union is Alex [Argueta].”4

4 Reyes’ testimony that this conversation occurred in December is an obvious error
inasmuch as the Union’s campaign did not begin until January. Further, Reyes rehabilitated his
Continued
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B. The Discharges of Argueta, Jose Michel Torres and Jose Martin Torres
Manager Miller stated that in late January or early February, Tony Bindra told him that
there were too many employees because the winter was harsh and “limited how much we could
do.” Bindra asked him to recommend who to “terminate.” They decided that Jose Martin Torres
would be discharged because he was a temporary employee who replaced Juan Flores who
was caring for his injured son. They also agreed to “terminate” Argueta because of his “safety
problems” and to “terminate” Jose Michel Torres because he was the least productive worker.
Tony Bindra stated that he saw Jose Michel Torres asleep at work on at least three
occasions, the last time being 15 to 20 days before his discharge. However, he did not wake
him up because he did not speak to the workers as that was Miller’s job. However, Bindra
complained to Miller about Torres’ sleeping on the job. No written warnings were given to Torres
who denied that he received any discipline, and denied sleeping on the job.
On March 6, one week after the Respondent signed the election agreement, Miller told
Argueta, Michel Torres and Martin Torres that there was “not a lot of work,” that work was slow,
and they were being sent home but would be called back to work. However, they were not
recalled.
Argueta testified that work was not light because at that time he unloaded four to five
trucks and the Respondent was presenting at a trade show where customers typically place
many orders for products. Sabillon testified that he did not know anyone who was laid off
because work was slow. In fact, when the three employees were fired, business and work were
not slow because he noticed that there was much work, citing the fact that trailers of products
were received and were delivered. Jose Michel Torres also denied that work was slow at that
time. He noticed that when he left work that orders were being received. Further, Henry
Hernandez who continued to work after the three employees were laid off, observed that the
Respondent hired one or two new workers following the layoff and after the move to Bethpage.
One was a nephew of Roberto Flores.
Miller’s testimony that the three employees were laid off before the Respondent learned
that the Union had filed the election petition is clearly wrong. They were discharged on March 6,
2015. The petition was filed on February 10, 2015 and Tony Bindra admitted receiving it on
about that date. Miller’s further testimony that perhaps they were laid off before he began seeing
the Union’s car parked across the street from the facility is equally erroneous. The Union’s car
was at the Respondent’s facility beginning in January, and in his speech to the workers on
March 10, Miller told them that the only thing the Union can do is “stand outside.” It is
reasonable to find that Miller was aware of the Union’s presence outside the facility at least four
days earlier especially since the Union’s car had been periodically parked across the street from
the facility periodically for two months.
_________________________
testimony by stating that the remark by Miller was made after the Union appeared on the scene.
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C. Reasons for the Selection of Argueta, Jose Martin Torres and Jose Michel Torres
1. Argueta
Bindra stated that Argueta crashed the forklift into a FedEx truck in the old facility
in Syosset, breaking its light. According to Bindra he “always was a dangerous guy.”
Argueta testified that he and other employees often climbed the warehouse shelves in
order to retrieve picked orders. They were seen doing so by Tony Bindra, and did not receive
any discipline for that activity. In fact, manager Miller testified that Argueta was “kind of
reckless,” on two occasions climbing the shelves instead of using a ladder. Miller warned him
orally but not in writing. Tony Bindra stated that he often saw Argueta “trying to do gymnastics
on the ladder.”
Nevertheless, Argueta was not suspended or discharged and received no written
warnings in the four years he worked for the Respondent.
2. The Torres Brothers
Miller stated that Jose Michel Torres was extremely lazy - the least productive worker
who tried to do as little work as possible. He was often absent from work. Nevertheless, he did
not issue any written warnings to Michel and did not discipline him in the approximately four
years he worked at the Respondent. Further, Miller accepted his recommendation to hire his
brother Martin because he needed a worker at that time.
Miller testified that when Michel asked him for a job for his brother, he told Michel that
there were no openings. Later, when Flores was absent to care for his son, he looked for a
temporary replacement until Flores returned. However, he did not testify that he told Michel or
his brother that he would be retained only until Flores returned. In fact, the Respondent’s
records reflect that Flores left work on December 12, 2014 to care for his son and returned on
February 17, 2015.
Flores performed many tasks. He pulled orders and worked as a handyman, changing
light bulbs and fixing the factory doors. In contrast, Jose Martin Torres was employed solely as
an order picker.
Miller testified that he told Jose Martin Torres when he was hired that he was being hired
as a “temporary employee.” Miller said that he told Torres that Juan Flores was away from work
caring for his child and that when he returned “we’ll see how business was, and we would take it
from there.”
Miller’s statement concerning Torres’ continued work was thus equivocal. He did not
definitely say, according to his own testimony, that Martin would be released when Flores
returned. Miller held out the possibility that if business was good he would be retained.
Miller’s testimony is flawed. The Respondent’s records establish that Martin Torres was
employed by the Respondent on February 17, 2015 when Flores returned to work, and that
Martin was not discharged until three weeks later, on March 6.
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3. The Alleged Lack of Work Defense
The Respondent asserts that the three men were laid off for lack of work. Tony Bindra
stated that the weather that season was harsh, and sales were down from the previous year. He
also testified that following Christmas work is slow.
First, it should be noted that the three men were discharged on March 6, more than two
months after Christmas. Their discharge was two weeks after the election petition was filed and
one week after the election agreement was signed.
I must note Tony Bindra’s contradictory testimony. He first definitively testified on
examination by General Counsel that the three men were “terminated… and were not laid off.”
On examination by attorney Zabell, the following day, he stated that they were “laid off.”
The Respondent produced a list of employees all of whom were marked as being “laid
off” in the period 2010 to 2015. However, Tony Bindra could not testify definitively as to who
was terminated and who was laid off. He stated that when the document was prepared it was
“just easier to drag this thing [the term “laid off”] from an Excel program and put it in there.”
Finally, when asked about the accuracy of the term “laid off” when applied to all the employees
on the list, he said “I don’t know if it’s accurate or not. I’m just saying I don’t remember this.”
Nevertheless, he identified two employees who were laid off in February, 2015 for lack of work:
Chris Chiarappa, a buyer and Michael O’Hara, a salesperson. It must be noted that no
warehouse workers were laid off or discharged at that time other than the three dischargees,
Argueta, and the Torres brothers.
Tony Bindra stated that in response to the subpoena’s demand for documents which
would show the reasons for its determination that there was insufficient work to justify the
employment of Argueta, Jose Martin Torres and Jose Michel Torres, the Respondent provided
just two documents, identified as G.C. 15 and 16. Bindra stated that the Respondent’s purchase
of goods were $17,780,000 in 2015, and $25,302,520 in 2014. He guessed that one reason was
the very cold weather in 2015 and with too many warehouses in Syosset the amount of snow
made it impossible to travel between its three warehouses in Syosset. In answer to a leading
question from Zabell, Bindra replied that the Respondent could not make deliveries to facilities
because of the snow.
Bindra stated that the numbers in G.C. 15 and 16 were based on data that was input in
the computer which was derived from purchase orders and slips and other sources. He
conceded not having produced purchase orders or purchase documents, saying that there are
“thousands of documents and he did not know where they were, adding that if he printed them
there would be a “million pieces of paper.”
The General Counsel stated that she asked for original books and records - back-up
documents and not just the summaries set forth in G.C. 15 and 16. Zabell replied that if back-up
documents exist in the form of data in a computer he was under no obligation to compile a
report that satisfied the General Counsel. General Counsel noted that the subpoena also
demanded electronically maintained documents. Zabell stated that the records no longer exist,
but that the “raw data …exists in an accounting program; “the data from purchase orders exist in
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a database…. Information does exist in the form of random data in a database that supports the
financial information provided…. That data is not decipherable absent the created report. A
summary of report existed and it was provided. Counsel now seeks to have Respondent create
reports for purposes of this litigation without providing any legal basis to support imposition of
such a duty. The creation of documents that do not exist from information that absent such a
report is indecipherable exceeds the obligations imposed by the subpoena.”
During the hearing, the General Counsel filed a Motion to Impose Sanctions under
Bannon Mills, Inc., 146 NLRB 611, 633-634 (1964).5
I granted the General Counsel’s motion and the requested sanctions. I noted that
Federal Rules of Evidence 1006 states that the contents of voluminous writings which cannot
conveniently be examined in court may be presented in the form of a summary, but that the
originals shall be made available for examination. I ruled that it was the Respondent’s obligation
to produce the documents. I noted that Zabell stated that the data was available, and if reports
had to be created to produce the data they should have been created.
The sanctions which I granted precluded the Respondent from presenting any
documentary or testimonial evidence on the subject matter relating to its defense that the three
employees were laid off due to a slowdown in business, and that the Respondent was similarly
precluded from producing such evidence relating to the financial status of the Respondent’s
business. I also granted the General Counsel’s requested sanction that I draw an adverse
inference that the Respondent’s financial records, had they been produced, would not support
its claim that a downturn in business necessitated the layoff of the three employees.
D. Miller’s Meeting with Employees
Henry Hernandez testified that in March, following the visits of Fabres across the street
from the shop, he was speaking to his co-workers when Miller approached and said “let’s talk
face to face about the Union. Don’t be like a girl” or “if you want to talk about the Union, come
in front. Don’t act like a girl.”
Miller testified that he did not hear the employees speaking with each other concerning
the Union and did not assume that their conversation related to the Union. However, his pre-
trial affidavit stated that he held a meeting, discussed below, with employees because he saw
about four employees sitting in the corner hiding behind pallets, talking about “things.” He did
not know what they were speaking about but told them if they wanted to speak they should
“bring it out in the open and we can talk about it.”
The next day, on March 10, four days after the three employees were discharged and
two weeks before the election, Miller called a meeting of all the employees, in which he said
that he would speak about the Union. 6 Employee Sabillon recorded the meeting which was

5 The Motion, the Respondent’s Opposition and certain other documents were received in
evidence as G.C. Exhibit 25.
6 Hernandez testified that the meeting took place in the morning at 9:00 or 10:00 a.m., but
Continued
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later transcribed and received in evidence. Miller, who is fluent in Spanish, told the employees,
as relevant to the complaint allegations, as follows.
You are going to vote for union. This is what will happen. If [it]
passes. If you vote and you want. And the union gets in. What is
going to happen is. You will have to strike because we are not
going to accept that. So, those who vote Yes. I am telling now that
you will lose your jobs because you are going to go out there,
stand outside with the union. Those who don’t vote are going to be
here, working and, and we will be bringing new people. So, people
who don’t, who vote, and go out there, I am telling you now, if you
want you can go now, because you will not have a job. We will
not bring the other. The others are going to. You know what. The
only thing the union can do is to stand outside for. I don’t know
how to say it in Spanish. But we will bring new people because I
know that not all of you will vote. I have 100 percent that not all
are going to vote. So, those who do vote, I am telling you as of
now, if you want. You are not coming back in here because you
will lose your job. Because we will fight this…. I feel betrayed
because I always treated everyone right. Because prior to my
getting here you did not take coffee break or take anything. When
I got here I changed everything…. I give you a lot. How do you
say that? Ah. Freedom. The phones I don’t say anything. You
come wearing shorts, wearing tennis, I don’t say anything. Okay. If
you want change, careful what you ask for. Okay. Because a lot
will change. But I am telling you right now, those who vote for the
union, you will lose your job. Because we will fight it until the end.
And all the union can do, like I said, is to stand outside. ….You left
for months. Even Alex when his sister died left for months. And we
always took him back…. I don’t understand what happened with
this union thing, but now I see Alex and Victor out there with them.
But I don’t know what is going on. You know more than I do.
Because I know you were hanging with Michel and they told you. I
was not there but I am 100 percent that he….
But if you’re going to start work for us or trouble for us, I don’t
want you here. You. I have treated you right the whole time. If you
want me to treat you poorly, you shall see. Okay. But I am telling
you one, one thing, those who. The union is never getting in
because we will fight. You shall see if you can go some two, three
weeks without pay. We will bring other people and it will hurt them
for one week, two weeks, but they will learn. Just like you learned,
like you learned everything. The new people will come and learn
the job…. If you are not happy, leave. But stop, don’t bring
problems for me because I am not going to be happy and if I am
not happy you will not be happy…..
_________________________
his affidavit stated that it occurred after lunch, at about 11:00 a.m. This minor inconsistency is
immaterial. There is no dispute that the meeting occurred, as supported by the recording of it.
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[At this point an unidentified employee told Miller that he [Miller],
as a manager must speak for the workers. Miller replied]
Exactly. Right. I am always doing that. That is why I can get
everything I have gotten for you. So you can take the break. There
was no coffee break here before…. If you are not happy, leave,
leave….When you were leaving you asked me, when you called
me to come back I brought you back. You wanted to bring your
brother and your two brothers were brought in. When you need
something you go to Tony and helps you…. I gave your brother
work because of you. So, everyone it’s like a family. …. This
started from nothing. I don’t know where this started. That is the
problem. We were fine here. Someone is putting things in your
head but if you want it, if you don’t believe me, do what you got to
do and do what you gotta do. You’ll see what happens.
It should be noted that the transcript of the recorded meeting contradicts Miller’s trial
testimony that he did not tell the workers that (a) a vote for the Union will cause a strike (b) the
Respondent would not accept the Union (c) those who voted for the Union will lose their jobs or
will have to stand outside while those who voted against it will be working (d) those who vote
for the union could leave now because they would not have a job (e) the Respondent will bring
in new workers for those who vote for the union and (f) those who vote for the Union will not
be returning.
Rather, Miller testified flatly that the only question he recalled asking is if the workers
knew how much they would have to pay in union dues.
During the meeting, Miller asked, whether in “your country” employees were paid for
their work. One worker said they were paid for their work. Miller replied that they were paid
because they were in that country. He added that “you have all the rights here. I know what the
union is telling you. But, no they don’t have good social. What are they going to do for you in the
union? They cannot do.” An employee answered that his wife “has no papers” and she was paid
for the holiday.
Henry Hernandez testified that Miller said at the meeting that the Union could no nothing
for the workers because they did not have a “good social security.” Employee Roberto Reyes
stated that at a meeting, Miller told the workers that if they did not have “papers, social security,”
the Union would do nothing for them.
Following the playing of the recording of the meeting, the Respondent amended its
answer to admit that on about March 9, Miller (a) threatened employees with unspecified
reprisals if they selected the Union as their collective-bargaining representative (b) told
employees that it would be futile to select the Union as their collective-bargaining representative
and (c) threatened employees with discharge if they selected the Union as their collective-
bargaining representative.
I reaffirm my ruling that the Respondent’s later claim that the tape was inaccurate has no
merit. Zabell was invited to produce any evidence to support that claim. He did not do so. 7

7 Zabell first claimed that the recordings were not full and complete. He was given a copy of
Continued
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E. The FLSA Lawsuit and the Events following the Election
The election was held on March 24. Henry Hernandez and other employees stated that
following the election they continued to meet with Union agent Fabrres. Their conversations
included their concern that they had not been paid for the overtime hours they worked. Fabres
said that he would obtain an attorney to speak with them about that issue, and later brought
them to meet an attorney who filed the lawsuit.
A federal lawsuit was filed on about July 6, 2015. Tony Bindra admitted receiving the
lawsuit on about July 8.The plaintiffs were listed as Jose Reyes, Jairo Bonilla, Augustin Sabillon,
Javier Reyes, Selvin Vasquez, Marvin Hernandez, Henry Hernandez, Jose Olan Amador,
Armando Lazo, Valerio Baquedano, Jose Michel Torres, Jose Argueta, and Noel Efrain Castro.
The complaint stated the residence of each plaintiff and alleged that each employee worked on
weekends and was not paid at the overtime rate for such work pursuant to the FLSA and the
New York Labor Law.
Tony Bindra admitted that, upon receiving the lawsuit, he was “surprised and
disappointed” and for that reason wanted to meet with the workers. He was surprised because
most of the information contained therein was incorrect, including the employees’ addresses
and their claim that they worked on the weekends. He wanted to make certain that the suit was
their own product. Bindra denied discriminating against employees because they filed the
lawsuit.
Employee Roberto Reyes testified that on July 15 he was called into Miller’s office where
Miller and Tony Bindra spoke to him alone. Bindra showed him the court papers and asked if he
knew anything about the attorney who filed the FLSA suit. Reyes denied any knowledge of the
matter. Bindra challenged him, saying that his name was the first one listed. Reyes repeated
that he knew nothing. Bindra told him to return to work and said that he would meet one-by-one
with the workers.
Shortly thereafter, a meeting was held at which Tony Bindra spoke to the workers. His
words in English were translated into Spanish by Miller. Sabillon recorded the meeting.
_________________________
the recordings and transcripts thereof, which were also received in evidence. The Respondent
had already amended its answer following Zabell’s statement that “based upon the testimony
that just came out, it appears that I’m going to have to amend my answer somewhat, to amend
the pleading to comport to the testimony….It will involve me reviewing my notes, reviewing the
tape but I do believe it will streamline the process today.” After a one hour break, Zabell
amended the Respondent’s answer to admit the allegations set forth above.
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Bindra began the meeting by telling the workers that he was served with the lawsuit and
read all the employees’ names listed, asking them where they lived and comparing their
responses with the information in the lawsuit. He said that “all these guys’ names are here. They
are all suing me.” He noted that the suit alleges that he has not paid them for work performed
on weekends. Bindra told the men that they never worked on weekends. He told them that “now
I have to defend myself,” adding “so now the question is this. We are fighting or we are not
fighting? I didn’t pay you or did I not pay you? That’s the question.”
Bindra asked the employees if they were still intent on pursuing the lawsuit. At hearing,
Bindra explained that the men agreed that their statements in the suit were false, that they did
not work on the weekends and that they no longer wished to pursue the suit. However, the
transcript of the meeting does not support a finding that the employees admitted that their
allegations in the suit were untrue.
F. The Implementation of New Work Rules
and Discipline Imposed
One week after Bindra’s meeting, on July 21, 2015, the Respondent implemented an
employee Code of Conduct. This was the first time that the Respondent implemented written
work rules of any type. It provided as follows:
Employee Code of Conduct
Time and Attendance Policy
Employee lateness interferes with the company’s business
operations. All employees are required to report to work on time.
The scheduled start time for employees is 8:00 am. Any employee
who signs in later than 8:05 will be subject to discipline.
Consistent with this policy, employees who report to work late will
receive a disciplinary warning. If an employee persists in being
late, and they accumulate 3 unexcused incidents of lateness
during a twelve month rolling time period, they will be subject to
termination. There are no exceptions to this rule.
Warehouse Personnel
The company adheres to all laws and regulations regarding
worker and workplace safety. Consistent with this practice, no
employee working in the company warehouse will be permitted to
utilize their personal cell and/or smart phone, or any other non-
company issued electronic device. This includes the operation of
such devices with headphones and/or other hands-free
components. Any violation of this policy will result in the
immediate imposition of discipline, up to and including termination.
Cell phone bins will be provided as a convenience for employees
to store their cell phones though employees are requested to
leave their cell phones at home.
Employees who utilize their cell phone during work hours will be
disciplined up to and including termination.
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The form had a place for the employee to sign that he acknowledged and agreed with
the policies. Employees testified that they made and received cell phone calls during working
hours, they used their headphones while working, and that the Respondent’s supervisors saw
them doing so. None of them was disciplined for such conduct. Indeed, Tony Bindra testified
that the warehouse workers “always” wore headsets. He stated that he “always told them not to
use the headphones but they never listen.”
Tony Bindra testified that he implemented the cell phone policy because of the
dangerous nature of the warehouse environment: forklift trucks moving back and forth creating
noise while employees wore headphones limiting their ability to hear the trucks. His concern in
implementing the time and attendance policy was that the Respondent was losing money at that
time and he wanted employees to come to work on time. It must be noted that subpoenaed time
records of all the employees were not produced.
It is undisputed that prior to the issuance of these rules the Respondent had not issued
any written workplace rules and procedures.
Bindra stated that he began work on the new policy at about the time the Respondent
moved to its new Bethpage facility in mid-June, 2015 when the first draft of the policy was
created. He stated that he was served with the FLSA suit one month later on July 13. His intent
in instituting the new rules was that he wanted the work to be performed more efficiently and
safely in the new location. Further, forklift trucks were used more often in Bethpage than in
Syosset because it was a bigger location with more room to maneuver the machines. In
Syosset, dollies were used in the smaller warehouse aisles. Nevertheless, notwithstanding the
use of forklifts in Syosset, no written rules were implemented there concerning the use of
cellphones or headphones.
Respondent’s witness Aldo Hernandez, a paralegal at attorney Zabell’s law firm, testified
and produced documentary evidence that the new cellphone policy and the new time and
attendance policy was last edited on were last edited in Zabell’s office on June 18, and July 10,
2015, respectively.
On July 21, a payday, Mena, a payroll employee, told the employees that they had to
sign the Employee Code of Conduct which was written in English and Spanish.
Five employees, Henry Hernandez, Marvin Hernandez, Roberto Reyes, Javier Reyes,
and Augustin Sabillon refused to sign it. Mena called Miller over and he said that the employees
must sign it. They refused. Tony Bindra told them that that was their last day of work. They then
were given their last pay check and they left the premises.
Thus, the Respondent terminated five long term employees solely because they refused
to sign the new attendance and cell phone policy. It must be observed that the five dischargees
had been employed for years by the Respondent without their being disciplined for any reason.
Sabillon began work in October, 2010, Roberto Reyes started work in about April, 2011, Marvin
Hernandez became employed in about 2011, and Henry Hernandez and Javier Reyes began
work in about March, 2014.
Tony Bindra testified that all of the Respondent’s employees signed the new policy
except the five dischargees. Roberto Reyes and Sabillon also stated that those employees who
signed the work rules retained their jobs. However, in response to the General Counsel’s
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subpoena which demanded all the signed policies, only nine were produced notwithstanding
that, according to the July, 2015 payroll, at least 26 warehouse workers were employed at that
time. There was no evidence that other employees who may have not signed the policy were
discharged at that time. Thus, although Bindra and two employees testified that others who
signed the forms retained their jobs, there was no documentary evidence, the best evidence, to
support that claim.
The complaint alleges that the Respondent implemented the “new work rules and
discipline regarding cell phone use and lateness and discharged the five employees because
they filed the FLSA lawsuit in early July. Tony Bindra admitted receiving the lawsuit on July 13.
Miller testified that the Respondent always had a rule that cell phone use was prohibited,
but it was enforced, for safety reasons, only when the facility moved from Bethpage to Syosset
in late May, 2015. Miler stated that from late May through July 21, when the new policy was
introduced, a period of about seven weeks, the employees worked “with these pieces of
equipment running around in the warehouse … when they were wearing their headphones, and
[I] said nothing.” Miller stated that when he saw an employee using a cell phone he would “yell”
– a form of warning that they should not be using their phone.
Miller testified that in March, 2015, if an employee was late there was no written rule
regarding any consequence for his lateness. The Respondent instituted the attendance policy
because many employees were absent from work frequently. It decided to “tighten” the policy,
which, according to Miller, was always in effect but not enforced. He conceded that no one was
discharged for being late.
Miller testified further that prior to the move to Bethpage in late May, he told the workers
that, once the facility moves, no one would be permitted to use their cell phones since the new
facility would be bigger and have more machines. He explained that the rule was not
implemented until July because, at first, all the workers were “on board” with the new rule, but
then “just got lax and began falling back in the old pattern again.”
Tony Bindra stated that the employees were told that if they did not sign the new policy
they would be fired, but if they signed they could retain their jobs. In contrast, the employees
stated that they were not told that they would be discharged if they did not sign the policy.
Bindra also stated that he told all the workers to put their cell phones in a cubby which
he provided and not use their headphones. They told him that they would not sign the policy
because they wanted to continue to use their cell phones and headphones. They were
discharged for their refusal to sign the policy.
As set forth above, Miller told the employees on March 10, four months before the
implementation of the new rules, that he felt betrayed “because I always treated everyone
right….I give you a lot … freedom. The phones I don’t say anything. If you want change,
careful what you ask for. Okay. Because a lot will change….If you are not happy, leave. But
stop, don’t bring problems for me because I am not going to be happy and if I am not happy
you will not be happy…. Someone is putting things in your head but if you want it, if you don’t
believe me, do what you got to do… You’ll see what happens.”
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The employees testified that they understood that they were supposed to report to work
on time and certain employees stated that they knew that they could be disciplined or
discharged if they were late often. The Respondent argues that these were work rules that were
in place, were understood by the workers and, accordingly, the written implementation of these
rules was just a continuation of rules the workers understood and were nothing new.
G. The Alleged Threats Made in the Hearing Room on December 9
Union president Gilberto Mendoza stated that as he stood at the doorway to the hearing
room he saw Zabell enter the hearing room and say “immigration is here” and then walked
inside the room. At that time, the employees were seated in the back row of the room near the
door which was open. Mendoza added that Zabell was not speaking to anyone when he made
that comment. A few minutes later he then heard Zabell point to the workers and say “they are
not going to get a penny from my client. This is a waste of time. They are a bunch of
immigrants…if they get up to the stand and give a statement they will be committing perjury so
I’m going to take it to the grand jury so they can be deported.” He also said that he would call
the Immigration Service.8 Mendoza said that the witnesses were Spanish speakers but that
some understood English.
General Counsel Powell told Zabell to cease making such accusations.
The employees testified as to what they heard Zabell say. Their knowledge of English is
admittedly limited. However, they credibly testified as to what they heard and that they
understood the words Zabell uttered.
Argueta testified that he does not fully understand English but that he understands a little
English. While testifying in cross-examination through an interpreter he understandably stated
that he did not understand Zabell’s words as they “exit [his] mouth.”
Argueta first testified that he was at the elevator with employee Michel Torres when they
observed Zabell arriving for the hearing. He heard Zabell speaking to his clients concerning
“immigration,” and remarking that he was going to “report us to Immigration.” Argueta then
testified that later, when he was in the hearing room with his co-workers, he heard Zabell say
that he would report them to Immigration and that he was not going to pay the workers “not
even a penny.” He heard Powell tell Zabell three times to “stop.”
It must be noted that Argueta made two errors in his testimony. He testified that he
heard Zabell’s comments in hearing room number 2 during which time the administrative law
judge was present. In fact, the alleged comments were made in a different hearing room where
I was not present when Zabell allegedly made the comments testified to. These errors do not

8 Mendoza’s affidavit stated that the administrative law judge was present when Zabell
made these comments. I stated on the record that I was not present during this incident.
Mendoza admitted that he was confused by another incident in which Zabell was yelling
regarding Mendoza’s presence at which I was present.
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undermine his testimony, the most important aspect of which was the comments made by
Zabell. Those comments were corroborated by other employee witnesses and I credit them.
Javier Reyes testified that Zabell pointed to the workers. Although Reyes gave his
testimony through a Spanish interpreter, he stated, in English, that “he report with immigration,”
and the workers would not get a penny. He stated that he is able to read and understand 35% of
what is written and spoken in English.
Roberto Reyes stated that he did not understand what Zabell said but understood that
Powell told him three times to stop. He testified that no one translated what Zabell said, but he
believed, at that time, based on Zabell’s pointing to him that he “was calling me a criminal.”
Henry Hernandez, despite that he testified through a Spanish interpreter, testified in
English as to what he heard. He stated, in English, that “report to immigration and like penny or
something.” He credibly and honestly stated that he does not understand much but he
understands a little English. He testified that on December 9, Zabell pointed to all the
employees sitting in the rear of the hearing room, and screamed at them, saying that he would
report them to “immigration” and that the Respondent was not going to pay a penny. General
Counsel Powell told him several times to stop. Prior to that time, Zabell was speaking to Powell.
Fabres testified that on December 9, he and the employees were sitting on a bench in
the rear of hearing room number 3. Before the hearing began, he saw Zabell speaking to
General Counsel Cabrera in the hallway outside the hearing room. The door to the hearing
room was open and is nearby the bench they sat on. Fabres testified that he heard Zabell raise
his voice, yelling, commenting that “they are all illegal undocumented.” He said that he was
going to call the Immigration Service and have them deported. Cabrera asked Zabell if he
wanted to make those comments on the record. The employees looked at Fabres and asked
what was happening. Fabres told them to be calm, telling them that Zabell made a comment
about the Immigration Service.
Fabres testified that later, as he sat in the rear of courtroom 3 with the employees, he
observed General Counsel Powell approach Zabell who was seated at counsel’s table in the
front of the room. Fabres could not hear their conversation since they spoke quietly, but then
Zabell raised his voice, shouting that if the employees testified they would be committing
perjury, and he would report them to the Immigration Service. Zabell also mentioned a Supreme
Court case and pointed at the workers, saying that they would “not receive a penny.” Fabres
heard Powell telling Zabell in a loud voice to “stop, stop, stop.”9
Danny Bindra testified that as he and Zabell exited the elevator at the hearing-room floor
and walking down the hallway toward the hearing room he asked Zabell whether the

9 Fabres’ pre-trial affidavit stated that those conversations occurred on December 16. At
hearing Fabres testified that that date was inaccurate due to a mistake. The mistake is
immaterial and does not undermine his testimony which is supported by employee witnesses,
that the conversations occurred on December 9.
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immigration status of the warehouse employees had an effect on this case. Zabell replied that if
they were “illegal” they can be deported but it is very unlikely that that would occur because the
“government doesn’t do it.” Bindra denied hearing Zabell say that “immigration is here.”
Bindra also testified that, prior to the opening of the hearing, he overheard General
Counsel Powell and Zabell speak about the case. Zabell, speaking in a conversational voice,
but not yelling or speaking loudly, mentioned the name of a case to Powell, adding that pursuant
to that decision if the employees were undocumented they “can’t get a penny out of it.” He did
not observe that Powell was upset at Zabell’s mention of their allegedly illegal status. Bindra
conceded that some of the employees were at the benches in the rear of the hearing room.
Bindra noted that at that time, Zabell said that if the witnesses give false testimony under
the penalty of perjury, such perjured testimony could affect their legal status if they apply for
citizenship. Zabell said that they would be giving false testimony because he had a sworn
statement from them. Bindra denied hearing Zabell say that he would have the employees
arrested or that he would go to a grand jury and report them, and denied mentioning
immigration.
Analysis and Discussion
Credibility Findings
I credit the testimony of the General Counsel’s employee witnesses. Their testimony
about conversations with the Respondent’s representatives were mutually corroborative. They
testified in a forthright, believable manner. Although their primary language was Spanish and
they testified through an interpreter, they did understand, to some degree, spoken English.
Indeed, they testified in English concerning certain statements they heard in English.
I discount their testimony concerning legal terms asked by Zabell such as whether the
Respondent told them that it would be futile to seek union representation. Such improper
questions, particularly since the Respondent had already admitted such an allegation, was
beyond their limited comprehension of those terms. Further, minor errors in their testimony or in
their pre-trial affidavits or recollection in which of two hearing rooms Zabell threatened them do
not impair their testimony in any way.
I cannot find that the Respondent’s witnesses gave truthful testimony in important areas
of their recitations. Thus, Miller denied material parts of his March 10 meeting with the workers
when the recording of that meeting clearly showed that he made those statements. That
recording, and the Respondent’s implicit acknowledgement that Miller was untruthful in denying
the statements he made, led the Respondent to change its answer to admit that his threats and
statements, preserved in the recording, were made.
Further, Miller first stated that he could not hear what occurred during the election
confrontation but then, upon recall by Zabell, his memory improved to the extent that he heard
the precise words uttered.
Tony Bindra’s testimony was extremely evasive and not believable. He first stated that
he did not own Deep Distributors but then admitted that he owned that corporation. He first
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stated that he did not work for Deep Distributors but later stated that he did. Incredibly, Tony
Bindra could not admit that his brother Danny owned Deep Distributors. When asked whether
he had any independent knowledge concerning whether Danny owns Deep Distributors, he
incredulously answered “I don’t know what you mean knowledge, you know. How would I get
the knowledge? I don’t know.”
When asked whether the Respondent has contracts, Tony Bindra, the owner, general
manager and “overseer of everything in the company” incredibly testified “what is a contract. I
don’t know what you mean by a contract… I don’t understand what contract means. Contract for
me is buying a house.” Nevertheless, he admitted signing contracts for the purchase of forklift
machines, and with UPS for the shipping and delivery of its products, and further conceded that
he and Danny are responsible for signing all the Respondent’s contracts.
He first testified that Malik signed purchase orders but then said that he did not. He first
testified that the five employees were discharged but later stated, in questioning by Zabell
following a day’s break, that they were laid off and not discharged.
Danny Bindra testified that although he was present in the hearing room during Zabell’s
threats to employees he did not hear General Counsel Powell’s entreaties to Zabell to cease his
comments. Employees gave credited testimony that they were present in the hearing room at
the same time and heard Powell warn Zabell to stop.
Malik’s Supervisory Status and the Impression of Surveillance
The complaint alleges that employees’ were given the impression that their union
activities were under surveillance by the Respondent’s supervisor Malik.
The complaint alleges that Malik is the Respondent’s supervisor and agent. Section
2(11) of the Act defines a statutory supervisor has any individual having the authority, as
relevant here, to discharge, or discipline employees, or responsibly to direct them.
The exercise of any of the above responsibilities is sufficient to vest any person with the
status of a statutory supervisor. As set forth above, Malik is Miller’s “main helper.” Jose Torres
credibly testified that when he began work Tony Bindra told him that Malik was his supervisor,
and that he and Argueta testified that Malik gave them daily assignments. He also approved
their requests for leave. There was also testimony that when warehouse manager Miller was
absent, Malik was in charge of the facility.
Although Miller testified that no employee reports to Malik, the evidence is clear that the
Respondent’s large facility and large number of products are divided into two areas: beauty
supplies and housewares and appliances. There was credible evidence that Miller and Malik
are each in charge of the approximately six employees in those separate areas.
Inasmuch as there is much work to perform in each area, it is entirely reasonable that
Miller and Malik each exercise the power to assign employees to work in his own area. Thus,
employees credibly testified that Malik assigns them work to do, picking orders and receiving
items in the beauty supplies area. It appears that Miller exercises his own duties in the
housewares and appliance area. Accordingly, I find that Malik has the authority, which he has
exercised, of responsibly directing employees in their work. Marquette
Transportation/Bluegrass Marine, 346 NLRB 543, 552 (2006).
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In addition, two employees, Jose Torres and Argueta, credibly testified that they were
told by two other employees that they had just been discharged by Malik. The two dischargees
did not return to work thereafter. Further, Argueta stated that he received an oral warning from
Malik who warned him that he would not receive any more chances if he made another
mistake.
Moreover, Malik occupies a position of trust. He is the only employee who has access to
the blade room where the most expensive merchandise is stored. He also prints the work
orders.
Inasmuch as Malik did not testify no evidence was received from the person at issue.
Nevertheless, it is the burden of the party claiming that the person is a statutory supervisor, the
General Counsel, to prove that he possesses such status.
I find that General Counsels have met their burden. The evidence is clear that Malik is a
statutory supervisor. If it is ultimately decided that Malik is not a statutory supervisor, I find that
he is an agent of the Respondent. Malik was placed in a position of trust having access to a
room containing expensive merchandise in which no other employee was permitted to enter.
Inasmuch as he worked with employees who he assigned work to, it is clear that they would
have reason to believe that he spoke and acted for management.
“The Board’s test for determining whether an employer has created an impression of
surveillance is whether the employee[s] would reasonably assume from the statement in
question that [their] union activities had been placed under surveillance.” Grouse Mountain
Lodge, 333 NLRB 1322, 1322 (2001). The Board further stated that “employees should be free
to participate in union organizing campaigns without the fear that members of management are
“peering over their shoulders, taking note of who is involved in union activities, and in what
particular ways.” 333 NLRB at 1323.
I credit the testimony of Jose Michel Torres and Argueta who stated that on February 17,
Malik told them that they were “part of a union” or “with the Union.” Torres and Argueta had not
made their union support known to the Respondent. Their activities consisted of meeting with
Union agents. Malik’s comments made them reasonably assume that their union activities were
kept under surveillance and therefore violated Section 8(a)(1) of the Act.
The Discharges of Argueta, Jose Martin Torres and Jose Michel Torres
The complaint alleges that on March 6, 2015, the Respondent discharged Jose Wilfredo
Argueta, Jose Martin Torres, and Jose Michel Torres because they joined and assisted the
Union and engaged in concerted activities. The Respondent argues that they were laid off for
lack of work, and were selected because of their misconduct.
The General Counsel’s Prima Facie Case
Pursuant to the Board's decision in Wright Line, 251 NLRB 1083 (1980) in cases alleging
a violation of Section 8(a)(3) and (1), where motivation is at issue, the General Counsel bears
the initial burden of showing that the Respondent's decision to take adverse action against an
employee was motivated, at least in part, by antiunion considerations. The General Counsel
may meet this burden by showing that (a) the employee engaged in union or other protected
activity (b) the employer knew of such activity, and (c) the employer harbored animosity
towards the union or other protected activity. Camaco Lorain Mfg. Plant, 356 NLRB No. 143,
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slip op. at 3-4 (2011); Regal Recycling, Inc., 329 NLRB 355, 356 (1999). Animus may be
inferred from the record as a whole, including timing and disparate treatment. Brink's, Inc., 360
NLRB No. 136, slip op. at 1 fn. 3 (2014. If the General Counsel establishes discriminatory
motive, the burden shifts to the employer to demonstrate that it would have taken the same
action absent the protected conduct. Camaco Lorrain, above.
Jose Michel Torres and Argueta gave credible testimony that they attended Union
meetings and that they greeted Union agent Fabres at his car in front of the facility. There
could be no doubt as to Fabres’ purpose since his car bore a large sign with the name of the
Union. In fact, Miller said that he did not know whether the car was there for the Respondent
or the business next door. Clearly, Miller possessed knowledge, or at least a suspicion, that
the Union was present in behalf of the Respondent’s employees.
I also find that the Respondent possessed knowledge of the Union activities of the three
men. As set forth above, I have found that Malik told Jose Michel Torres and Argueta that they
were “part of a union” or “with the Union.” Malik did not testify and therefore their testimony is
unrebutted.
I credit the testimony of Roberto Reyes who stated that Miller asked him if he “knew
something about the union.” Reyes denied knowing anything about the Union. Miller replied “I
think that the one that is hanging out with the Union is Alex [Argueta].” Miller did not deny this
remark attributed to him, and therefore it stands unrebutted.
There was no direct evidence that the Respondent knew that Jose Martin Torres
engaged in union activities or that the Respondent was aware of them. However, the General
Counsel argues that he was discharged because he was the brother of Jose Michel Torres
who had recommended him for hire.
The Board has held that the discharge of a person in order to retaliate against his
relative who was a union activist is unlawful. Thorgren Tool & Molding, 312 NLRB 628, 631
(1993); Carrizo Mfg. Co., 214 NLRB 171, 181 (1974). Here, I find that the General Counsels
have met their burden of proving that the union activities of Jose Michel Torres was a motivating
factor in the Respondent’s decision to discharge his brother Jose Martin Torres. T.M.I., 306
NRLB 499, 503 (1992).
Thus, I find that, as in T.M.I., the timing of the discharges of the three men, coming only
four days before Miller’s strongly anti-union message to the remaining workers, including
admitted threats of discharge, and only two weeks after Argueta and Jose Michel Torres were
identified by Malik as being “part of the Union,” supports a finding, which I make, that the three
men were discharged because of their union activity.
I further find that the Respondent harbored animosity toward the Union and the union
activities of the dischargees. Miller’s strongly anti-union comments to all the employees only
four days after their discharges forcefully conveyed the message that union supporters would
lose their jobs. It also confirmed to the workers that he had been “betrayed” by their interest in
the Union.
Miller specifically referred to Argueta as being “out there with them” and mentioned that
“because I know that you were hanging with Michel.”
In addition, the Respondent’s creation of the impression of surveillance, found above,
which occurred before the three employees were discharged, establishes that it had animus
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toward their union activities. DPI New England, 354 NLRB 849, 868 (2009); Diversified
Chemicals Corp., 231 NLRB 982, 993 (1977).
Further, I cannot find, as set forth below, that the Respondent has met its burden of
proving that it possessed a reasonable basis for discharging the three men for their misconduct
or that it has established its economic defense of lack of work. T.M.I., 306 NLRB at 504-505.
I accordingly find that the General Counsel has proven that the union activities of
Argueta and Jose Michel Torres were motivating factors in their discharge. I also find that Jose
Martin Torres was discharged because he was the relative of Jose Michel Torres in retaliation
for the union activities of Jose Michel Torres. Wright Line, Inc., above.
The burden now shifts to the Respondent to prove that it would have discharged the
three men even in the absence of their union activity. Wright Line, above.
The Respondent’s Defense
Lack of Work
The Respondent argues that the three men were discharged for lack of work. It further
asserts that it chose them because of their poor work or misconduct. Neither defense has merit.
The General Counsel subpoenaed detailed financial records from the Respondent which
would prove or disprove its economic defense. As set forth above, only two limited documents
which summarized certain sales or purchase orders was produced.
As set forth above, Tony Bindra gave inconsistent and contradictory testimony as to
whether the three employees were laid off or discharged. The Respondent failed to provide
original books and records to support the figures in the two summaries it produced. Those
“back-up” documents were available in the form of data located in the Respondent’s computer
which Zabell maintained he was under no obligation to produce because it must be organized
into a report. However, the General Counsel’s subpoena called for the production of
electronically maintained documents. As noted above I granted the General Counsel’s motion
for sanctions under Bannon Mills, precluding the Respondent from producing evidence in
support of its lack of work defense.
Even aside from the documents, Bindra’s testimony that the Respondent’s work slows
after Christmas is undermined by the fact that the discharges occurred more than two months
after Christmas, and by the fact that employees testified that at the time of the discharges they
were busy at work.
The Selection of the Three Employees
Argueta and Jose Michel Torres
The Respondent selected Argueta for discharge because he was “dangerous” – climbing
shelves and not using a ladder. Michel Torres was chosen because he allegedly slept while at
work and was lazy.
Argueta admitted crashing his forklift truck into a FedEx truck breaking its light and also
conceded that he climbed the shelves, being seen by Tony Bindra and Miller. No discipline was
issued for these infractions but Argueta admitted being warned by Malik for ignoring an order.
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Incredibly, Tony Bindra testified that he saw Michel Torres asleep at work at least 3
times, the last being two to three weeks before he was discharged. However, Bindra did not
wake him up and no discipline was given to him for this gross misconduct.
I find that the Respondent condoned the alleged misconduct of Argueta and Jose Michel
Torres until an opportunity arose to discharge them for their union activities. The evidence is
clear that the Respondent would have continued them in its employ, as it had for the four years
each had been working for it, had it not been for the Union’s appearance on the scene.
Jose Martin Torres
Miller’s testimony that Jose Martin Torres was hired only as a replacement for Juan
Flores lacks merit. The Respondent’s records establish that Martin continued to work for three
weeks, from February 17, 2015 when Flores returned, until his discharge on March 6. This
completely undermines Miller’s testimony that Martin was scheduled to be discharged upon
Flores’ return to work.
Moreover, Miller did not testify that he told Michel or his brother that he would be
retained only until Flores returned. Significantly Miller’s testimony that he told Torres that Juan
Flores was away from work caring for his child and that when he returned “we’ll see how
business was, and we would take it from there” held out the possibility that if business was good
he would be retained. This was not an unequivocal declaration to Martin that he would be
replaced upon Flores’ return to work.
Further, the evidence also establishes that Flores worked as a handyman in addition to
picking orders. Accordingly, Martin Torres may have replaced Flores regarding his order picking
work but did not substitute for his repair work. Accordingly, they did different types of work and it
appears that Martin Torres could have been retained to perform the type of work he did even
upon Flores’ return to work.
The reason given for Martin’s discharge, that he was hired only as a replacement for
Flores until his return to work was false. The evidence establishes that Martin continued to be
employed for three weeks after Flores’ return. He was discharged only when the opportunity
arose to discharge him for the union activities of his brother.
Conclusion
I accordingly find and conclude that the Respondent has not proven that it would have
discharged Jose Wilfredo Argueta, Jose Martin Torres or Jose Michael Torres even in the
absence of their union activities. Wright Line, Inc., above.
Employees were Threatened with Unspecified Reprisals and Discharge;
Futility of Selecting the Union
The complaint alleges that the Respondent, by Miller, threatened employees with
unspecified reprisals if they selected the Union as their representative; told employees that it
would be futile to select the Union as their collective bargaining represented, and threatened
employees with discharge if they selected the Union as their representative.
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Miller denied making these statements. As set forth above, following the playing of the
recorded meeting at which he spoke on March 10, set forth above, Miller admitted that it was
his voice making these statements. The Respondent then amended its answer to admit the
complaint allegations that on March 10, the Respondent, by Miller threatened employees with
unspecified reprisals, told employees that it would be futile to select the Union, and threatened
employees with discharge if they selected the Union as their collective bargaining
representative.
I accordingly find that these admitted threats violated Section 8(a)(1) of the Act.
Interrogation of Employees and Threats of Unspecified Reprisals Concerning
Employees’ Involvement with the FLSA Suit
On July 8, 2015, Tony Bindra received a federal lawsuit filed by the Respondent’s
employees including Henry Hernandez, Marvin Hernandez, Roberto Reyes, Javier Reyes and
Augustin Sabillon. The suit alleged that the Respondent violated the FLSA by not paying, inter
alia, overtime wages and other payments required by law.
The complaint alleges that in July, 2015, by Tony Bindra, interrogated employees about
their involvement in a FLSA lawsuit and threatened them with unspecified reprisals because of
their involvement in the filing of a FLSA lawsuit.
The Board has long held that the filing of a lawsuit by a group of employees is protected
activity. See D. R. Horton, 357 NLRB No. 184, slip op. at 2 fn. 4 (2012), and cases cited
therein; 200 E. 81st Rest. Corp., 362 NLRB No. 152 (2015)
The Interrogation of Reyes
As set forth above, on July 15, Miller and Tony Bindra called Reyes into an office where
they spoke to him alone. Bindra showed him the FLSA lawsuit and asked him if he knew
anything about the attorney who filed the FLSA suit. Bindra pressed him, saying that his name is
the first one listed. Reyes repeated that he knew nothing. He was told to return to work.
Following that private meeting, Bindra spoke at a meeting with employees regarding the
suit, as set forth above. In that conversation, Bindra challenged them, asking them if the
information concerning their residences listed in the suit was correct. He accused the men of
suing him. He contradicted the suit’s allegations that the men worked on weekends, asking
detailed questions about when they worked. He then asked the workers if they still intended to
pursue the suit, ending the conversation with the remark that “now the question is this. We are
fighting or we are not fighting? I didn’t pay you or did I not pay you? That’s the question.”
The Respondent defends the General Counsel’s allegations by asserting that the
employees agreed that the suit was without merit and that they wanted to abandon it. The
recorded transcription contains no such statements.
In this respect I reject the Respondent’s argument that a letter dated January 3, 2o16
from the attorney who filed the lawsuit proves that the allegations made therein are false. The
letter requested Zabell’s consent to file an amended complaint, stating that the factual
allegations concerning the employees’ hours worked and lunch breaks kin the complaint were
not accurate. He sought to delete the allegations concerning the lunch breaks and to present a
more accurate representation of the hours worked by each employee. Thus, at most, the letter
represents that certain allegations contained in the lawsuit were inaccurate, not the entire
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lawsuit. Further, the letter states that the attorney simply wished to change the employees’
hours worked, not to delete that part of the lawsuit.
Accordingly, the Respondent’s argument that the FLSA lawsuit was filed in “bad faith”
and therefore permitted Zabell to question the employees as to their basis for filing the suit has
no merit. The fact that the Respondent unlawfully questioned the employees about their lawsuit
constitutes unlawful interrogation. Samsung Electronics, LLC, 363 NLRB No. 105, slip op. at 1
(2016).
The Respondent also correctly asserts that Bindra said that he had to “defend myself”
and that he would have to “fight.” I find nothing improper with Bindra’s remark that he had to
defend himself.” However his question whether he and the workers are fighting or not fighting
constitutes coercive interrogation. He sought an immediate answer from the workers, without
the aid of their attorney, as to whether the Respondent paid them properly or did not. And with
that answer he posed a further question of whether they would fight each other or not.
Thus, Bindra sought to coercively convince the workers that they had been paid and
therefore should not fight him in their lawsuit for proper compensation.
The remarks by Bindra constitute interrogation of the employees he addressed. The
Board has held that an interrogation is unlawful if, in light of the totality of the circumstances, it
reasonably tends to interfere with, restrain or coerce employees in the exercise of their Section
7 rights. Relevant factors include whether proper assurances were given concerning the
questioning, the background and timing of the interrogation, the nature of the information
sought, the identity of the questioner, and the place and method of the interrogation. The Board
has viewed the fact that the questioner is a high level supervisor as one factor supporting a
conclusion that the questioning was coercive. Brighton Retail, Inc., 354 NLRB 441, 448 (2009).
Samsung, above.
Here, Bindra, the manager of the Respondent and the brother of its owner, questioned
its employees immediately after receiving the lawsuit. He stated that he was surprised and
“disappointed” that the suit was filed. The fact that he was disappointed clearly establishes that
he blamed the employees for suing him and bore animus toward them for engaging in the
protected activity of filing the action. He further sought to encourage, if not coerce them, into
dropping the lawsuit, asking if they still intended to pursue it.
Thus, no assurances were given concerning the questioning, the interrogation took place
in an atmosphere of interference with the Union activities of the workers – the Respondent
admitted that it had, on March 10, threatened employees with reprisals and discharge if they
selected the Union, and told them that it would be futile to do so. Further, it had discharged
three employees for their union activities, and only one week later it unlawfully discharged five
more employees for their union activities.
It is clear that Bindra and Miller sought to obtain information about the lawsuit from
Reyes, asking him if he knew anything about the lawyer who filed the suit. Reyes denied such
knowledge and Bindra coercively continued the questioning by noting that Reyes’ name was the
first in the list of plaintiffs. The Respondent’s effort to obtain information about the lawsuit is
unquestionably interrogation. Samsung, above. In the meeting with the other employees Bindra
attempted to coercively persuade the workers to abandon their lawsuit, and tried to have them
discontinue their protected activity of joining together to seek to remedy their allegedly unlawful
working conditions. He threatened that he would “fight” them if they continued to engage in the
protected activity of pursuing their lawsuit.
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I accordingly find and conclude, as alleged, that the Respondent interrogated employees
about their involvement in the FLSA lawsuit and threatened them with unspecified reprisals
because of their involvement in the filing of that lawsuit.
The Implementation of New Work Rules and Discipline
The complaint alleges that the Respondent unlawfully implemented new work rules and
discipline regarding cell phone use and lateness.
As set forth above, on July 21, the Respondent implemented new work rules prohibiting
cell phone use during work hours and providing discipline for employee lateness.
It is undisputed that this was the first time that written work rules have been imposed on
employees. Employee testimony that they understood that they were required to report to work
on time or they would be subject to discipline misses the point. First, employees testified that
they called their manager to report their lateness and no discipline was issued. Secondly,
Argueta’s testimony that he was asked to wear a protective belt while using the forklift was not
a written rule.
The evidence strongly suggests, and I find, that the rules were implemented in response
to the employees’ union and protected, concerted activity. Thus, the rules were placed in force
on July 21, 2015, only two weeks after Bindra received the FLSA lawsuit and coercively
interrogated employees about its contents. Moreover, they were implemented in the context of
Miller’s strongly anti-union speech to employees, and the Respondent’s admitted threats to the
workers. Further, the Respondent discharged five of the plaintiffs named in that lawsuit for
refusing to sign the new policy.
Moreover, the rules were implemented within the context of the Respondent’s
commission of violations of the Act in Miller’s admitted threats that employees would be
discharged if they selected the Union, and that it would be futile to so designate the Union.
The Respondent’s Defense
The Respondent argues first, that it began work on the new policy before it received
notice that the FLSA suit had been brought. Its witness Aldo Hernandez testified that he edited
the policy in mid-June. That may be the case, but the allegation and the violation is that the
new policy was implemented on July 21. There is no allegation as to the policy’s promulgation.
The Respondent asserts that the new rules were implemented in anticipation of its move
to a new facility in Bethpage, a larger facility with more forklift machines in an effort to promote
safety. However, the evidence establishes that the forklift machines were also used in the
former, Syosset facility. It is clear that the new safety rules would apply equally to both
facilities. Nevertheless, the new rules were not implemented at the Syosset warehouse.
The Respondent argues that the new rules were an effort to improve safety.
Nevertheless, the move took place in late May and the new policy was not implemented for
another seven weeks. Miller’s testimony that he told the workers that new rules prohibiting cell
phones would be in effect when the faculty moved cannot be believed. He noted that during
those seven weeks employees worked with dangerous equipment wearing their headphones
and he “said nothing.”
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Miller’s further testimony that employees immediately after the move were “on board”
with the new policy but then “got lax” is similarly unbelievable. Clearly, no effort to enforce any
policy, oral or written, was made until the employees began their activities in behalf of the
Union and filed the FLSA lawsuit. It is clear that if safety was so important to the Respondent it
would have implemented its new work rules when it said it would – when it moved to Bethpage.
Further, there was substantial evidence that the conduct of employees in using cell
phones and wearing headphones during work hours was condoned at both locations. Tony
Bindra stated that the employees “always” wore headphones and that he always told them not
to do so but they did not heed his warning.
Miller precisely explained the Respondent’s true motive for implementing the new rules.
In his speech to the employees on March 10, he told them he felt betrayed “because I always
treated everyone right….I give you a lot … freedom. The phones I don’t say anything. If you
want change, careful what you ask for. Okay. Because a lot will change….If you are not happy,
leave. But stop, don’t bring problems for me because I am not going to be happy and if I am
not happy you will not be happy…. Someone is putting things in your head but if you want it, if
you don’t believe me, do what you got to do… You’ll see what happens.” Miller’s promise to
change was realized in the unlawful implementation of the new rules.
At the time of Miller’s meeting with the workers, the Respondent was located in its
former facility in Syosset. It is clear that Miller acknowledged that the employees’ cell phone
use was not appropriate but he said nothing about it, thereby condoning their use. He clearly
related a change in that policy to the advent of the Union. The evidence also establishes that
the new rules were put in place in reaction to the recent filing of the FLSA suit.
I accordingly find and conclude that the new work rules were implemented in retaliation
for the employees’ union activities and because they filed the FLSA lawsuit. CDR Mfg., 324
NLRB 786. 790 (1997). I further find that the Respondent has not met its burden of proving that
it would have implemented the new rules even in the absence of the employees’ union and
concerted activities. Wright Line, above.
The Discharges of Henry Hernandez, Marvin Hernandez Roberto Reyes, Javier Reyes
and Augustin Sabillon
I have found, above, that the implementation of the new work rules was unlawful. It is
well settled that discharge of employees because they violated an unlawful rule is itself
violative of the Act. Tuscaloosa Quality Foods, 318 NLRB 405, 411 (1995) and cases cited
therein.
In addition, under a Wright Line analysis, I find that the five employees who were
discharged were all engaged in union activities, and all were named plaintiffs in the FLSA
lawsuit which was well known to the Respondent at the time they were discharged. The
Respondent’s animus toward the employees for filing the lawsuit is established in the coercive
interrogation and threats made at the July 15 meeting and in the context of the Respondent’s
admitted unlawful threats made at Miller’s meeting. I therefore find that the General Counsel
has established a prima facie showing that their activities was a motivating factor in their
discharge.
The Respondent argues that it discharged the five workers because they refused to sign
the new work rule policy. It claims that all its employees signed the policy but, as set forth
above, it could produce only nine signed forms from the approximately 26 workers employed at
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the time. There was no evidence that employees who had not signed the form were also
discharged.
In addition, the employees testified that they understood that they were supposed to
report to work on time and certain employees stated that they knew that they could be
disciplined or discharged if they were late often. The Respondent argues that these were work
rules that were in place, were understood by the workers and, accordingly, the written
implementation of these rules was just a continuation of rules the workers understood and
therefore were nothing new. It must be emphasized that there were no written rules of any kind
in existence until the implementation of this work rule policy, and that the Respondent tolerated
for years the type of conduct prohibited by the new rules. .
The Responded also claims that these rules promoting safety in the workplace were,
themselves, proper rules. That may be true but, as found above, they were unlawfully
implemented for unlawful reasons to retaliate against workers.
Nor did the Respondent establish why it had to discharge long-term employees with no
record of discipline. It did not consider giving them a written warning or some lesser form of
discipline. The fact that it had tolerated the identical conduct suddenly prohibited pursuant to
the new rules undermines the Respondent’s argument that it was vital that the rules be
adhered to immediately.
I accordingly find and conclude that the Respondent has not met its burden of proving
that the five employees would have been discharged even in the absence of their activities in
behalf of the Union and in participating in the FLSA lawsuit against the Respondent. Wright
Line, above.
Threats of Legal Action in a Board Hearing Room
The complaint alleges that on about December 9, Respondent, by its attorney Saul D.
Zabell, while in a Board hearing room (a) threatened employees with legal action in retaliation
for engaging participating in a Board hearing and because of their Union activity and (b)
threatened to report employees to Government authorities in order to intimidate witnesses and
to discourage them from participating in Board processes.
As set forth above, the Union’s witnesses credibly testified, in a mutually corroborative
matter to essentially the same facts. Attorney Zabell told the employees that he would report
them to the immigration authorities and that they would “not get a penny.” He made these
statements while the employees were in the hearing room.
Danny Bindra conceded that he heard Zabell tell Powell that if the employees were
“illegal,” they could not receive a penny due to a case whose name he could not recall. Thus,
Bindra admitted that employees were in the room when Zabell made those comments –
essentially corroborating the General Counsel’s witnesses on that point. It must be noted that
Zabell did not testify to refute these allegations.
I thus reject the Respondent’s argument that Zabell was simply speaking to his client at
the elevator concerning the effect of the employees’ immigration status on this case. The
evidence is clear, as admitted by Bindra, that he heard a conversation concerning immigration
between Zabell and Powell in the hearing room.
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[T]threats to employees that election of the union might result in
their being reported to Immigration officials and, presumably,
possibly deported, may similarly elicit strong fears in the
employees. While the record contains no evidence that any of
respondent’s employees are illegal aliens, should any of them fall
within that category, then Allard’s threats would undoubtedly
evoke the most intense fear, not only of employment loss, but of
removal from their very homes a well. Like the fears of job loss
discussed above, fears of possible trouble with the Immigration
Service or even of deportation must remain indelibly etched in the
minds of any who would be affected by such actions on
Respondent’s part. Viracon, Inc., 256 NLRB 245, 247 (1981).
Here, although there was no effective threat of job loss since the employees had already
unlawfully been discharged, nevertheless there were threats by the Respondent through Zabell
that he would report them to the Immigration Service and that they would not receive a penny
through this proceeding.
I accordingly find and conclude that the Respondent, by Zabell threatened employees
with legal action in retaliation for engaging participating in a Board hearing and because of
their Union activity and threatened to report employees to Government authorities in order to
intimidate witnesses and to discourage them from participating in Board processes.
There is no question that employees have an unfettered right to participate in Board
proceedings free of threats and intimidating comments by a respondent. The threats were of
such a nature that they had a tendency to interfere with the employees’ uninhibited right to
freely appear at the Board hearing and give testimony.
Threats in a hearing room made to employees therein that an immigration investigation
would be requested have been found to be unlawful threats in violation of Section 8(a)(1) of the Act.
AM Property Holding Corp., 350 NLRB 998, 1042-1043 (2007) and cases cited therein.
The Election
The election was held on March 24, 2015. Nine valid ballots were cast for the
Union and five ballots were cast against the Union. Five ballots were challenged. The ballots
cast by Jose Wilfredo Argueta, Jose Martin Torres and Jose Michael Torres, the alleged
discriminatees in the unfair labor practice case, were challenged by the Employer. The ballots
cast by Amjad Malik and Manjit Singh were challenged by the Union. The Regional Director
directed that the hearing concerning all five challenged ballots be consolidated with the unfair
labor practice proceeding. The Employer filed Objections to the election which was also
consolidated with this proceeding.
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The Challenged Ballots
Inasmuch as I have found, above, that Jose Wilfredo Argueta, Jose Martin Torres and
Jose Michael Torres were unlawfully discharged, they remained statutory employees at the time
of the election. I therefore diredct that their ballots be opened and counted.
Inasmuch as I have found that Amjad Malik was a statutory supervisor and agent, I
therefore find that his ballot should not be opened and counted.
Manjit Singh did not testify. The burden is on the challenging party, the Union, to prove
that the voter who was challenged is ineligible to vote. Tony Bindra testified that Singh was a
warehouse employee and driver who performed the same work as Argueta, Jose Martin Torres
and Jose Michel Torres. There was no evidence presented to rebut that testimony. I therefore
find that Singh was a member of the unit and eligible to vote. I accordingly direct that the ballot
of Manjit Singh should be opened and counted.
The Objections
The Respondent filed the following objections to the election:
Prior to the election, and during the course of voting, the Union
pressured Imperial’s employees to vote in favor of the union. The
Union leveraged threats concerning employee’s immigration
status, along with promises regarding legalizing their immigration
situation, to secure favorable votes. Moreover, during the course
of the election, the Union, in an apparent effort to bully their way to
a desired election outcome, resorted to acts of physical violence
against Imperial’s agents.
The aforementioned acts have a corrosive effect on the sanctity of
a fair election. As such, the NLRB should decline to certify the
March 24, 2015 election and should commence an investigation
into the improper and unlawful conduct that transpired.
The Regional Director directed that a hearing be held on the allegations “that the Union
would call immigration authorities and have employees deported, the promise that a vote for the
Union meant employees could stay in the country lawfully, and the intertwined threat by
employees that various members would kill an employee if s/he voted against the union
because it would mean that they would be deported (which grew from the initial threat by the
Union).”
The Director also directed that a hearing be held on the “allegation that a Union
representative verbally and physically accosted the Employer’s representative in front of
employees at the beginning of the election.”
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The Director did not direct that a hearing be held on the allegation that a Union agent
engaged in unspecified threats, intimidation and electioneering immediately prior to and at the
election.
The Alleged Threats Regarding Employees’ Immigration Status
Tony Bindra stated that sometime prior to the election one employee told him that he
was told by the Union that if he did not vote for it his immigration status would be affected, and
he would be deported. Bindra did not identify the Union agent and did not know the alleged
victim’s name. Bindra also stated that the same employee told him that he was told that a vote
for the Union meant that he could remain in the United “States legally, and that he would be
given a green card.
Manager Miller testified that no employee told him that he was threatened by the Union
or that the Union had mentioned anything to the workers about their immigration status.
Union president Mendoza and Union agent Fabres denied speaking to the employees
regarding their immigration status. No threats or promises were made regarding their
immigration status, and no Union agents told the employees that they would be deported if they
did not vote for the Union.
Henry Hernandez denied having any conversations with Union agents or employees
concerning their immigration status in relation to their vote in the election. Nor did he recall
discussions in which an employee’s life was threatened concerning their vote. Jose Michel
Torres denied that anyone made any promises to him regarding his immigration status if he
voted for the Union.
Employee Marvin Hernandez stated that no Union agents made any statements to him
concerning his immigration status if he voted for the Union. Similarly, Sabillon testified that no
Union agent promised him anything regarding his immigration status at the time of the election.
Javier Reyes denied that any Union agent made any promises to him concerning his
immigration status regarding his vote at the election. No one threatened him with deportation for
exercising his rights to join a union.
Roberto Reyes stated that no Union agent told him that how he voted may affect his
ability to stay in the United States. Argueta denied being spoken to by anyone concerning his
immigration status and its effect on his vote.
Inasmuch as no evidence was presented in support of this Objection it is overruled.
The Alleged Acts of Verbal and Physical Violence Toward the Respondent’s Agents
As set forth above, the election agreement provided that the election would take place in
the warehouse area adjacent to Miller’s office by the large west facing loading door at the
Employer’s facility, and that stated that the Employer agreed to turn off all surveillance cameras
for the period of the election, which record the warehouse area adjacent to Herb Miller’s office in
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addition to all exits in and out of the area. The controls for the video surveillance system are
located in the “blade room” which is near the election polling location.
Tony Bindra testified that there was no agreement to shut the cameras during the
election, but nevertheless he was told by Zabell to turn them off and he did so.
An altercation occurred during the pre-election period before the voting began. During
that time, the Employer, Union and Board agent met in the location designated as the polling
area.
Danny Bindra testified that as he was standing in the polling area before the voting
occurred, he observed Union president Mendoza walking toward the warehouse. Bindra stood
in front of him putting his hands at chest level and told him that he could not enter the
warehouse. Mendoza advanced, aggressively pushing his chest into Bindra’s chest with
Mendoza’s hands on Bindra’s shoulders, pushing him back. Mendoza then placed his hand
under Bindra’s chin, and made a gun gesture with his hand, saying “I’ll put you down.” Bindra
repeated that he could not enter the warehouse.
Bindra further stated that Mendoza raised his voice, insisting that he was “going to go
inside.” Bindra told him that he could not do so. At that point, according to Bindra, Zabell
stepped between them, repeating that Mendoza could not enter the warehouse. Mendoza
raised his hand, used profanities and told Zabell “what do you think – you’re a big guy? I’ll put
you down too.” Zabell repeated that he could not enter the warehouse.
Danny Bindra recounted that Mendoza’s chest bumped Zabell’s, and then Mendoza
“butted” Zabell’s chest with his head. Bindra denied that Zabell put his hands on Mendoza.
Bindra estimated that each confrontation, that between him and Mendoza and between Zabell
and Mendoza last two to three minutes.
Danny Bindra recalled that twelve to fifteen employees who were 20 to 25 feet away and
were present to vote, saw the altercation. The incidents ended when the Board agent separated
Mendoza and Zabell, telling Mendoza to move back. Mendoza then walked to the area where
the employees were standing and spoke to them. Danny and Tony Bindra stated that they saw
Mendoza look at them and, once, put his finger across his throat, which Danny Bindra
interpreted as a threatening gesture.
Although Danny Bindra testified that he was in fear of his life, he did not call the police.
Instead, he gestured at the Board agents who replied that they had an election to conduct, but
later amended this testimony to state that the Board agent stepped between Zabell and
Mendoza. Bindra further stated that he asked Zabell if he should call the police and Zabell
replied that the Board agents were present. Bindra conceded that he did not file assault or
battery charges against Mendoza.
Tony Bindra testified that Mendoza “came to me” and said he wanted to “enter my
warehouse and go all the way in.” In further testimony, Tony Bindra stated that indeed,
Mendoza, without saying anything, began walking 20 feet inside the warehouse when Danny
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told him he could not do so. Bindra specifically stated that Mendoza said nothing about the
video system when he walked into the warehouse. He simply sought to walk into the warehouse
for no stated reason.
In this respect, Bindra’s testimony is refuted by manager Miller who testified that the
confrontation concerned “an issue about turning the cameras off and the union guy wanted to
walk around the warehouse … it was an issue of the camera before they voted.” He stated that
Mendoza “tried to follow Tony to shut the cameras off and Zabell asked him to stay where we
were” and not enter the warehouse.
Tony Bindra then saw Mendoza walk up to Danny who told him that he could not enter
the warehouse. Then Mendoza pushed Danny and made a gun sign with his hand, telling
Danny that he would take him down. Tony Bindra then saw Zabell get between the two men at
which point he observed Mendoza head-butting Zabell’s chest, and pushing and shoving Zabell,
saying that he would “take care of you, too. He saw Mendoza put his hands on Danny‘s
shoulders, attempting to push him back. He recalled that Mendoza was yelling, screaming and
cursing at the time. He first stated that the confrontation lasted a “few minutes” and then stated
that it consumed five to nine minutes.
Tony Bindra noted that 12 to 14 employees were present during this incident and stood
about 10 to 20 feet away. However, he also testified that “some of the [workers] were present.”
When asked how many, he stated that “this was a very heated situation. I didn’t know what was
going on so I didn’t pay attention to it if there were other people there.”
Tony Bindra then said that following the confrontation with Danny, Mendoza went “all the
way inside” the warehouse and was stopped by Danny, and then both were engaged in a
physical confrontation.
Miller stated that Mendoza came up to Zabell and when “neck and neck…actually
bumped him.” Miller added that Mendoza and Zabell were touching each other, with Mendoza
threatening him. Miller said all the employees were watching this scene while they were waiting
for the polls to open.
It must be noted that Miller stated that he was 15 to 20 feet away from the confrontation
and he could not hear what words were used – “the people were yelling, and you can’t make
out nothing.” He did not hear any “specific words. “Later, when he was recalled by the
Respondent, Miller’s memory improved. He stated that he heard Mendoza tell Danny Bindra
and Zabell that he would “take [them] down.”
Tony Bindra first testified that the altercation lasted a “few minutes” and then said it took
place between five and nine minutes. Danny Bindra testified, alternately that it lasted one to
three minutes, then two to three minutes, and then five to nine minutes. Miller stated that the
dispute continued for three to five minutes. There is no dispute that when the Board agent came
between the men the confrontation ended.
Union president Mendoza stated that when he arrived at the polling location an
employee told the Board agent there were many surveillance cameras at the warehouse and he
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pointed at some of them. Mendoza told the Board agent that the cameras should either be shut
off or the cameras covered. The Board agent mentioned this to Zabell.
Mendoza stated that he asked for proof that the cameras were shut. Zabell said that he
would have a manager or owner shut the system. Mendoza protested that either the Union or
the Board agent must also be certain that the cameras are shut.
At that point, according to Mendoza, Zabell began yelling, saying that he would not
permit the Union to “go and make sure the cameras were off.” Both he and Zabell raised their
voices at each other. Mendoza stated that after he asked to see the cameras, Zabell stepped in
front of him, yelling that he could not do so. Mendoza stated that Zabell came toward him and
they were inches apart but did not have physical contact.
Mendoza testified that the Union was not assured of a fair election if it was not able to
ensure that the cameras were shut. He did not take the owner’s word that the cameras were
rendered inoperable. Mendoza stated that after he was refused permission to check the
cameras they continued to argue, but he did not attempt to walk into the Respondent’s facility.
However he stated that after his request was denied he attempted to walk out of the
election area to observe the camera system. He stated that since he did not attempt to walk
through the facility the owners did not try to get in his way. He also denied saying “I got you” or
that he made a gun gesture with his empty hand.
Mendoza stated that he believed that he had a right to “walk around” the shop as he
had, in the past, been permitted to enter an employer’s premises prior to an election. Mendoza
stated that he did not attempt to walk inside the facility. Rather he walked only in the area where
the polling area was located. Mendoza denied speaking to or making a throat slashing gesture
at the Respondent’s agents.
According to Mendoza the Board agent told him to bring up the matter after the election
if he so chose.
Union agent Fabres testified that he did not witness the altercation between Mendoza
and Zabell but was told about it later by Mendoza. Fabres further stated that the employees
were inside the shop at work at the time of the confrontation
Argueta, the Union’s election observer, testified that he saw an argument between
Zabell and Mendoza. He stated that they got close to each other “like pushing and shoving” but
he saw no contact between them. The argument lasted four to five seconds. He denied seeing
Mendoza make hand gestures at that time. Argueta stated that none of the employees were
present during the argument as they were told to leave the area – to “hide themselves.”
Employees Roberto Reyes, Jose Michel Torres, Marvin Hernandez, Javier Reyes, and
Sabillon denied seeing any argument at the election. In addition, Jose Michel Torres, Marvin
Hernandez and Sabillon denied seeing any physical confrontation. As set forth above, Argueta
stated that he was the only employee present at the pre-election confrontation.
Henry Hernandez did not recall Zabell being at the election, but heard from other workers after
the election that Zabell and a Union agent “wanted to like fight.”
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The Respondent subpoenaed Board agent Stephanie LaTour to testify as to the events
at the election. The Board granted the General Counsel’s petition to revoke the subpoena
pursuant to Section 102.118(a)(1) of the Board’s Rules and Regulations on the ground that
other witnesses were available to testify about the election incident.
Analysis
Objection 1
“It is the Employer’s burden, as the objecting party, to prove that there has been
misconduct that warrants setting aside the election.” Consumers Energy Co., 337 NLRB 752,
752 (2002).
I conclude, based on the above, that no credible evidence has been presented as to the
first Objection, that the Union would call immigration authorities and have employees deported,
or promised that a vote for the Union meant employees could stay in the country lawfully, or a
threat by employees that various members would kill an employee if s/he voted against the
union because it would mean that they would be deported.
Here, Tony Bindra’s testimony that an unnamed employee told him that an unnamed
Union agent threatened him with deportation and said that he could remain the United States if
he voted for the Union is simply incredible. No supporting evidence has been presented and
each of the employees denied that any such comments had been made.
Objection 2
The second Objection alleges that the Union assaulted the Respondent’s agents and
attorney at the election.
The test for evaluating conduct of a party is an objective one – whether it has the
“tendency to interfere with the employees’ freedom of choice.” Taylor Wharton Division, 336
NLRB 157, 158 (2001). In determining whether a party’s misconduct has the tendency to
interfere with employees’ freedom of choice, the Board considers: (1) the number of incidents
(2) the severity of the incidents and whether they were likely to cause fear among the
employees in the bargaining unit (3) the number of employees in the bargaining unit subjected
to the misconduct (4) the proximity of the misconduct to the election (5) the degree to which the
misconduct persists in the minds of the bargaining unit employees (6) the extent of
dissemination of the misconduct among the bargaining unit employees (7) the effect, if any, of
misconduct by the opposing party to cancel out the effects of the original misconduct (8) the
closeness of the final vote and (9) the degree to which the misconduct can be attributed to the
party.
I note first that the stipulated election agreement provided that the Employer would turn
off its surveillance video cameras so that they would not be operating during the election.
Mendoza attempted to ensure that the cameras was turned off, and stated that he did
not want to take the Employer’s word that it had done so. The Employer attempted to diminish
this important aspect of Mendoza’s actions by its testimony of Tony Bindra that there was no
agreement that it would shut the cameras, and by Danny Bindra’s testimony that Mendoza said
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nothing about the video system and simply wanted to enter the warehouse for no stated reason.
It is significant that the Employer’s manager Miller stated, in contradiction, that the confrontation
arose concerning “an issue of the camera.”
Accordingly, the Bindra brothers sought to make it appear that Mendoza’s actions were
a brazen attempt to walk through the warehouse for no reason whereas Mendoza, apparently
relying on the election agreement’s stipulation that the cameras were to be shut, simply wanted
to confirm that fact, and made it known that that was his purpose.
Thus, it appears that Mendoza, by his own testimony, was not satisfied with the
Employer’s assertion that it had shut the cameras, and he attempted to exit the election area to
observe the video system, claiming, at hearing, that he had a “right” to “walk around” the shop.
Miller gave believable testimony that Mendoza attempted to follow Tony Bindra when he shut
the cameras off and that Zabell asked him to “stay where we were” and not enter the
warehouse.
Although I credit Mendoza’s testimony that he did not try to walk through the warehouse,
the evidence is clear that he did proceed at least to some point at or near the entrance of the
warehouse which resulted in the Employer’s attempt to stop him. Thus, the alleged misconduct
may be attributed to the Union, a party.
I further find that an argument and confrontation ensued between Danny Bindra, Zabell
and Mendoza. The argument included raised voices and profanities. As set forth above,
Employer representatives claimed that Mendoza, being the aggressor, made contact with
Danny and Zabell, attempting to push them back. In contrast, Mendoza stated that, although he
was “inches apart” from Zabell they made no contact.
I also find, as testified by Argueta, that there was “pushing and shoving.” However, he
denied that there was contact between the men.
The evidence is clear that there was contact between Mendoza, Zabell and Danny
Bindra. It is doubtful that angry words between men who were only “inches” away according to
Argueta would not result in contact between them especially since he testified that there was
“pushing and shoving.” However, I find that that the contact was nothing more than the men
pushing each other in the opposite direction. I do not credit the Employer’s agents that Mendoza
head butted Danny and Zabell in their chests. It is not likely that such an act would have gone
without the police being called by Zabell or the Employer or criminal charges being filed by
them.
In making findings as to what occurred, I similarly cannot credit the Bindras or Zabell’s
testimony that Mendoza made threatening statements or threatening gestures toward them.
Miller did not confirm that testimony and Mendoza and Argueta denied it. It is further noted that
Miller at first denied hearing anything that Mendoza said, but later, upon recall by Zabell heard
Mendoza’s alleged threatening statement.
Considering the factors the Board looks at in determining whether Mendoza’s conduct
had a tendency to interfere with the employees’ freedom of choice, only one incident took place
– the confrontation between Mendoza, the Bindra brothers and Zabell. The incident occurred in
the immediate vicinity of the election.
I cannot credit the Employer’s evidence that the argument took as long as they said it
did. It is unlikely that it lasted even a few minutes. The Board agent intervened and came
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between the disputants breaking it up and thereafter proceeded with the election. I accordingly
find that the confrontation was quite short in duration. In this respect, I credit Argueta’s
testimony that the dispute lasted a few seconds.
In considering whether Mendoza’s conduct was likely to cause fear among the
employees it must first be determined whether any of the employees were present at the
confrontation, and if not, whether that incident was disseminated among employees not present.
As set forth above, Danny Bindra and Miller testified that all the voting employees were
present at the confrontation. However, Tony Bindra first stated that some employees were
present. When asked how many, he said “this was a very heated situation. I didn’t know what
was going on so I didn’t pay attention to if there were other people there.” He later testified that
all the employees were present. However, all the employees other than Argueta, the Union’s
election observer, denied that they were present or saw any arguments or confrontations.
In view of my credibility findings, above, in which I discredited the Bindra others as to
material parts of their testimony, I cannot credit the Employer’s agents that all the employees
were present and observed the confrontation. Thus, I find that only Argueta was present. He
described the dispute as “pushing and shoving,” lasting only a few seconds.
Further, regarding the dissemination of the incident, Henry Hernandez stated that he
heard from other workers after the election that Zabell and a Union agent “wanted to like fight.”
Hernandez did not testify as to how many other employees spoke about this matter and he gave
no further details as to what he heard. In any event, the dissemination took place after the
election and thus could not have affected the employees before they voted.
There was no evidence as to whether the incident persisted in the minds of the unit
employees, particularly since I find that employees, other than Argueta, were not present at the
incident. There is no evidence that dissemination of the incident to the employees occurred
before the election.
As to the effect, if any, of misconduct by the Employer, I credit Mendoza’s testimony that
Zabell stood in his way, stopping him from proceeding further. Thus, it appears that Zabell
placed his body in front of Mendoza’s, with both equally contributing to the physical contact
which I find occurred. Accordingly, if Mendoza was originally at fault for attempting to proceed
toward the warehouse, Zabell was equally at fault for blocking his way, causing the physical
contact between them.
It is not possible to determine the closeness of the final vote since five ballots were
challenged and I direct, below, that four of them be opened. However, nine valid votes were
cast for the Union and five were cast against it. Nine votes against five is not a close vote.
I find that the incident which occurred did not reasonably tend to interfere with the
employees’ free and uncoerced choice in the election. The incident was not directed at the
employees, there is no credible evidence that any more than one employee, Argueta, the
Union’s election observer, witnessed the incident, and there is no evidence that the incident was
disseminated to the other employees or that it persisted in their minds.
In addition, I cannot find that, in observing the incident, Argueta was given the
impression that the Employer was “powerless against the force of the union.” Rather, as in Chrill
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Care, Inc., 340 NLRB 1016, 1016-1017 (2003), where the union’s agent disrupted an employer
meeting with employees and initially resisted the employer’s efforts to eject her. I find that the
Employer here, as was the employer in Chrill Care, “fully able to maintain control” by resisting
Mendoza’s attempt to proceed toward the warehouse. As was the case in Chrill Care, the union
agent left the area when the police were called. Here, Mendoza backed away when the Board
agent intervened.
The cases cited by the Employer, Service Employees District 1199 (Staten Island
University Hospital), 339 NLRB 1059, 1061 (2003) and Central Massachusetts Joint Board, 123
NLRB 590, 609 (1959) are inapposite. In Staten Island University Hospital, the union’s agent
engaged in a “series of open confrontations with managers” which consisted of “deliberate,
repeated and unprovoked verbal abuse, including profanity, racial and sexual slurs and threats
of physical harm.” The Board found that the union’s actions violated Section 8(b)(1)(A) of the
Act. It also found that the hospital’s employees, who were fully aware of the agent’s actions,
would reasonably tend to fear that they would be subject to the same abusive tactics if they
failed fully to support the union in its bargaining position and the impending strike. The Board
further found that the agent’s intent in engaging in this “prolonged … repeated harassment was
to “send this intimidating message to the hospital employee audience.”
In Central Massachusetts, the Board found that the union agent’s threatening with bodily
harm and kicking an employer official as he crossed the union’s picket line violated Section
8(b)(1)(A) of the Act. The Board held that the striking employees could have reasonably
regarded the assault “as a reliable warning of what might befall them if they abandoned the
strike” and restrained and coerced them in their exercise of their right to continue or discontinue
striking as they wished.
The question here is whether the employees would reasonably fear that they would be
subject to similar misconduct if they chose to fail to support the Union. I find that they would not
harbor such a fear. Rather, I find that, Argueta, the sole witness to the incident, would
reasonably believe that Mendoza was demonstrating his reasonable belief that the Union was
entitled to ensure that the surveillance cameras were shut as agreed in the election stipulation,
and that Mendoza was correct in asserting that he had a right to confirm that the cameras were
turned off. Argueta could therefore reasonably believe that the resulting confrontation took place
because of the Employer’s challenge to Mendoza’s attempt to verify that the cameras were
deactivated.
In sum, I view the election as reflecting the employees’ free choice and I overrule this
Objection.
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Conclusions and Recommendations
Based on the above discussion, the ballots of Jose Wilfredo Argueta, Jose Martin
Torres, Jose Michel Torres, and Manjit Singh should be opened and counted. The ballot of
Amjad Malik should not be opened and counted.
I shall remand the proceedings in Case No. 29-RC-146077 to the Regional Director and
and direct him to open and count the ballots of Jose Wilfredo Argueta, Jose Martin Torres, Jose
Michel Torres, and Manjit Singh, and issue a revised tally of ballots.
If the revised tally of ballots shows that a majority of the valid votes cast at the election
were cast for the Petitioner, I recommend that the Petitioner be certified. If the revised tally of
ballots shows that the Petitioner has lost the election, I recommend that the election be set
aside, and that all proceedings in Case No. 29-RC-146077 be vacated.
Conclusions of Law
1.The Respondent, Deep Distributors of Greater NY, Inc. d/b/a The Imperial Sales, is an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) and (3) of the Act by discharging Jose
Wilfredo Argueta, Jose Martin Torres, Jose Michael Torres, Henry Hernandez, Marvin
Hernandez, Roberto Reyes, Javier Reyes, and Augustin Sabillon.
3. The Respondent violated Section 8(a)(1) of the Act by giving its employees the
impression that their Union activities were under surveillance by the Respondent.
4. The Respondent violated Section 8(a)(1) of the Act by threatening its employees with
unspecified reprisals if they selected the Union as their collective bargaining representative.
5. The Respondent violated Section 8(a)(1) of the Act by telling its employees that it
would be futile to select the Union as their collective bargaining representative.
6. The Respondent violated Section 8(a)(1) of the Act by threatening its employees with
discharge if they selected the Union as their collective bargaining representative.
7. The Respondent violated Section 8(a)(1) of the Act by interrogating its employees
about their involvement in a Fair Labor Standards Act lawsuit.
8. The Respondent violated Section 8(a)(1) of the Act by threatening its employees with
unspecified reprisals because of their involvement in the filing of a Fair Labor Standards Act
lawsuit.
9. The Respondent violated Section 8(a)(1) of the Act by implementing new work rules
and discipline regarding cell phone use and lateness.
10. The Respondent violated Section 8(a)(1) of the Act, while in a Board hearing room, it
threatened employees with legal action in retaliation for participating in a Board hearing and
because of their Union activity.
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11. The Respondent violated Section 8(a)(1) of the Act, while in a Board hearing room,
it threatened to report employees to Government authorities in order to intimidate witnesses
and to discourage them from participating in Board processes.
12. The unfair labor practices set forth above are unfair labor practices affecting
commerce within the meaning Section 2(6) and (7) of the Act.
The 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.
Having found that the Respondent has unlawfully implemented new work rules on July
21, 2015 regarding cell phone use and lateness, I shall order that it rescind those new work
rules.
The Respondent having discriminatorily discharged and refused to reinstate Wilfredo
Argueta, Jose Martin Torres, Jose Michael Torres, Henry Hernandez, Marvin Hernandez,
Roberto Reyes, Javier Reyes, and Augustin Sabillon, it must offer them reinstatement to their
former positions or, if those positions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges they would have enjoyed,
absent the discrimination against them. Further, I shall recommend that the Respondent make
them whole for any loss of earnings and other benefits suffered as a result of the discrimination
against them.
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010),
enf. denied on other grounds sub. nom. Jackson Hospital Corp. v NLRB, 647 F.3d 1137 (D.C.
Cir. 2011). In accord with Tortillas Dan Chavas, 361 NLRB No.10 (2014), my recommended
Order also requires the Respondent to (1) submit the appropriate documentation to the Social
Security Administration so that when backpay is paid to the employees, it will be allocated to the
appropriate calendar quarters, and/or (2) reimburse them for any additional Federal and State
income taxes they may be assessed as a consequence of receiving a lump-sum backpay award
covering more than 1 calendar year.
The General Counsel requests an Order that Wilfredo Argueta, Jose Martin Torres, Jose
Michael Torres, Henry Hernandez, Marvin Hernandez, Roberto Reyes, Javier Reyes, and
Augustin Sabillon be reimbursed for their search for work and work-related expenses, without
regard to whether interim earnings are in excess of these expenses. Normally, such expenses
are considered an offset to interim earnings. However, the General Counsel seeks a change in
existing rules regarding such expenses.
This would require a change in Board law, which is solely within the province of the
Board and not an administrative law judge. Therefore, I shall not include this remedial proposal
in my recommended order. The Board has recently stated that it will not order such relief at this
time. Goodman Logistics, LLC, 363 NLRB No. 177, fn. 2 (2016).
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In accordance with the Board's decision in J. Piccini Flooring, 356 NLRB No. 9, slip op.
at 5-6 (2010), I shall recommend that the Respondent be required to distribute the attached
notice to members and employees electronically, if it is customary for the Respondent to
communicate with employees and members in that manner. Also in accordance with that
decision, the question as to whether a particular type of electronic notice is appropriate should
be resolved at the compliance stage. J. Piccini Flooring, above, slip op. at 3. See Teamsters
Local 25, 358 NLRB No. 15 (2012).
The General Counsel has requested certain enhanced remedies. In Federated Logistics
& Operations, 340 NLRB 255, 256 (2003), the Board, citing Fieldcrest Cannon, Inc., 318 NLRB
470, 473 (1995), stated that it “may order enhanced or extraordinary remedies when the
Respondent’s unfair labor practices are ‘so numerous, pervasive, and outrageous’ that such
remedies are necessary to ‘dissipate fully the coercive effects of the unfair labor practices
found.’” Especially since a small bargaining unit is involved, “the probable impact of [the] unfair
labor practice is increased.” Excel Case Ready, 334 NLRB 4, 5 (2001).
In addition, the Board has found that a broad order requiring a respondent from
engaging in misconduct “in any other manner,” instead of a narrow order to refrain from
misconduct “in any like or related manner” is necessary when a respondent has engaged in
“such egregious or widespread misconduct as to demonstrate a general disregard for the
employees’ fundamental statutory rights.” Hickmott Foods, 242 NLRB 1357 (1979).
In addition, in such cases, the Board has ordered a respondent to furnish periodic,
updated lists of employee names and addresses to the union, so that the union can help to
counteract the effects of these violations in its communications with employees, and to enable
the union to “present its message in an atmosphere relatively free of restraint and coercion.
“Federated Logistics, above, at 258; Excel Case Ready, above, at 5.
Further, the Board has required the public reading, by an official of the respondent, of a
notice to its employees, so that “they will fully perceive that the Respondent and its managers
are bound by the requirements of the Act.” Homer D. Bronson Co., 349 NLRB 512, 515 (2007).
The publication of the Notice to Employees has been found an appropriate remedy in
cases such as this one. Pacific Beach Hotel, 361 NLRB No. 65 (2014).
I find that all of the above enhanced remedies are necessary to dissipate the serious
unfair labor practices which the Respondent engaged in. As set forth above, shortly after the
Union began organizing the employees, the Respondent immediately embarked on a campaign
to identify the Union’s supporters. The Respondent learned that Jose Michel Torres and Alex
Argueta were union adherents and discharged them, along with Jose Michel Torres’ brother,
Jose Martin Torres. Later, after five other employees filed a FLSA lawsuit, the Respondent
discharged them for not signing its unlawfully implemented rules concerning lateness and cell
phone use.
The Respondent’s admitted violations of the Act by threatening employees with
unspecified reprisals, telling employees that it would be futile to select the Union, and
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threatening them with discharge if they voted for the Union, all constitute serious violations of
the Act.
Finally, and most egregiously, the Respondent attorney’s threat to employees in the
hearing room that he would report them to immigration authorities and that if they testified they
would be committing fraud constituted extraordinary intimidation of the employee witnesses. Not
only did it instill fear in them that they may be reported to governmental authorities, but it
conveyed the message that if they gave testimony they would be in legal jeopardy.
Accordingly, I find that the General Counsel has established good cause for the
imposition of the above enhanced remedies, and I shall order that the Respondent be required
to undertake them.
However, I will not order two additional special remedies requested by the General
Counsel. The General Counsel requests an Order that the Respondent be required to “schedule
training for all employees on their rights under the Act conducted by a Board agent during paid
work time; and an Order requiring the Respondent to schedule training for all supervisors and
managers on compliance with the Act conducted by a Board agent during paid work time. No
Board precedent has been cited for the imposition of such Orders, and no detail has been given
concerning the nature or length of the training
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10
ORDER
The Respondent, Deep Distributors d/b/a The Imperial Sales, Inc., Bethpage, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discharging employees because they engaged in union activities, concerted
activities, and because they filed a lawsuit pursuant to the Fair Labor Standards Act.
(b) Giving its employees the impression that their Union activities were under
surveillance.
(c) Threatening its employees with unspecified reprisals if they selected the Union as
their collective bargaining representative.

10 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.
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(d) Telling its employees that it would be futile to select the Union as their collective
bargaining representative.
(e) Threatening its employees with discharge if they selected the Union as their
collective bargaining representative.
(f) Interrogating its employees about their involvement in a Fair Labor Standards Act
lawsuit.
(g) Threatening its employees with unspecified reprisals because of their involvement in
the filing of a Fair Labor Standards Act lawsuit.
(h)Implementing new work rules and discipline regarding cell phone use and lateness.
(i) Threatening employees with legal action in retaliation for participating in a Board
hearing and because of their Union activity.
(j) Threatening to report employees to Government authorities in order to intimidate
witnesses and to discourage them from participating in Board processes.
(k) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
1. 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 Wilfredo Argueta, Jose
Martin Torres, Jose Michael Torres, Henry Hernandez, Marvin Hernandez, Roberto Reyes,
Javier Reyes, and Augustin Sabillon full reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(b) Make Jose Wilfredo Argueta, Jose Martin Torres, Jose Michael Torres, Henry
Hernandez, Marvin Hernandez, Roberto Reyes, Javier Reyes, and Augustin Sabillon whole for
any loss of earnings and other benefits suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharges, and within 3 days thereafter notify Jose Wilfredo Argueta, Jose Martin
Torres, Jose Michael Torres, Henry Hernandez, Marvin Hernandez, Roberto Reyes, Javier
Reyes, and Augustin Sabillon in writing that this has been done and that their discharges will not
be used against them in any way.
(d) Rescind the work rules entitled “Employee Code of Conduct” which was implemented on
July 21, 2015, and notify the employees that it has done so.
(e) Within 14 days after service by the Region, hold a meeting or meetings during working
time, scheduled to ensure the widest possible attendance, at which the attached Notice to
Employees” to the employees shall be read to employees by Danny Bindra, Tony Bindra, Herb
Miller or Amjad Malik in English and in Spanish during work time, or at the Respondent’s option,
by a Board agent in the presence of the Respondent’s officials, supervisors and agents named
above.
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(f) Within 14 days from the date of this Order, publish in three publications of general local
interest and circulation copies of the attached Notice to Employees, signed by the Respondents’
general manager Tony Bindra, or his successor, and to do so at its expense. Such Notice shall
be published twice weekly for a period of 8 weeks. The publications shall be determined by the
Regional Director for Region 29, and need not be limited to newspapers so long as they will
achieve broad coverage of the area.
(g) Upon the request of the Union, immediately furnish it with lists of the names, addresses,
and classifications of all the Respondent’s employees as of the latest available payroll date, and
furnish a corrected, current list to the Union at the end of each 6 months thereafter during a
period of 2 years following the entry of this Order.
(h) Within 14 days after service by the Region, post at its facility in Bethpage, New York,
copies of the attached notice marked “Appendix.” 11 Copies of the notice, in English and in
Spanish, on forms provided by the Regional Director for Region 29, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. 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 February 17, 2015.
(i) 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.
(j) 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 AS FOLLOWS:
1. The Objections to the election are hereby overruled.

11 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.”
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2. The proceedings in Case No. 29-RC-146077are hereby remanded to the Regional Director
for Region 29. He is directed to open and count the ballots of Jose Wilfredo Argueta, Jose
Martin Torres, Jose Michel Torres, and Manjit Singh, and issue a revised tally of ballots.
3. If the revised tally of ballots shows that a majority of the valid votes cast at the election were
cast for the Petitioner, I recommend that the Petitioner be certified. If the revised tally of ballots
shows that the Petitioner has lost the election, I recommend that the election be set aside, and
that all proceedings in Case No. 29-RC-146077 be vacated.
Dated, Washington, D.C. May 6, 2016
_________________________
Steven Davis
Administrative Law Judge
JD(NY)-13-16
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 discharge you because of your activity in behalf of United Workers of America,
Local 660, or your concerted activities or because you filed a lawsuit pursuant to the Fair Labor
Standards Act.
WE WILL NOT give you the impression that your Union activities were under surveillance.
WE WILL NOT threaten you with unspecified reprisals if you select United Workers of America,
Local 660 as your collective bargaining representative.
WE WILL NOT tell you that it would be futile to select the Union as your collective bargaining
representative.
WE WILL NOT threaten you with discharge if you select the Union as your collective bargaining
representative.
WE WILL NOT interrogate you about your involvement in a Fair Labor Standards Act lawsuit.
WE WILL NOT threaten you with unspecified reprisals because of your involvement in the filing
of a Fair Labor Standards Act lawsuit.
WE WILL NOT unlawfully implement new work rules and discipline regarding cell phone use
and lateness.
WE WILL NOT threaten you with legal action in retaliation for participating in a Board hearing
and because of your Union activity.
WE WILL NOT threaten to report you to Government authorities in order to intimidate you as a
witness and to discourage you from participating in Board processes.
WE WILL NOT in any other manner interfere with, restrain, or coercing 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 Wilfredo Argueta, Jose
Martin Torres, Jose Michael Torres, Henry Hernandez, Marvin Hernandez, Roberto Reyes,
JD(NY)-13-16
Javier Reyes, and Augustin Sabillon full reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make Jose Wilfredo Argueta, Jose Martin Torres, Jose Michael Torres, Henry
Hernandez, Marvin Hernandez, Roberto Reyes, Javier Reyes, and Augustin Sabillon whole for
any loss of earnings and other benefits suffered as a result of the discrimination against them.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges, and within 3 days thereafter notify Jose Wilfredo Argueta,
Jose Martin Torres, Jose Michael Torres, Henry Hernandez, Marvin Hernandez, Roberto Reyes,
Javier Reyes, and Augustin Sabillon in writing that this has been done and that their discharges
will not be used against them in any way.
WE WILL immediately rescind the unlawfully implemented new work rules entitled “Employee
Code of Conduct” which were implemented on July 21, 2015 regarding cell phone use and
lateness, and notify the employees that we have done so.
WE WILL within 14 days after service by the Region, hold a meeting or meetings during working
time, scheduled to ensure the widest possible attendance, at which the attached Notice to
Employees to the employees shall be read to employees by Danny Bindra, Tony Bindra, Herb
Miller or Amjad Malik in English and in Spanish during work time, or at the Respondent’s option,
by a Board agent in the presence of the Respondent’s officials, supervisors and agents named
above.
WE WILL within 14 days from the date of this Order, publish in three publications of general
local interest and circulation copies of the attached Notice to Employees, signed by the
Respondent’s general manager Tony Bindra, or his successor, and to do so at its expense.
Such Notice shall be published twice weekly for a period of 8 weeks. The publications shall be
determined by the Regional Director for Region 29, and need not be limited to newspapers so
long as they will achieve broad coverage of the area.
WE WILL upon the request of the union, immediately furnish it with lists of the names,
addresses, and classifications of all the Respondent’s employees as of the latest available
payroll date, and furnish a corrected, current list to the Union at the end of each 6 months
thereafter during a period of 2 years following the entry of this Order.
DEEEP DISTRIBUTORS d/b/a/
THE IMPERIAL SALES, 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.
JD(NY)-13-16
Two MetroTech Center (North), Jay Street and Myrtle Avenue, Suite 5100
Brooklyn, New York 11201-3838
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-147909 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (718) 330-2862.