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

National Labor Relations Board - Board Decisions

Jun 20, 2017

365 NLRB No. 95 (N.L.R.B. 2017)

365 NLRB No. 95
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Deep Distributors of Greater NY d/b/a The Imperial
Sales, Inc. and United Workers of America, Lo-
cal 660 and Henry Hernandez. Cases 29–CA–
147909, 29–CA–157108, and 29–RC–146077
June 20, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On May 6, 2016, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and cross-exceptions
with a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as discussed below and to adopt
the recommended Order as modified and set forth in full
below.2
This consolidated unfair labor practice and representa-
tion case involves allegations that the Respondent violat-
ed Section 8(a)(1) and (3) during an organizing cam-
paign. The Respondent also filed objections alleging that
certain conduct by the Union warrants setting aside the

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, several of the Respond-
ent’s exceptions allege that the judge’s rulings, findings, and conclu-
sions demonstrate bias and prejudice. On careful examination of the
judge’s decision and the entire record, we are satisfied that the Re-
spondent’s contentions are without merit.
2 We shall modify the judge’s recommended Order in accordance
with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), and to conform to our findings and standard remedial language.
We shall substitute a new notice to conform to the Order as modified.
In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), enfd. in rel. part, King Soopers, Inc. v. NLRB, _
F.3d _ (D.C. Cir. June 9, 2017), we shall also order the Respondent to
compensate affected employees for their search-for-work and interim
employment expenses regardless of whether those expenses exceed
interim earnings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). For the reasons stated in his separate opinion in King
Soopers, supra at 12–16, Chairman Miscimarra would adhere to the
Board’s former approach, treating search-for-work and interim em-
ployment expenses as an offset against interim earnings.
election, which the Union won by a vote of 9 to 5, with 5
challenged ballots, a potentially determinative number.
The judge found that the Respondent violated Section
8(a)(1) of the Act by threatening employees with termi-
nation and unspecified reprisals, giving employees the
impression their protected activities were under surveil-
lance,3 interrogating employees,4 promulgating new work

3 In adopting the judge’s finding that the Respondent violated the
Act when Amjad Malik gave employees the impression that their pro-
tected concerted conduct was under surveillance, we disregard the
Respondent’s bare exception to the judge’s finding. In doing so, we
note that not only did the Respondent fail to brief the exception, but the
Respondent failed to cite to any portion of the judge’s decision address-
ing the surveillance issue and failed to cite record evidence in support
of its exception. Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn.
1 (2005) (“The [r]espondent merely recites the findings excepted to and
cites to the judge’s decision without stating, either in its exceptions or
its supporting brief, on what grounds the purportedly erroneous find-
ings should be overturned. . . . [W]e find, in accordance with Sec.
102.46(b)(2), that the [r]espondent’s exceptions . . . should be disre-
garded.”), enfd. 456 F.3d 265 (1st Cir. 2006). See also, New Concept
Solutions, LLC, 349 NLRB 1136, 1136 fn. 2 (2007).
Moreover, we find no merit in the Respondent’s exception to the
judge’s finding that Malik was a supervisor. The record supports the
judge’s finding that Malik had authority to assign and direct employees,
approve time off, and discipline employees. See Oakwood Healthcare,
348 NLRB 686, 687 (2006). In particular, we note the unrebutted
testimony that Malik disciplined one employee and terminated two
others. To the extent that evidence of Malik’s authority to terminate
employees rested upon hearsay testimony, there were no hearsay objec-
tions made by the Respondent at trial and it filed no exceptions on that
basis.
In concurring with his colleagues’ finding that Amjad Malik is a su-
pervisor under Sec. 2(11) of the Act, Chairman Miscimarra relies solely
on Malik’s possession of authority to discipline and discharge employ-
ees. Chairman Miscimarra disagrees, however, that Malik’s February
17, 2015 comments to employees Jose Michel Torres and Jose Wilfre-
do Argueta created the impression that those employees’ union activi-
ties were under surveillance. Chairman Miscimarra recognizes that
under Sec. 102.46(b)(2) of the Board’s Rules and Regulations, the
Board may disregard an unargued exception. The Board is not required
to do so, however, and Chairman Miscimarra believes it is appropriate
to address unargued exceptions in certain circumstances, including
where the record evidence is insufficient to support an unfair labor
practice finding. See Ozburn-Hessey Logistics, LLC, 362 NLRB No.
180, slip op. at 6–7 fn. 5 (2015) (Member Miscimarra, dissenting in
part). That is the situation here. The record shows that Jose Michel
Torres and Jose Wilfredo Argueta openly engaged in union activity by
speaking with the Union’s representative while standing next to his
vehicle, which was parked directly across the street from the Respond-
ent’s facility—”in direct view of the Respondent’s business,” as the
judge found—and on which a large “Local 660” flag was prominently
displayed. All this was readily visible to anyone looking out of the
Respondent’s office window. When union activity is conducted open-
ly, it is unreasonable to conclude that statements indicating that the
activity has been observed create an impression of surveillance. See,
e.g., Waste Management of Arizona, 345 NLRB 1339, 1339–1340
(2005) (manager did not create impression of surveillance by telling
employee “he knew that employees had held a union meeting,” where
the General Counsel did not show that the meeting was held in secret,
and “given the various other ways in which [the manager] might have
learned of the nonsecret meeting”); Michigan Roads Maintenance Co.,
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rules in response to Section 7 activity, telling employees
it would be futile to select the Union as their collective-
bargaining representative, and threatening employees
with deportation for testifying at the Board hearing.5 The
judge also found that the Respondent violated Section
8(a)(3) and (1) of the Act by terminating eight employees
for engaging in union and protected concerted activity.
The judge ordered some, but not all, of the special reme-
dies requested by the General Counsel.6 In the represen-

344 NLRB 617, 617 fn. 4 (2005) (manager did not create impression of
surveillance by telling employee who had just finished placing union
flyers on vehicles parked in employer’s parking lot not to “start that
union stuff on this property,” where the employee’s union activity was
conducted “in the open”). Moreover, Malik did not reveal detailed
knowledge of the employees’ union activities. Cf. United Charter
Service, 306 NLRB 150, 151 (1992) (even assuming employees’ union
meeting at a restaurant was common knowledge, manager created an
impression of surveillance when he “went into detail about the extent of
the [meeting] and the specific topics [employees] discussed”). Accord-
ingly, Chairman Miscimarra would dismiss the allegation that the Re-
spondent unlawfully created an impression of surveillance.
4 Chairman Miscimarra agrees with his colleagues that the Respond-
ent, by its manager Tony Bindra, coercively interrogated employee
Roberto Reyes in violation of Sec. 8(a)(1) of the Act when Bindra
questioned Reyes about an FLSA lawsuit that had been filed on behalf
of Reyes and his fellow employees. He finds it unnecessary to pass on
the judge’s finding that Bindra’s questions about the lawsuit posed
during a subsequent employee meeting also violated Sec. 8(a)(1) be-
cause this additional finding does not affect the remedy and is therefore
merely cumulative.
5 The Respondent initially contested the General Counsel’s allega-
tion that it violated Sec. 8(a)(1) of the Act by threatening employees
with unspecified reprisals and discharge and telling employees that it
would be futile to select the Union as their collective-bargaining repre-
sentative. When confronted with an audio recording of these threats at
the hearing, the Respondent amended its answer to the complaint and
admitted the violations. Although the Respondent subsequently filed
exceptions to the judge’s finding of these violations, it failed to present
any supporting argument. We find, pursuant to Sec. 102.46(b)(2) of the
Board’s Rules and Regulations, that these exceptions should be disre-
garded. See, e.g., New Concept Solutions, LLC, supra. 349 NLRB at
1136 fn. 2.
6 The judge recommended, among other remedies, that the Respond-
ent be ordered to publish the Notice to Employees in three publications
of local interest, twice a week, for a period of 8 weeks, and to supply
the Union with the names and addresses of current bargaining-unit
employees, updating that list for a period of 2 years. Contrary to our
colleague, we find these remedies to be justified based on the number
and serious nature of the violations found. We also note that on July 5,
2016, the United States District Court for the Eastern District of New
York granted temporary injunctive relief under Sec. 10(j), ordering,
among other things, immediate reinstatement of five discharged em-
ployees. Drew-King v. Deep Distributors of Greater NY, Inc., 194 F.
Supp.3d 191 (E.D.N.Y. 2016). The Respondent has not appealed the
district court’s order. The General Counsel, asserting that the Re-
spondent has not fully complied with the order, has petitioned the court
to hold the Respondent in contempt. These circumstances provide
further support for the enhanced publication remedy. See Ishikawa
Gasket America, 337 NLRB 175, 176 (2001) (Board may impose addi-
tional remedies “where required by the particular circumstances of a
case.”), enfd. 354 F.3d 534 (6th Cir. 2004).
tation case, the judge recommended overruling the Re-
spondent’s objections.7
We agree with the judge’s findings for the reasons set
forth in his decision as further discussed below. In addi-
tion, as discussed below, we will refer Respondent’s
counsel to the Board’s Investigating Officer in connec-
tion with his apparent aggravated misconduct at the hear-
ing in this case.
1. As stated above, the judge found that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by termi-
nating eight employees: Jose Michel Torres, Jose Martin
Torres, Jose Wilfreda Argueta, Henry Hernandez,
Marvin Hernandez, Roberto Reyes, Javier Reyes, and
Augustin Sabillon. For the reasons stated by the judge,
we affirm his findings that the Respondent violated the
Act by discharging Jose Michel Torres, Jose Martin

Chairman Miscimarra does not believe that a publication remedy is
warranted in the circumstances of this case. Although he agrees that
the Respondent has committed numerous unfair labor practices war-
ranting a broad cease-and-desist order and a notice-reading remedy,
Chairman Miscimarra does not believe that the violations in this case
are comparable to the extreme and recurring unlawful conduct in the
rare cases in which a publication remedy has been ordered by the
Board. See, e.g., Pacific Beach Hotel, 361 NLRB No. 65 (2014) (pub-
lication remedy ordered where recidivist respondents were found to
have violated multiple provisions of the Act, the violations were severe
and pervasive and continued over the course of a decade, and the re-
spondents exhibited open contempt for the Act’s requirements); Three
Sisters Sportswear Co., 312 NLRB 853 (1993) (publication remedy
ordered where recidivist respondent committed flagrant and repeated
violations of the Act, including laying off and discharging pro-union
employees, verbally abusing and physically assaulting employees,
blocking employees from exiting its office, instructing employees not
to speak to other employees, and having supervisors clap their hands
when employees looked up from their work), enfd. mem. 55 F.3d 684
(D.C. Cir. 1995), cert. denied 516 U.S. 1093 (1996). If the Respondent
has failed to comply with the district court’s order in a 10(j) proceed-
ing, it is entirely appropriate for the General Counsel to seek a court
order holding the Respondent in contempt. But this is a matter for the
district court to address, and Chairman Miscimarra does not believe the
Board should rely in part on a mere assertion by the General Counsel
regarding the extent of the Respondent’s compliance with the district
court’s order to support ordering a publication remedy in this proceed-
ing. Further, Chairman Miscimarra would order a names-and-addresses
remedy conditionally, the condition being that the revised tally of bal-
lots show that the Union failed to receive a majority of the valid ballots
cast. If the revised tally shows that the Union won the election, it will
be certified as the unit employees’ bargaining representative and enti-
tled to ask the Respondent to furnish it with information regarding the
unit employees it represents. Because such information is presumptive-
ly relevant to a union’s duties as collective-bargaining representative,
the Respondent would be duty bound to provide it, rendering a names-
and-addresses remedy unnecessary.
7 The judge recommended remanding the representation case to the
Regional Director to open and count four of the challenged ballots and
issue a revised tally. There were no exceptions to the judge’s resolu-
tion of the challenges (beyond the supervisory status of Amjad Malik,
discussed above).
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 3
Torres, and Jose Wilfredo Argueta.8 In analyzing the
terminations of the other five employees, the judge found
that the Respondent’s purported reason for the discharg-
es—that the employees refused to sign new work rules—
was pretextual, and that the actual reason was that the
employees had engaged in union activity and protected
concerted activity. In the alternative, the judge found
that the Respondent violated the Act by terminating the
employees for refusing to sign the unlawfully promulgat-
ed work rules.
We agree with the judge that the terminations were un-
lawful, but we rely only on the finding that the Respond-
ent discharged these employees because they refused to
sign unlawfully promulgated rules.9 In adopting that
finding, we do not rely on the judge’s application of Tus-
caloosa Quality Foods, 318 NLRB 405, 411 (1995).
Instead, we rely on Long Island Association for AIDS
Care, Inc., 364 NLRB No. 28, slip op. at 1–2 (2016), in
which the Board found that the employer violated Sec-
tion 8(a)(1) by discharging an employee for refusing to
consent to an unlawful rule.
2. In adopting the judge’s recommendation to overrule
the Respondent’s election objections, we agree with the
judge’s determination that the alleged objectionable con-
duct—a confrontation between the union president and
two of the Respondent’s agents—would not “reasonably
tend to interfere with the employees’ free and uncoerced
choice in the election.”10 Robert Orr-Sysco Food Ser-
vices, LLC, 338 NLRB 614, 615 (2002) (citing Baja’s

8 Chairman Miscimarra agrees with the judge and his colleagues that
the Respondent violated Sec. 8(a)(3) and (1) of the Act when it dis-
charged employees Jose Michel Torres, Jose Martin Torres, and Jose
Wilfredo Argueta. As evidence that the employees’ union activities
were a motivating factor in the Respondent’s decision to discharge
these three employees, Chairman Miscimarra relies on the statements
made by the Respondent’s warehouse manager Herbert Miller just 4
days after these employees were discharged, in which Miller told em-
ployees it would be futile to select the Union to represent them and
threatened employees with discharge and unspecified reprisals if they
selected the Union to represent them. However, Chairman Miscimarra
believes the Respondent did not create the impression that it was en-
gaging in surveillance of employees’ union activities. Accordingly,
unlike the judge and his colleagues, Chairman Miscimarra does not rely
on the creation of an impression of surveillance as evidence of the
Respondent’s anti-union animus.
9 We do not pass on the judge’s finding that the employees were dis-
charged because they had engaged in union and other protected con-
certed activity.
Member Pearce joins his colleagues in adopting the judge’s finding
that the Respondent violated the Act by terminating employees for
refusing to sign unlawfully promulgated rules. Member Pearce would
also adopt the judge’s finding that the Respondent terminated the five
employees because they engaged in union and other protected concert-
ed activity.
10 In the absence of exceptions, we adopt the judge’s decision to
overrule Respondent’s Objection 1.
Place, 268 NLRB 868 (1984)). The judge found that
Union President Gilberto Mendoza, Respondent’s Presi-
dent, Danny Bindra, and the Respondent’s attorney, Saul
D. Zabell, exchanged words and had very brief physical
contact when Mendoza attempted to exit the election area
in order to verify that the Respondent’s video surveil-
lance cameras were shut down before voting began.11
We find that this single interaction would not tend to
affect the election results, particularly in the absence of
evidence that any employee other than the Union’s own
observer was aware of it before voting.12
3. The record here suggests that during the course of
the hearing, Respondent’s attorney, Zabell, engaged in a
persistent pattern of aggravated misconduct that inter-
fered with the judge’s attempts to conduct the hearing.13
The judge put Zabell “on notice that this is an admon-
ishment and a reprimand” on four separate occasions.14
After reviewing the record, we have concluded that it
is appropriate under Section 102.177(d) and (e)(1) of the
Board’s Rules to bring the allegations concerning Mr.
Zabell to the attention of the Investigating Officer for
investigation and such disciplinary action as may be ap-
propriate.15 See Bethlehem Temple Learning Center,
Inc., 330 NLRB 1177, 1177 fn. 3 (2000) (Board referred
alleged attorney misconduct to the Investigating Officer
for appropriate disciplinary action, based on judge’s rec-
ommendation); see also McAllister Towing & Transpor-

11 It is undisputed that the stipulated election agreement required that
the video surveillance cameras be shut down during the election. How-
ever, it is not clear that Mendoza had the right to exit the election area
and enter the facility to verify that the cameras were disabled. In ana-
lyzing this objection, we assume he was not so authorized.
12 We do not rely on the judge’s finding that “nine votes to five is
not a close vote.”
13 Zabell’s apparent misconduct included the following unjustified
and repeated behavior: bullying and intimidating the General Coun-
sel’s witnesses, including by making threats to report them to immigra-
tion authorities; falsely accusing the Union’s president of threatening
Zabell’s safety and referring to him as a “felon”; summoning federal
marshals to the courtroom and insisting on a police presence throughout
the hearing; accusing the General Counsel of misconduct; and question-
ing the trial judge’s competence and authority after rulings had been
made.
14 At one point during the hearing, the judge stated: “Mr. Zabell, I
have never seen such misconduct engaged in by an attorney in these
proceedings in my 43 years with the Board and 35 years as a judge. It’s
all on the record. I refer you to Sec. 102.177 of the Board’s rules and
regulations. You are put on notice that this is an admonishment and a
reprimand. Your conduct before me, before we broke for lunch was
improper, contemptuous, unprofessional, and constituted misconduct of
an aggravated character. It will not be tolerated.”
15 Accordingly, we shall further modify the judge’s recommended
Order to include language referring the alleged misconduct to the In-
vestigating Officer for the purpose of conducting an investigation of the
alleged misconduct and performing other duties consistent with Sec.
102.177(e)(1) of the Board’s Rules and Regulations.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tation Co., 341 NLRB 394, 398 fn. 7 (2004) (same),
enfd. 156 Fed. Appx. 386 (2d Cir. 2005).
ORDER
The National Labor Relations Board orders that the
Respondent, Deep Distributors of Greater NY d/b/a The
Imperial Sales, Inc., Bethpage, New York, its officers,
agents, successors and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminat-
ing against employees for engaging in union activity
and/or protected concerted activity.
(b) Giving its employees the impression that their un-
ion activities were under surveillance by the Respondent.
(c) Threatening employees with unspecified reprisals if
they selected the United Workers of America, Local 660
(the Union) as their collective-bargaining representative.
(d) Telling its employees that it would be futile to se-
lect the Union as their collective-bargaining representa-
tive.
(e) Threatening employees with discharge if they se-
lected the Union as their collective-bargaining repre-
sentative.
(f) Interrogating its employees about their involvement
in a Fair Labor Standards Act lawsuit.
(g) Threatening employees with unspecified reprisals
because of their involvement in the filing of a Fair Labor
Standards Act lawsuit.
(h) Implementing new work rules because employees
engage in union and/or protected concerted activity.
(i) Discharging employees for refusing to sign unlaw-
fully promulgated work rules and disciplinary rules re-
garding cell phone use and lateness.
(j) Threatening employees with legal action in retalia-
tion for participating in a Board hearing or because of
their union activity.
(k) Threatening to report employees to government au-
thorities in order to intimidate witnesses or to discourage
them from participating in Board processes.
(l) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Jose Wilfredo Argueta, Jose Martin Torres, Jose Michel
Torres, Henry Hernandez, Marvin Hernandez, Roberto
Reyes, Javier Reyes, and Augustin Sabillon full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make whole Jose Wilfredo Argueta, Jose Martin
Torres, Jose Michel Torres, Henry Hernandez, Marvin
Hernandez, Roberto Reyes, Javier Reyes, and Augustin
Sabillon for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the judge’s remedy as modified here-
in, plus reasonable search-for-work and interim employ-
ment expenses.
(c) Compensate Jose Wilfredo Argueta, Jose Martin
Torres, Jose Michel Torres, Henry Hernandez, Marvin
Hernandez, Roberto Reyes, Javier Reyes, and Augustin
Sabillon for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and file with the Re-
gional Director for Region 29, within 21 days of the date
the amounts of backpay are fixed, either by agreement or
Board order, reports allocating the backpay awards to the
appropriate calendar year(s) for each employee.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Jose Wilfredo Argueta, Jose Martin Torres, Jose Michel
Torres, Henry Hernandez, Marvin Hernandez, Roberto
Reyes, Javier Reyes, and Augustin Sabillon, and within 3
days thereafter, notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
(e) Rescind the “Employee Code of Conduct” that was
implemented on July 21, 2015, and notify the employees
that it has done so.
(f) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance of
employees, at which the attached “Notice to Employees”
shall be read to employees by a responsible management
official in the presence of a Board agent and an agent of
the Union if the Region or the Union so desires, or at the
Respondent’s option by a Board agent in the presence of
a responsible management official and, if the Union so
desires, an agent of the Union.
(g) Within 14 days from the date of this Order, publish
in three publications of general local interest and circula-
tion copies of the attached Notice to Employees, signed
by the Respondent’s general manager Tony Bindra or his
successor, and 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 Direc-
tor for Region 29 and need not be limited to newspapers
so long as they will achieve broad coverage of the area.
(h) Upon 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
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 5
Union at the end of each 6 months thereafter during a
period of 2 years following the entry of this Order.
(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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic 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 14 days after service by the Region, post at
its facility in Bethpage, New York, copies of the attached
notice marked “Appendix.”16 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 Respond-
ent to ensure that the notices are not altered, defaced or
covered by any other material. If 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 cur-
rent employees and former employees employed by the
Respondent at any time since February 17, 2015.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the alleged misconduct by
the Respondent’s counsel, Saul D. Zabell, as set forth
above, is referred to the Investigating Officer, the Asso-
ciate General Counsel, Division of Operations-
Management, pursuant to Section 102.117(e) of the
Board’s Rules.
IT IS FURTHER ORDERED:
1. The Objections to the election are overruled.
2. The proceedings in Case No. 29–RC–146077 are
remanded to the Regional Director for Region 29. She is

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
directed to open and count the ballots of Jose Wilfredo
Argueta, Jose Martin Torres, Jose Michel Torres, and
Manjit Singh, issue a revised tally of ballots, and issue
the appropriate certification.
Dated, Washington, D.C. June 20, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against employees for engaging in union ac-
tivity and/or protected concerted activity.
WE WILL NOT give employees the impression that their
union activities are under surveillance.
WE WILL NOT threaten employees with unspecified re-
prisals if they select the United Workers of America,
Local 660 (the Union) as their collective-bargaining rep-
resentative.
WE WILL NOT tell our employees that it would be futile
to select the Union as their collective-bargaining repre-
sentative.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees with discharge if
they select the Union as their collective-bargaining repre-
sentative.
WE WILL NOT interrogate employees about their in-
volvement in a Fair Labor Standards Act lawsuit.
WE WILL NOT threaten employees with unspecified re-
prisals because of their involvement in the filing of a Fair
Labor Standards Act lawsuit.
WE WILL NOT implement new work rules because em-
ployees engage in union and/or protected concerted ac-
tivity.
WE WILL NOT discharge employees for refusing to sign
unlawfully promulgated work rules and disciplinary rules
regarding cell phone use and lateness.
WE WILL NOT threaten employees with legal action in
retaliation for participating in a Board hearing or because
of their union activity.
WE WILL NOT threaten to report employees to govern-
ment authorities in order to intimidate witnesses or to
discourage them from participating in Board processes.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jose Wilfredo Argueta, Jose Martin Torres,
Jose Michel Torres, Henry Hernandez, Marvin Hernan-
dez, Roberto Reyes, Javier Reyes, and Augustin Sabillon
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make whole Jose Wilfredo Argueta, Jose
Martin Torres, Jose Michel Torres, Henry Hernandez,
Marvin Hernandez, Roberto Reyes, Javier Reyes, and
Augustin Sabillon for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest, plus
reasonable search-for-work and interim employment
expenses.
WE WILL compensate Jose Wilfredo Argueta, Jose
Martin Torres, Jose Michel Torres, Henry Hernandez,
Marvin Hernandez, Roberto Reyes, Javier Reyes, and
Augustin Sabillon for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and WE
WILL file with the Regional Director for Region 29, with-
in 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating
the backpay awards to the appropriate calendar years for
Jose Wilfredo Argueta, Jose Martin Torres, Jose Michel
Torres, Henry Hernandez, Marvin Hernandez, Roberto
Reyes, Javier Reyes, and Augustin Sabillon.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Jose Wilfredo Argueta, Jose Martin
Torres, Jose Michel Torres, Henry Hernandez, Marvin
Hernandez, Roberto Reyes, Javier Reyes, and Augustin
Sabillon and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
WE WILL rescind the “Employee Code of Conduct”
that was implemented on July 21, 2015, and notify the
employees that we have done so.
WE WILL, upon request of the Union, immediately fur-
nish it with lists of the names, addresses, and classifica-
tions of all our employees as of the latest available pay-
roll date, and WE WILL 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 the Board’s Or-
der.
DEEP DISTRIBUTORS OF GREATER NY, D/B/A
THE IMPERIAL SALES, INC.
The Board’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.
Henry J. Powell and Emily A. Cabrera, Esqs., for the General
Counsel.
Saul D. Zabell, Esq. (Zabell & Associates, P.C.), of Bohemia,
New York, for the Respondent.
Sheri Preece, Esq. (Bryan C. McCarthy, Esq. & Associates,
P.C.) of Brewster, New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on charg-
es 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 is-
sued against Deep Distributors of Greater NY d/b/a The Impe-
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 7
rial Sales (Respondent or Employer) on October 30, 2015.1
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 un-
specified reprisals if they selected the Union as their representa-
tive; 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 dis-
charged 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 Respond-
ent’s employees including Henry Hernandez, Marvin Hernan-
dez, Roberto Reyes, Javier Reyes, and Augustin Sabillon, en-
gaged 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, in-
terrogated 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 Re-
spondent unlawfully implemented new work rules and disci-
pline regarding cell phone use and lateness, and that on that
day, the Respondent discharged Henry Hernandez, Marvin
Hernandez, Roberto Reyes, Javier Reyes, and Augustin Sabil-
lon 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 elec-
tion 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 dis-
criminatees 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 Respondent’s answer, as amended at the hearing, denied
the material allegations of the complaint, and a hearing was

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.
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 de-
meanor 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 nonretail 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 Re-
spondent admits, and I find that it has been an employer en-
gaged 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 Mil-
ler is the warehouse manager and an admitted statutory supervi-
sor. 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 de-
partment 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.
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

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 GC Exh. 26.
3 The Respondent argued at the hearing that Deep Distributors of
Greater New York 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 New York and The Imperial Sales
having its facility in Bethpage is a statutory employer.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
items products. Six or seven employees worked in each de-
partment.
Employee JoseTorres stated that when he began work in
2011 or 2012, Tony Bindra told him that Malik was his super-
visor. 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 occa-
sions, Malik approved the requests.
Jose Torres testified that about 2 or 3 years before the hear-
ing, he saw Malik speak to employee Ramon Muncho but did
not know what they said because he was too far away. Immedi-
ately thereafter, Muncho told Torres that he was fired. Muncho
left the premises and did not return. Similarly, Argueta testified
that, about 3 or 4 years ago, he saw Malik argue with Jose Ra-
mone Argueta who then left the premises. Argueta asked Ra-
mone 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 fill-
ing 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 com-
puter, 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 is a warehouse worker with the same responsibili-
ties 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 responsi-
bilities. 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 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 coworkers became in-
terested in joining a union, and Hernandez contacted Union
Agent Wester Fabres. Beginning in early January, 2015, Her-
nandez 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 Re-
spondent’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 Sabil-
lon 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 en-
tered 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 be-
cause 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 stipu-
lated 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 oc-
curred.
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
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

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 testimony by stating that the
remark by Miller was made after the Union appeared on the scene.
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 9
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, 1 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 pre-
senting at a trade show where customers typically place many
orders for products. Sabillon testified that he did not know any-
one 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 be-
fore the Respondent learned that the Union had filed the elec-
tion 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 see-
ing 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 4
days earlier especially since the Union’s car had been periodi-
cally parked across the street from the facility periodically for 2
months.
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 4 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 4 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.” Mil-
ler 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 es-
tablish that Martin Torres was employed by the Respondent on
February 17, 2015, when Flores returned to work, and that Mar-
tin was not discharged until 3 weeks later, on March 6.
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 2 months after Christmas. Their dis-
charge was 2 weeks after the election petition was filed and 1
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.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 buy-
er 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 broth-
ers.
Tony Bindra stated that in response to the subpoena’s de-
mand for documents which would show the reasons for its de-
termination that there was insufficient work to justify the em-
ployment of Argueta, Jose Martin Torres, and Jose Michel
Torres, the Respondent provided just two documents, identified
as General Counsel Exhibit 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 General Counsel Exhibit
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 docu-
ments 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 General Counsel Exhibit15 and 16. Zabell replied
that if back-up documents exist in the form of data in a com-
puter he was under no obligation to compile a report that satis-
fied the General Counsel. General Counsel noted that the sub-
poena 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 pur-
chase orders exist in a database . . . . Information does exist in
the form of random data in a database that supports the finan-
cial 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

5 The Motion, the Respondent’s Opposition and certain other docu-
ments were received in evidence as G.C. Exhibit 25.
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 conven-
iently 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 employ-
ees were laid off due to a slowdown in business, and that the
Respondent was similarly precluded from producing such evi-
dence relating to the financial status of the Respondent’s busi-
ness. 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 coworkers 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 pretrial
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, 4 days after the three employees
were discharged and 2 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 meet-
ing which was later transcribed and received in evidence. Mil-
ler, 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 bring-
ing 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, be-
cause you will not have a job. We will not bring the other.

6 Hernandez testified that the meeting took place in the morning at 9
or 10 a.m., but his affidavit stated that it occurred after lunch, at about
11 a.m. This minor inconsistency is immaterial. There is no dispute that
the meeting occurred, as supported by the recording of it.
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 11
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 be-
trayed because I always treated everyone right. Because prior
to my getting here you did not take coffee break or take any-
thing. 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 hap-
pened 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 eve-
rything. 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…..
[At this point an unidentified employee told Miller that he
[Miller], as a manager must speak for the workers. Miller re-
plied]
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 hap-
py, 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 re-
called 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 un-
ion? 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 repre-
sentative (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
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 contin-
ued to meet with Union Agent Fabrres. Their conversations
included their concern that they had not been paid for the over-
time 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 Bin-
dra admitted receiving the lawsuit on about July 8. The plain-
tiffs were listed as Jose Reyes, Jairo Bonilla, Augustin Sabillon,
Javier Reyes, Selvin Vasquez, Marvin Hernandez, Henry Her-
nandez, Jose Olan Amador, Armando Lazo, Valerio Baque-
dano, Jose Michel Torres, Jose Argueta, and Noel Efrain Cas-

7 Zabell first claimed that the recordings were not full and complete.
He was given a copy of 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 an-
swer 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 1-hour break,
Zabell amended the Respondent’s answer to admit the allegations set
forth above.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tro. 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 em-
ployees’ 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 repeat-
ed 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.
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 re-
sponses 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 per-
formed 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 pur-
suing 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 allega-
tions 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 Re-
spondent 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 op-
erations. 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 disci-
pline. 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 inci-
dents 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 permit-
ted 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 re-
sult in the immediate imposition of discipline, up to and in-
cluding termination.
Cell phone bins will be provided as a convenience for em-
ployees to store their cell phones though employees are re-
quested to leave their cell phones at home.
Employees who utilize their cell phone during work hours
will be disciplined up to and including termination.
The form had a place for the employee to sign that he
acknowledged and agreed with the policies. Employees testi-
fied that they made and received cell phone calls during work-
ing 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 envi-
ronment: 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 attend-
ance 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 employ-
ees 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 1 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, not-
withstanding 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 Attor-
ney 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.
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 13
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, Rob-
erto 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 paycheck 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 Her-
nandez 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 subpoena which demanded all the signed
policies, only nine were produced notwithstanding that, accord-
ing 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 dis-
charged 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 sup-
port 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 receiv-
ing 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 Syos-
set in late May 2015. Miler stated that from late May through
July 21, when the new policy was introduced, a period of about
7 weeks, the employees worked “with these pieces of equip-
ment 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 be-
cause 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 head-
phones. They told him that they would not sign the policy be-
cause 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, 4
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 put-
ting 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.”
The employees testified that they understood that they were
supposed to report to work on time and certain employees stat-
ed 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 hear-
ing 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 Im-
migration Service.8 Mendoza said that the witnesses were Span-
ish 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,

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.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they credibly testified as to what they heard and that they un-
derstood 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 em-
ployee 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 coworkers, 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 testimo-
ny. 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 dif-
ferent hearing room where I was not present when Zabell alleg-
edly made the comments testified to. These errors do not un-
dermine his testimony, the most important aspect of which was
the comments made by Zabell. Those comments were corrobo-
rated 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 inter-
preter, 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 percent 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 be-
lieved, 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 some-
thing.” He credibly and honestly stated that he does not under-
stand 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 ap-
proach 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 eleva-
tor at the hearing-room floor and walking down the hallway
toward the hearing room he asked Zabell whether the immigra-
tion status of the warehouse employees had an effect on this
case. Zabell replied that if they were “illegal” they can be de-
ported 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 em-
ployees were at the benches in the rear of the hearing room.
Bindra noted that at that time, Zabell said that if the witness-
es give false testimony under the penalty of perjury, such per-
jured testimony could affect their legal status if they apply for
citizenship. Zabell said that they would be giving false testimo-
ny 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 Re-
spondent’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 Eng-
lish. Indeed, they testified in English concerning certain state-
ments 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 ques-
tions, particularly since the Respondent had already admitted
such an allegation, was beyond their limited comprehension of

9 Fabres’ pretrial affidavit stated that those conversations occurred
on December 16. At hearing, Fabres testified that that date was inaccu-
rate due to a mistake. The mistake is immaterial and does not under-
mine his testimony which is supported by employee witnesses, that the
conversations occurred on December 9.
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 15
those terms. Further, minor errors in their testimony or in their
pretrial 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 deny-
ing 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 oc-
curred 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 be-
lievable. He first stated that he did not own Deep Distributors
but then admitted that he owned that corporation. He first 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 every-
thing 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.” Nev-
ertheless, 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 fol-
lowing a day’s break, that they were laid off and not dis-
charged.
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 im-
pression that their union activities were under surveillance by
the Respondent’s supervisor Malik.
The complaint alleges that Malik is the Respondent’s super-
visor and agent. Section 2(11) of the Act defines a statutory
supervisor as 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 ap-
proved 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 ap-
proximately 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, em-
ployees 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 direct-
ing employees in their work. Marquette Transporta-
tion/Bluegrass Marine, 346 NLRB 543, 552 (2006).
In addition, two employees, Jose Torres and Argueta, credi-
bly 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 or-
ders.
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 evi-
dence is clear that Malik is a statutory supervisor. If it is ulti-
mately 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 en-
ter. 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 employ-
ee[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 partici-
pate in union organizing campaigns without the fear that mem-
bers of management are “peering over their shoulders, taking
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
note of who is involved in union activities, and in what particu-
lar 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 activ-
ities were kept under surveillance and therefore violated Sec-
tion 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 Respond-
ent 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 be-
cause 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 1182, 1184–1185 (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 1206, 1206 at 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 busi-
ness next door. Clearly, Miller possessed knowledge, or at least
a suspicion, that the Union was present on behalf of the Re-
spondent’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 testi-
fy and therefore their testimony is unrebutted.
I credit the testimony of Roberto Reyes who stated that Mil-
ler 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 Re-
spondent 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 unlaw-
ful. 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 Mar-
tin 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 4 days before Miller’s strongly
antiunion message to the remaining workers, including admit-
ted threats of discharge, and only 2 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 antiunion comments to all the employees only 4 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 to-
ward 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 Mar-
tin 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 eco-
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 17
nomic defense. As set forth above, only two limited documents
which summarized certain sales or purchase orders was pro-
duced.
As set forth above, Tony Bindra gave inconsistent and con-
tradictory testimony as to whether the three employees were
laid off or discharged. The Respondent failed to provide origi-
nal books and records to support the figures in the two summar-
ies 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 be-
cause 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 2 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.
Incredibly, Tony Bindra testified that he saw Michel Torres
asleep at work at least 3 times, the last being 2 to 3 weeks be-
fore 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 4 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 3 weeks,
from February 17, 2015, when Flores returned, until his dis-
charge on March 6. This completely undermines Miller’s testi-
mony 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 3 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, threat-
ened 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 repre-
sented, and threatened employees with discharge if they select-
ed the Union as their representative.
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 fu-
tile to select the Union, and threatened employees with dis-
charge if they selected the Union as their collective-bargaining
representative.
I accordingly find that these admitted threats violated Sec-
tion 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 pay-
ments required by law.
The complaint alleges that in July 2015, by Tony Bindra, in-
terrogated employees about their involvement in a FLSA law-
suit 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
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 2277, 2278 at 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 in-
formation 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 con-
versation 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 tran-
scription contains no such statements.
In this respect I reject the Respondent’s argument that a let-
ter dated January 3, 2016, from the attorney who filed the law-
suit proves that the allegations made therein are false. The letter
requested Zabell’s consent to file an amended complaint, stat-
ing that the factual allegations concerning the employees’ hours
worked and lunchbreaks in the complaint were not accurate. He
sought to delete the allegations concerning the lunchbreaks and
to present a more accurate representation of the hours worked
by each employee. Thus, at most, the letter represents that cer-
tain allegations contained in the lawsuit were inaccurate, not
the entire 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 law-
suit 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 interro-
gation. 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 de-
fend himself.” However his question whether he and the work-
ers are fighting or not fighting constitutes coercive interroga-
tion. 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 fur-
ther 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 em-
ployees 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 in-
clude 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 re-
ceiving the lawsuit. He stated that he was surprised and “disap-
pointed” that the suit was filed. The fact that he was disap-
pointed 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 en-
courage, 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 ad-
mitted 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 1 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 meet-
ing 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 en-
gage in the protected activity of pursuing their lawsuit.
I accordingly find and conclude, as alleged, that the Re-
spondent 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 im-
plemented 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
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 19
on time or they would be subject to discipline misses the point.
First, employees testified that they called their manager to re-
port their lateness and no discipline was issued. Secondly, Ar-
gueta’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 2 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 antiunion speech to employees, and the Re-
spondent’s admitted threats to the workers. Further, the Re-
spondent 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 Mil-
ler’s admitted threats that employees would be discharged if
they selected the Union, and that it would be futile to so desig-
nate 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 larg-
er facility with more forklift machines in an effort to promote
safety. However, the evidence establishes that the forklift ma-
chines 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 Syos-
set 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 7 weeks.
Miller’s testimony that he told the workers that new rules pro-
hibiting cell phones would be in effect when the faculty moved
cannot be believed. He noted that during those 7 weeks em-
ployees worked with dangerous equipment wearing their head-
phones and he “said nothing.”
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 law-
suit. 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 al-
ways 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 be-
cause 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 Re-
spondent 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 con-
doning 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 vio-
lative 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 estab-
lished a prima facie showing that their activities were a moti-
vating 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 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 em-
ployees 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 under-
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stood 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 Re-
spondent 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 ad-
hered 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, Respond-
ent, 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 Coun-
sel’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 con-
versation concerning immigration between Zabell and Powell
in the hearing room.
[T]threats to employees that election of the union might result
in their being reported to Immigration officials and, presuma-
bly, 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 undoubt-
edly 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 af-
fected 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, never-
theless 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 Za-
bell, 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 Govern-
ment authorities in order to intimidate witnesses and to discour-
age 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 intimi-
dating 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 elec-
tion which was also consolidated with this proceeding.
The Challenged Ballots
Inasmuch as I have found, above, that Jose Wilfredo Ar-
gueta, Jose Martin Torres, and Jose Michael Torres were un-
lawfully discharged, they remained statutory employees at the
time of the election. I therefore direct 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 challeng-
ing party, the Union, to prove that the voter who was chal-
lenged 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.
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 21
The Objections
The Respondent filed the following objections to the elec-
tion:
Prior to the election, and during the course of voting, the Un-
ion pressured Imperial’s employees to vote in favor of the un-
ion. The Union leveraged threats concerning employee’s im-
migration status, along with promises regarding legalizing
their immigration situation, to secure favorable votes. Moreo-
ver, during the course of the election, the Union, in an appar-
ent effort to bully their way to a desired election outcome, re-
sorted to acts of physical violence against Imperial’s agents.
The aforementioned acts have a corrosive effect on the sancti-
ty of a fair election. As such, the NLRB should decline to cer-
tify the March 24, 2015 election and should commence an in-
vestigation into the improper and unlawful conduct that tran-
spired.
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 “al-
legation that a Union representative verbally and physically
accosted the Employer’s representative in front of employees at
the beginning of the election.”
The Director did not direct that a hearing be held on the alle-
gation that a union agent engaged in unspecified threats, intim-
idation and electioneering immediately prior to and at the elec-
tion.
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 un-
ion agents or employees concerning their immigration status in
relation to their vote in the election. Nor did he recall discus-
sions 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 exer-
cising 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. Ar-
gueta denied being spoken to by anyone concerning his immi-
gration 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 Em-
ployer’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 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 preelection 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, aggressive-
ly 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 ware-
house.
Danny Bindra recounted that Mendoza’s chest bumped Za-
bell’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 Men-
doza and between Zabell and Mendoza last 2 to 3 minutes.
DannyBindra recalled that twelve to fifteen employees who
were 20 to 25 feet away and were present to vote, saw the alter-
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cation. 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 ges-
ture.
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 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 Dan-
ny 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 5 to 9
minutes.
Tony Bindra noted that 12 to 14 employees were present
during this incident and stood about 10 to 20 feet away. How-
ever, he also testified that “some of the [workers] were pre-
sent.” 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 physi-
cal 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 5 and 9 minutes.
Danny Bindra testified, alternately that it lasted 1 to 3 minutes,
then 2 to 3 minutes, and then 5 to 9 minutes. Miller stated that
the dispute continued for 3 to 5 minutes. There is no dispute
that when the Board agent came between the men the confron-
tation 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 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 ren-
dered 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 at-
tempted 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 ges-
ture 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 al-
tercation 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
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 23
no contact between them. The argument lasted 4 to 5 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 Her-
nandez, Javier Reyes, and Sabillon denied seeing any argument
at the election. In addition, Jose Michel Torres, Marvin Her-
nandez, and Sabillon denied seeing any physical confrontation.
As set forth above, Argueta stated that he was the only employ-
ee present at the preelection 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.”
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 in 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 em-
ployees’ freedom of choice.” Taylor Wharton Division, 336
NLRB 157, 158 (2001). In determining whether a party’s mis-
conduct 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 cam-
eras, and by Danny Bindra’s testimony that Mendoza said noth-
ing about the video system and simply wanted to enter the
warehouse for no stated reason. It is significant that the Em-
ployer’s manager Miller stated, in contradiction, that the con-
frontation 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 be-
tween Danny Bindra, Zabell and Mendoza. The argument in-
cluded raised voices and profanities. As set forth above, Em-
ployer representatives claimed that Mendoza, being the aggres-
sor, 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 be-
tween the men.
The evidence is clear that there was contact between Mendo-
za, Zabell and Danny Bindra. It is doubtful that angry words
between men who were only “inches” away according to Ar-
gueta would not result in contact between them especially since
he testified that there was “pushing and shoving.” However, I
find that the contact was nothing more than the men pushing
each other in the opposite direction. I do not credit the Employ-
er’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
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatening statements or threatening gestures toward them.
Miller did not confirm that testimony and Mendoza and Ar-
gueta 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 broth-
ers 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 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 confronta-
tion, 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. How-
ever, Tony Bindra first stated that some employees were pre-
sent. 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 at-
tention to if there were other people there.” He later testified
that all the employees were present. However, all the employ-
ees 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 discred-
ited 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, stop-
ping him from proceeding further. Thus, it appears that Zabell
placed his body in front of Mendoza’s, with both equally con-
tributing to the physical contact which I find occurred. Accord-
ingly, if Mendoza was originally at fault for attempting to pro-
ceed 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, Ar-
gueta was given the impression that the Employer was “power-
less against the force of the union.” Rather, as in Chrill Care,
Inc., 340 NLRB 1016, 1016–1017 (2003), where the union’s
agent disrupted an employer meeting with employees and ini-
tially 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 un-
ion agent left the area when the police were called. Here, Men-
doza 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 Uni-
versity 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 employ-
ees 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 reasona-
bly 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 assert-
ing that he had a right to confirm that the cameras were turned
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 25
off. Argueta could therefore reasonably believe that the result-
ing confrontation took place because of the Employer’s chal-
lenge 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.
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 Ma-
lik should not be opened and counted.
I shall remand the proceedings in Case No. 29–RC–146077
to the Regional Director 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 val-
id votes cast at the election were cast for the Petitioner, I rec-
ommend that the Petitioner be certified. If the revised tally of
ballots shows that the Petitioner has lost the election, I recom-
mend 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 in-
terrogating 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.
11. The Respondent violated Section 8(a)(1) of the Act,
while in a Board hearing room, it threatened to report employ-
ees 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 la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent has unlawfully imple-
mented 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 re-
fused 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 prej-
udice 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. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed 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 Secu-
rity Administration so that when backpay is paid to the em-
ployees, 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 receiv-
ing a lump-sum backpay award covering more than 1 calendar
year.
The General Counsel requests an Order that Wilfredo Ar-
gueta, Jose Martin Torres, Jose Michael Torres, Henry Hernan-
dez, Marvin Hernandez, Roberto Reyes, Javier Reyes, and Au-
gustin Sabillon be reimbursed for their search for work and
work-related expenses, without regard to whether interim earn-
ings are in excess of these expenses. Normally, such expenses
are considered an offset to interim earnings. However, the Gen-
eral 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).
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In accordance with the Board’s decision in J. Piccini Floor-
ing, 356 NLRB 11, 15–16 (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 ques-
tion as to whether a particular type of electronic notice is ap-
propriate should be resolved at the compliance stage. J. Piccini
Flooring, above, slip op. at 3. See Teamsters Local 25, 358
NLRB 54 (2012).
The General Counsel has requested certain enhanced reme-
dies. 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 man-
ner,” 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’ fundamen-
tal statutory rights.” Hickmott Foods, 242 NLRB 1357 (1979).
In addition, in such cases, the Board has ordered a respond-
ent 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 em-
ployees, 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 of-
ficial 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 Re-
spondent 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 Ar-
gueta 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 threaten-
ing employees with unspecified reprisals, telling employees
that it would be futile to select the Union, and 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 intimida-
tion 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 re-
quests an Order that the Respondent be required to “schedule
training for all employees on their rights under the Act con-
ducted by a Board agent during paid worktime; and an Order
requiring the Respondent to schedule training for all supervi-
sors and managers on compliance with the Act conducted by a
Board agent during paid worktime. 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 ac-
tivities were under surveillance.
(c) Threatening its employees with unspecified reprisals if
they selected the Union as their collective-bargaining repre-
sentative.
(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 be-
cause of their involvement in the filing of a Fair Labor Stand-
ards Act lawsuit.
(h) Implementing new work rules and discipline regarding
cell phone use and lateness.

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DEEP DISTRIBUTORS OF GREATER NY D/B/A THE IMPERIAL SALES, INC. 27
(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 authori-
ties in order to intimidate witnesses and to discourage them
from participating in Board processes.
(k) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
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 dis-
crimination 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, re-
move 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 Sabil-
lon 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 Con-
duct” 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 meet-
ing 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 worktime, or at the Respondent’s
option, by a Board agent in the presence of the Respondent’s
officials, supervisors and agents named above.
(f) Within 14 days from the date of this Order, publish in
three publications of general local interest and circulation cop-
ies of the attached Notice to Employees, signed by the Re-
spondents’ 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 de-
termined 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 fa-
cility 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 Re-
gion 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained 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 Re-
spondent 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 employ-
ees employed by the Respondent at any time since February 17,
2015.
(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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.
2. The proceedings in Case No. 29–RC–146077 are hereby
remanded to the Regional Director for Region 29. He is di-
rected 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 rec-
ommend 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
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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 nation-
al 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.”
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge you because of your activity on be-
half of United Workers of America, Local 660, or your con-
certed activities or because you filed a lawsuit pursuant to the
Fair Labor Standards Act.
WE WILL NOT give you the impression that your union activi-
ties were under surveillance.
WE WILL NOT threaten you with unspecified reprisals if you
select United Workers of America, Local 660 as your collec-
tive-bargaining representative.
WE WILL NOT tell you that it would be futile to select the Un-
ion 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 dis-
cipline 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 authori-
ties 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,
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 Sabil-
lon 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 worktime, 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 Re-
spondent’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.
DEEP DISTRIBUTORS D/B/A/ THE IMPERIAL SALES, INC.
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.