Domsey Trading Corp.

National Labor Relations Board - Board Decisions

Mar 23, 1993

310 N.L.R.B. 777 (N.L.R.B. 1993)

777
310 NLRB No. 127
DOMSEY TRADING CORP.
1 The Respondent subsequently by letter filed a request that the
Board reopen the record to receive additional evidence or, alter-
natively, to take judicial notice of a judgment of acquittal rendered
by a state criminal court in a matter involving Peter Salm, Respond-
ent’s operations manager and the son of its owner. The General
Counsel and the Union each submitted letters opposing the Respond-
ent’s request. We grant the request to the extent that we enter into
the record the decision of the judge in New York v. Peter Salm,
Docket No. 91K001662-1991, but we otherwise find the request
lacking in merit because the Board is not bound by a state court
judgment or the findings of fact on which the judgment is based.
See generally Nashville Corp., 94 NLRB 1567 (1961). Further, we
note that the standards of proof for criminal cases arising in state
courts are significantly more stringent than those applicable to ad-
ministrative proceedings before the Board.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The Respondent further asserts that the judge’s credibility resolu-
tions are the result of bias. After a careful examination of the entire
record, we are satisfied that this allegation is without merit. There
is no basis for finding that bias and partiality existed merely because
the judge resolved important factual conflicts in favor of the General
Counsel’s witnesses.
In fn. 20 of his decision, the judge stated that the Respondent had
sent ‘‘second’’ offers of reinstatement to some former strikers in re-
sponse to ‘‘the Union’s unfair labor practices.’’ It appears, however,
that in this footnote the judge intended to refer to the unfair labor
practice charges which the union had filed concerning the Respond-
ent’s failure to reinstate former strikers. We therefore correct this
misstatement which does not affect our ultimate conclusions here.
Although we agree with the judge that nonstriking employee Sam
Padgett acted as the Respondent’s agent in this case and that he was
an intimidating and menacing presence to returning strikers, we dis-
avow any possible racial implications in the comments the judge
made pertaining to Padgett.
3 The judge failed to include in his decision a ‘‘Conclusions of
Law’’ section that sets out the specific violations of Sec. 8(a)(1), (3),
and (4) which he found in this case. In adopting the judge’s sub-
stantive findings here, we shall provide below formal ‘‘Conclusions
of Law’’ in order to correct this inadvertent omission.
Regarding the judge’s finding that employee Giles Robinson’s dis-
charge on December 1, 1989, violated Sec. 8(a)(3) of the Act, we
note that the Respondent has argued in its exceptions that Robinson
was discharged because he ceased working that day when union rep-
resentatives entered its facility. We reject this argument, however,
because the credited evidence shows that the Respondent told Robin-
son at the time of his discharge that it was terminating him ‘‘due
to all this trouble [we] are having with the Union.’’ We note that
the Respondent failed to except to the judge’s finding that the dis-
charge of reinstated striker Francisco Moriera violated Sec. 8(a)(3)
and (1).
The Respondent argues that under Mississippi Steel Corp., 169
NLRB 647, 662–663 (1968), its duty to offer reinstatment extended
only to the 132 of the 195 strikers listed on Appendix A who re-
ported for work on August 13, 1990. The failure of some employees
to appear on August 13 raised a valid question by the Respondent
about the status of these employees based on the Union’s telegraphic
representation that the striking employees, without noted exceptions,
would appear on August 13 ready to report for work. See Champ
Corp., 291 NLRB 803, 885 (1988), enfd. 933 F.2d 688 (9th Cir.
1990). However, where a request for reinstatement appears ambig-
uous, the employer bears the burden of requesting clarification. Here
the Respondent failed to do so. As the Board stated in Home Insula-
tion Service, 255 NLRB 311, 312 (1981):
Where any such ambiguity remains unclarified due to the Re-
spondent’s decision to ignore the offers and not seek clarifica-
tion, the Respondent may not be heard to complain if such un-
certainty is resolved against its interest. Haddon House Food
Products, Inc., 242 NLRB 1057 fn. 6 (1979).
We agree with the judge that the Respondent did not make valid
offers of reinstatement to any employees on August 13, including
Gerda Benoit and Miracia Porsenna, because it unlawfully required
them to complete an application for reinstatement and produce INS
‘‘green cards.’’ Thus, on August 13 the Respondent never made a
valid offer of reinstatement, collective or otherwise, in response to
the Union’s unconditional offer on behalf of all strikers to return to
work. As a result, the strikers who did not return to work that day,
including Benoit and Porsenna, are still entitled to reinstatement.
Since the Respondent’s offers that day were invalid, we cannot ap-
propriately inquire into Benoit’s and Porsenna’s reasons for refusing
to work on August 13. As the Board stated in Consolidated
Freightways, 290 NLRB 771 (1988), enfd. 892 F.2d 1052 (D.C. Cir.
1989):
We will not allow a discriminatee’s response to an offer invalid
on its face to ‘‘retroactively validate [an offer] which [was] defi-
cient when made.’’ . . . If, and only if, an offer of reinstatement
is fully valid on its face, then an examination of a
discriminatee’s reasons for declining the offer must be under-
taken.
Continued
Domsey Trading Corporation, Domsey Fiber Cor-
poration and Domsey International Sales Cor-
poration, a Single Employer and International
Ladies’ Garment Workers’ Union, AFL–CIO
and Local 99, International Ladies Garment
Workers’ Union, AFL–CIO. Cases 29–CA–
14548, 29–CA–14619, 29–CA–14681, 29–CA–
14735, 29–CA–14845, 29–CA–14853, 29–CA–
14896, 29–CA–14983, 29–CA–15012, 29–CA–
15119, 29–CA–15124, 29–CA–15137, 29–CA–
15147, 29–CA–15323, 29–CA–15324, 29–CA–
15325, 29–CA–15332, 29–CA–15393, 29–CA–
15413, 29–CA–15447, and 29–CA–15685
March 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 1, 1991, Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party Union
each filed cross-exceptions and supporting briefs. Ad-
ditionally, the General Counsel filed a brief in support
of the judge’s decision, and the Respondent filed an
answering brief to the General Counsel’s and the
Union’s cross-exceptions.1
The National Labor Relations Board has delegated
its authority in this case to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as set out in full below,3 to modify the rem-
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In these circumstances, we find it unnecessary to pass on the
judge’s analysis of the Board’s holding in Esterline Electronics
Corp., 290 NLRB 834 (1988), including his discussion of the
Board’s ‘‘requirement of good faith dealing’’ imposed on employers
and individual discriminatees. See Orit Corp., 294 NLRB 695 fn. 3,
699 (1989).
We agree with the judge that former strikers had legitimate rea-
sons for declining facially valid offers of reinstatement that the Re-
spondent sent to them on September 11, 19, and 24, 1990. As the
judge found, the record clearly discloses that these unrecalled former
strikers, who continued to gather regularly outside the Respondent’s
facility, knew from conversations with employees whom the Re-
spondent previously had recalled, that the Respondent was physically
and verbally abusing the returning strikers. Thus, employee Gertha
Denaud testified that she did not return to work because employees
Louis Antoine Dormeville and Antoinette Romain had told her that
‘‘when they came back to work, the people there insulted them,
fought with them and hit them.’’ Employee Gertha Denaud testified
that she also declined reinstatement ‘‘because I was afraid.’’ Denaud
said that ‘‘there are people who came back and they were threat-
ened. There was Antoinette [Romain] who came back and they
threw clothing at her, she fell and it was an ambulance that took
her away.’’
Further, the Respondent sent these September recall letters to the
former strikers via a form of mail service that required their signa-
tures for delivery. Although many of the employees were unable to
pick up their letters at the post office for several days after the postal
service had attempted delivery, the Respondent in virtually every
case denied reinstatement to former strikers who reported for work
later than the reporting time the Respondent had specified in the let-
ters they received, even if only by a few hours. Employees Rose St.
Juste, Maximo Lacayo, and Luis Ramos Frederick all testified that
in late August they told former strikers awaiting reinstatement that
the Respondent had refused to hire them when they reported for
work past the return date specified in the Respondent’s letter. Em-
ployee Frederick further testified that he had heard from other em-
ployees that they had not been able to work because they appeared
at the Respondent’s facility after the designated reporting date. Em-
ployee Marie Mondestin testified that she did not report after she
picked up her letter several hours past the designated reporting date
because she had heard from other employees that the Respondent did
not allow returning employees to report late. For these reasons, we
agree with the judge that the Respondent’s September offers of rein-
statement were insufficient to toll backpay for employees who had
received them but did not attempt to report for work because their
designated reporting date had passed or because they feared harass-
ment on the job.
4 Additionally, we adopt the judge’s findings that employees Cae-
sar Amador, Jean L. Bonny, Bardinal Brice, Roberto Morales, Juana
Peralta, and Yolande Heurtelou did not engage in any strike mis-
conduct that would preclude their reinstatement following the strike
under Clear Pine Mouldings, 268 NLRB 1044, 1046 (1983), enfd.
mem. 765 F.2d 148 (9th Cir. 1985). Because the judge found that
Brice did not, as the Respondent contended, spit on the Respond-
ent’s security guard, John Tubior, during the strike, we find it unnec-
essary to pass on the judge’s further finding that such misconduct,
even if it had occurred, would not have justified Brice’s discharge.
edy, and to adopt the recommended Order as modified
below.
1. The judge found that the conduct of employees
Joseph Aris and Jean Sigay Pierre in forming a
‘‘human chain’’ to prevent strike replacements from
reaching the bus they were attempting to board was so
serious that it would have entitled the Respondent, in
other circumstances, to deny reinstatement. Based on
the evidence that Peter Salm, the son of the Respond-
ent’s owner and the manager of the assembly line
where most of the unit employees worked, himself en-
gaged in violent conduct and condoned the verbal and
physical abuse of returning strikers by nonstriking em-
ployees, the judge concluded that the Respondent vio-
lated Section 8(a)(3) of the Act by denying reinstate-
ment to these strikers. Thus, the judge found that, in
light of the evidence that more violent acts of mis-
conduct by nonstrikers went unpunished, the Respond-
ent’s denial of reinstatement to Aris and Pierre was not
made in good faith and constituted disparate treatment.
In adopting the judge, we note that the Board stated
in Aztec Bus Lines, 289 NLRB 1021, 1027 (1988):
Although an employer does not violate the Act by
refusing to reinstate strikers who have engaged in
serious misconduct, it is not free to apply a dou-
ble standard. It may not knowingly tolerate behav-
ior by nonstrikers or replacements that is at least
as serious as, or more serious than, conduct of
strikers that the employer is relying on to deny
strikers reinstatement to jobs.
Applying this analysis here, we agree with the judge’s
conclusion that the Respondent violated the Act by
discharging these two employees. We rely particularly
on the Respondent’s failure to discipline employee
Sam Padgett who, inter alia, physically assaulted two
returning female strikers, causing injuries that resulted
in the employees’ hospitalization. Although the judge
found, and we agree, that in other instances Padgett
acted on Peter Salm’s direction and as the Respond-
ent’s agent in abusing returning strikers, it appears that
Padgett may have acted on his own when he assaulted
the two former strikers. We stress that one of these at-
tacks occurred outside the Respondent’s facility as
Padgett and his victim were waiting for public trans-
portation at a bus stop. Nevertheless, we find that the
Respondent had knowledge of Padgett’s violent con-
duct because one incident occurred as the former strik-
er was attempting to work and the other, described
above, resulted in the police arresting Padgett while he
was working at the Respondent’s facility. Because the
Respondent failed to discipline Padgett for this mis-
conduct, we conclude that the Respondent accorded
Aris and Pierre disparate treatment in violation of Sec-
tion 8(a)(3) by failing to reinstate them based on their
noninjurious pushing and shoving while engaged in
protected concerted activities.4
2. Both the General Counsel and the Union have ex-
cepted to the judge’s failure to find that nine identified
employees were unfair labor practice strikers who are
entitled to offers of reinstatement and backpay. The
record shows that six of these individuals—Jean
Lacombe, Marie Leconte, Emilio Meredith, Jose Angel
Ortiz, Freda Osias, and Marie L. Pierre—signed in and
779DOMSEY TRADING CORP.
5 White Oak Coal Co., 295 NLRB 567, 571 (1989).
6 We note that the judge, after finding in the remedy section of
his decision that employee Marie L. Pierre was not a striker, in-
cluded her name in Appendix A among those employees who are
to receive offers of reinstatement and backpay. Based on our finding
above that she was an unfair labor practice striker, we shall include
Pierre’s name in the revised Appendix A.
7 Id. at fn. 4.
8 We shall delete Time’s name from Appendix A which the judge
had inadvertently included there.
9 See, e.g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 216 (1964); Virginia Electric & Power Co. v. NLRB, 319 U.S.
533 (1943); NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
10 NLRB v. S. E. Nichols, Inc., 862 F.2d 952, 962–963 (1988),
enfg. as modified 284 NLRB 556 (1987); Textile Workers v. NLRB,
388 F.2d 896, 904–905 (1967), cert. denied 393 U.S. 836 (1968);
Continued
received strike benefits from the Union on at least one
occasion during the strike. Based on this evidence
demonstrating their participation in the strike, we find
that these employees made common cause with the
strikers and they, therefore, should enjoy the rights of
unfair labor practice strikers.5 Accordingly, we con-
clude that the Respondent further violated Section
8(a)(3) and (1) of the Act by failing to offer these em-
ployees reinstatement following the Union’s uncondi-
tional offer to return to work. We shall require the Re-
spondent to reinstate these six employees with appro-
priate backpay.6
With respect to the remaining three individuals,
Verrance Joseph, Jean Malvoisin, and Marie Annette
Time, the evidence shows only that they were employ-
ees of the Respondent who ceased working when the
strike began. Although the Board has held that an em-
ployee is not required to picket in order to show that
the employee supported the strike,7 we find in this par-
ticular case, where the Respondent employed a tran-
sient work force in a relatively large unit, that addi-
tional evidence is necessary to support a finding that
they, like their fellow employees above, joined the
Union’s strike. We note that, in the absence of any af-
firmative showing that these employees made common
cause with the strike or even sought to return to work
upon its conclusion, it is plausible that these employ-
ees coincidentally terminated their employment with
the Respondent at the time the strike began. Thus, on
these particular facts, because we decline to speculate
whether these employees joined the strike, we do not
provide any remedy for Joseph, Malvoisin, and Time.8
3. In adopting the judge’s recommendation that
Peter Salm be required to read the Board’s notice to
assembled groups of employees, we note that in fash-
ioning remedies the Board is authorized by Section
10(c) of the Act ‘‘to take such affirmative action . . .
as will effectuate the policies of the Act.’’ Further-
more, the Supreme Court has long recognized that the
Board’s power in the area of prescribing effective rem-
edies is ‘‘a broad discretionary one, subject to limited
review.’’9
Applying these concepts in Conair Corp. v. NLRB,
721 F.2d 1355, 1386–1387 (D.C. Cir. 1983), the court
affirmed the Board’s order requiring the Employer’s
president to read the notice ‘‘[i]n order to dispel the
atmosphere of intimidation created in large part by the
president’s own statements and actions . . . .’’ That
court later found in Food & Commercial Workers v.
NLRB, 852 F.2d 1344–1349 (D.C. Cir. 1988), that the
Board had not abused its discretion by ordering a simi-
lar remedy where the Employer’s president ‘‘was in-
volved in a large number of the violations for which
the company was cited.’’
We conclude that the remedies that the Board or-
dered by the employers’ presidents in those cases are
even more suitable for Peter Salm as he was clearly
the principal actor in the Respondent’s outrageous con-
duct. As the judge pointed out, it was Peter Salm who
swiftly responded to the advent of the Union by inter-
rogating employees, threatening them with discharge,
creating the impression of surveillance, promising and
terminating employees’ benefits, and offering bribes
and protection to employees if they refrained from
union activity. Then, after employee Giles Robinson
had introduced him to the Union’s representatives who
demanded recognition, Peter Salm immediately dis-
charged Robinson ‘‘due to all this trouble that we [are]
having with the Union . . . .’’ Salm later discharged
employee James Charles who, like Robinson, was
among five or six employees on the Union’s orga-
nizing committee.
During the strike that followed, Salm denigrated
both the strikers and, in their presence, the Union’s
representatives, by the gross and disgusting, racially
and sexually demeaning comments he made to them.
Further, Salm directed an employee to back the Re-
spondent’s truck into a car driven by a union rep-
resentative, causing property damage and, on another
occasion, threw a rock that struck and injured a female
representative of the Union. After the strike ended,
Salm delayed and impeded the return of the unfair
labor practice strikers to their former jobs. Addition-
ally, Salm harassed strikers whom the Respondent did
recall and also directed employee Samual Padgett, the
Respondent’s agent, and other nonstriking employees
to abuse returning strikers. Further, Salm personally
discharged most of the 12 returning strikers whom the
Respondent terminated following the strike. We also
emphasize that during the course of the hearing in the
instant proceeding, Salm discharged employee Maximo
Martinez in violation of Section 8(a)(4) for giving tes-
timony adverse to the Respondent’s interest.
We recognize that the instant proceeding arises in
the Second Circuit where the court has been reluctant
to require that company officials personally read the
Board’s notice to unit employees.10 Instead, in cases
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 296 (1967), cert. denied
389 U.S. 1005 (1968).
11 S. E. Nichols, 862 F.2d at 962.
12 Textile Workers, 388 F.2d at 904 fn. 9.
13 We also specifically adopt, inter alia, the judge’s finding in the
remedy section of his decision that the Respondent’s widespread un-
fair labor practices warrants a broad cease-and-desist order under
Hickmott Foods, 242 NLRB 1357 (1979), and that the Respondent
has the option, following Peter Salm’s reading of the notice in the
English language, of designating its own supervisors or allowing
Board representatives, with Peter Salm remaining nearby, to translate
the notice into the various other tongues spoken by the unit employ-
ees.
where the Board has imposed this remedy to vitiate
widespread and egregious unfair labor practices, the
court has given the offending employer the ‘‘alter-
native, at its option, of having the notice read by a
Board representative, rather than by [its] president
. . . .’’11 Yet, the court has also stated that ‘‘we do
not hold that a reading provision without this alter-
native of reading by Board representatives would never
be appropriate.’’12
Based on the violence that Peter Salm has per-
petrated, directed, and condoned here, his racial and
sexual degradation of unfair labor practice strikers and
union representatives, and the other unfair labor prac-
tice violations he personally committed as described
fully above, we believe that it would effectuate the
policies of the Act by requiring that Peter Salm read
the notice in order to assuage the fears of the unit em-
ployees that their future involvement in union and
other protected concerted activities will not result in
similar misconduct on his part. This case is clearly dis-
tinguishable from Monfort of Colorado, 298 NLRB 73
(1990), where the Board did not require the employer’s
president to read the notice because he was personally
responsible for only two of the unfair labor practices
found. We do not impose this remedy for punitive rea-
sons. It is designed, rather, specifically to address Peter
Salm’s demonstrated willingness and proclivity to re-
sort to unlawful means, including violence, to thwart
the union’s organizing campaign and otherwise to run
roughshod over the fundamental statutory rights of em-
ployees. Thus, because it will best effectuate the poli-
cies of the Act, we adopt the judge’s recommendation
directing that Peter Salm read the notice in English to
the unit employees.13
CONCLUSIONS OF LAW
1. Domsey Trading Corporation, Domsey Fiber Cor-
poration and Domsey International Sales Corporation,
a Single Employer (the Respondent), is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Ladies’ Garment Workers’ Union,
AFL–CIO, and Local 99, International Ladies Garment
Workers’ Union, AFL–CIO (the Union), are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
3. The Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(1) of the Act by:
(a) threatening employees with discharge or reprisals
to discourage them from joining or supporting or as-
sisting the Union;
(b) harassing employees on the job by cursing at
them and insulting them, or by making obscene com-
ments to and obscene gestures at them, or by spitting
on them or making faces at them, or by making dispar-
aging remarks or gestures, or by touching them or sub-
jecting them to verbal abuse, or by throwing things at
them in order to discourage employees from joining,
supporting, or assisting the Union or to retaliate
against them for engaging in an unfair labor practice
strike;
(c) threatening to assault employees or physically
assaulting them or causing them to be assaulted or
struck by clothing bundles or any other object, or
condoning such physical assaults upon its employees,
or assaulting representatives of the Union or throwing
rocks at them, or damaging or spitting on the auto-
mobiles of representatives of the Union, in the pres-
ence of its employees, in order to discourage employ-
ees from joining, supporting, or assisting the Union or
to retaliate against them for engaging in an unfair labor
practice strike;
(d) engaging in degrading or abusive conduct di-
rected to its employees or to union representatives, in
the presence of the employees, calculated to discourage
employees from joining, supporting, or assisting the
Union;
(e) interrogating employees about their own or other
employees’ union membership, activities, or sym-
pathies, or concerning other protected activity, includ-
ing the filing of unfair labor practice charges with the
National Labor Relations Board;
(f) engaging in surveillance of its employees, or cre-
ating the impression that it is spying on employees
while engaged in union activity, or offering or prom-
ising money to employees to induce them to provide
Respondent with information regarding the Union or to
engage in surveillance of the meetings and activities of
the Union;
(g) threatening employees that their continued sup-
port for the Union is futile because the Respondent
will never recognize the Union or sign a contract with
the Union;
(h) threatening employees with the loss of paid sick
days and holidays in order to discourage them from
supporting the Union;
(i) directing employees to remove clothing with a
union insignia on it.
(4) The Respondent has engaged in unfair labor
practices in violation of Section 8(a)(3) of the Act by:
781DOMSEY TRADING CORP.
(a) issuing disciplinary warnings to employees
James Anthony Charles and Lucien Henry because
they engaged in union activity;
(b) discharging employees Giles Robinson, James
Anthony Charles, Louis Antoine Dormeville,
Dieulenveux Zama, Marie Rose Joseph, Ronald Jean
Baptiste, Mulert Zama, Antoinette Romain, Marie Ni-
cole Mathieu, Margaret St. Felix, Nilda Matos, Victor
Velasquez, Jose DeLeon, and Francisco Moreira be-
cause they engaged in union activity;
(c) refusing to reinstate all the employees listed in
the attached ‘‘Appendix A’’ to their former jobs or, if
their former jobs no longer exist, to substantially
equivalent jobs, because these employees engaged in
an unfair labor practice strike;
(d) imposing more onerous working conditions on
employees or assigning or transferring them to less de-
sirable and more arduous work positions or
videotaping them or subjecting them to more vigilant
supervision or taking away privileges previously en-
joyed, because the employees engaged in an unfair
labor practice strike or they joined, supported, or as-
sisted the Union;
(e) requiring unfair labor practice strikers, in order
to qualify for reinstatement, to fill out and submit by
registered mail, return receipt requested, application
forms and Immigration and Naturalization Service
‘‘Employment Eligibility Verification (I-9)’’ forms or
other documents, or to present social security cards,
green cards, passports, birth certificates, or other per-
sonal identification when personally applying for rein-
statement;
(f) instituting and implementing new rules in order
to discourage employees from joining, supporting, or
assisting the Union or to retaliate against them for en-
gaging in an unfair labor practice strike;
(g) withholding from employees Christmas turkeys
and hams and annual employee vacation benefits in
order to discourage them from joining, supporting, or
assisting the Union or to retaliate against them for en-
gaging in an unfair labor practice strike.
(5) The Respondent violated Section 8(a)(4) of the
Act by discharging employee James Anthony Charles
in part because he refused to identify those individuals
who had filed unfair labor practice charges against the
Respondent with the Board and by discharging em-
ployee Maximo Martinez because he gave testimony
adverse to the Respondent’s interest during the unfair
labor practice hearing held in this case.
(6) The Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Domsey Trading Corporation, Domsey Fiber Corpora-
tion and Domsey International Sales Corporation, a
Single Employer, Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Substitute the attached Appendix A—to which the
names of Jean Lacombe, Marie Leconte, Emilio Mere-
dith, Jose Angel Ortiz, and Freda Osias have been
added and from which the name of Marie Annette
Time has been deleted—for that of the administrative
law judge.
APPENDIX A
Rosa Abreu Jose DeLeon
Joseph Acces Immacula Delhia
Jean Max Adolphe Christian Delva
Dennis Aguilar Mercedes Delvillar
Marie Ahrendts Gertha Denaud
Francois Alexandre Jesula Denis
Cesar Amador Mezinette Desinor
Andreze Andral Alama Amine Diawara
Andrea Andre Aparicia Diego
Viergelie Anier Voltaire Dorcius
Joseph Aris Francesca Dormetus
Marie Rose Armand Antoine L. Dormeville
Alberto Arzu Jerome Dunn
Longina Arzu Adeline Duvivier
Marie Augustin Wilmide Estimond
Atulie Balan Marie Estivaine
Jean Balan Michelet Exavier
Eloge Jean Baptiste Eduardo Roman Feliciano
Ronald Jean Baptiste Hipolito Figueroa
Gerda Benoit Yvette Fleurimonde
Gladys Bernard Marlon D. Flores
Maximo Bernardez Marie Josee Francois
Rose Bertin Luis Ramos Frederick
Edaize Blanc Marc Frederique
Hubert Florent Boni Michelet Germaine
Jean L. Bonny Jose Gonzales
Bardinal Brice Tomas Guevaro
Inovia Brutus Rafael Gomez
Lalane Camner Jose L. Gonzalez
Bertha Camille Marie Gresseau
Claire Camille Banilia Guerrier
Marie Camille Rufino Guity
Gertha Camilus Hector Guity
Solange Carasco Pablo Guity
Ghislaine Caristhene Milka Gutierrez
Marie C. Casseus Ana Hernandez
Adrian Castillo Maximo Hernandez
Simion Castillo Yolande Heurtelou
Rose Marie Castor Sako Idiessa
Marcial Santos
Castro Marie Jacques
Christianne Celestin Louis P. Jean
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wilner Ceptus Therese Jean
Brigitte Charles Marie E. Jeanty
Cecile Charles Rene Jeronimo
Eugenie Charles Evodia Joseph
Marie Charles Louine Joseph
Sy Chiekh Ghislaine Joseph
Louis Cherfilus Marc Olyns Joseph
Alourdes Choute Marie Rose Joseph
Anne Cidienfort Marie May Joseph
Ana Contreras Clorina Joseph
Jean Robert Cyprien Leanna Joseph
Julmene Joseph Josette Philogene
Ucemeze Kernizan Reynaldo Pierluisse
Lourdes Labissiere Jacqueson Pierre
Teresa Lacayo Jean Sigay Pierre
Maximo Lacayo Marie L. Pierre
Jean Lacombe Marcos Pitillo
Mimose Lacroix Miracia Porsenna
Mureille LaFleur Romulo Ramirez
Nevuis Lambert Milton Ramos
Fritho Lapomarede Orlando Ramos
Marie Leconte Loficiane Raymond
Alma Louis Violette Raymond
Marc Dala Louis Chano Reyes
Marie N. Louis Rene Rochez
Rachelle Louissaint Eddy Rodrigue
Michelet Lousma Antoinette Romain
Marie C. Lousma Marie A. Romain
Idiamise Lovinski Marie M. Roseau
Pierre Louis Ludovic Antonine St. Fort
Mireya Lugo Margaret St. Felix
Andrew Mack Rose Marlene St. Juste
Pierre Malebranche Yollande Sainrastil
Diankha Mamadu Joseph Saintval
Eduardo Martinez Monique Samedi
Maximo Martinez Laboriano Senteno
Jesula Massena Richard Simon
Marie Nicole
Mathieu Justo Suazo
Fernande Mathurin Vicente Suazo
Nilda Matos Pierre A. Surin
Rose Andree
Mauvais
Marie Thelismond
Hilda Medina Anna Thomas
Emilio Meredith Kathy Toussaint
Alta Meuze Celina Valentin
Jean Demard Midy Jose L. Valentin
Miguel Flores
Miranda Josette Vaval
Marie C. Mondestin Victor Velasquez
Roberto Morales Imanitte Verrier
Francisco Moreira Agare Victor
Georges Murat Joseph Virgile
Marie A. Narcisse Wilfrid Virgile
Rufino Norales Lourdes Williams
Oscar Nunez Mulert Zama
Irene S. Nunez-
Reyes Ruth Zama
Jean Olivier Dieulenveux Zama
Carolina Olivo Auguste Zama
Jose Angel Ortiz Alejandro Palacios
Williams Ortiz Juan Ramon Palacios
Freda Osias Juana Peralta
Ann S. Goldwater, Esq., April M. Wexler, Esq., and Emily De
Sa, Esq., for the General Counsel.
Richard Gaba, Esq., of Garden City, New York, for the Re-
spondent.
Ira J. Katz, Esq., of New York, New York, for the Charging
Party International.
Stuart A. Weinberger, Esq., Richard M. Greenspan, Esq., and
Karen Hertz, Esq., of White Plains, New York, for the
Charging Party Local 99.
DECISION
BENJAMIN SCHLESINGER, Administrative Law Judge. The
complaints in this unfair labor practice proceeding allege dis-
charges, numerous threats and interrogations, and Respond-
ent’s failure to reinstate 200 employees to their former posi-
tions after they had ended their strike. The complaints also
involve obscenities and obsessive hatred of the Union, and
racial, ethnic, and sexual degradation of people who merely
wanted to take advantage of their right to engage in protected
activities under the National Labor Relations Act 29 U.S.C.
§ 151 et seq. Respondents deny that they did anything wrong.
FINDINGS OF FACT
I. JURISDICTION AND PLEADINGS
About the only facts that have been agreed to are the
names of the parties and their functions. Domsey Trading
Corporation and Domsey Fiber Corporation are New York
corporations with their principal places of business in Brook-
lyn, New York, where they have been engaged in the grad-
ing, packing, and shipping of used clothing and exporting of
textiles. Domsey International Sales Corporation is also a
New York corporation at the same address, where it sells
used clothing and textiles and related goods in a retail facil-
ity (the Store) located next to the plant of the Trading and
Fiber Corporations. All of them have been affiliated business
enterprises with common officers, ownership, directors, man-
agement, and supervision; have shared common premises and
facilities; have provided services for and made sales to each
other; have interchanged personnel with each other; and have
held themselves out to the public as a single-integrated busi-
ness enterprise. I conclude, as Respondents admit, that they
constitute a single integrated business enterprise and a single
employer within the meaning of the Act.
During the years preceding the issuance of each of the
complaints, Respondents purchased and caused to be trans-
ported and delivered to their Brooklyn facility used clothing
and textiles and related products, goods, and materials valued
in excess of $50,000 directly from points outside the State
of New York and sold and shipped from their facility to
points outside of New York materials valued in excess of
783DOMSEY TRADING CORP.
$50,000. I conclude that Respondents are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Board asserted jurisdiction over Domsey
Trading and Domsey International in Domsey Trading Corp.,
296 NLRB 897 (1989). Because they constitute a single em-
ployer, and for ease of reference, because the record does not
distinguish with great particularity the functions of each and
their various officers, representatives, managers, and super-
visors, I will hereafter refer to them collectively as ‘‘Re-
spondent.’’ I also conclude International Ladies’ Garment
Workers’ Union (International) and Local 99, International
Ladies’ Garment Workers’ Union (Local 99), are both labor
organizations within the meaning of Section 2(5) of the Act.
Again, for ease, I will almost always refer to them both as
the Union.
The relevant docket entries are as follows: The Inter-
national filed its unfair labor practice charge in Case 29–CA–
14548 on December 22, 1989, and a complaint issued on
February 2, 1990. The International filed its unfair labor
practice charge in Case 29–CA–14619 on January 30, 1990,
and a complaint issued on March 6, 1990, which was amend-
ed on June 25, 1990, and February 22, 1991. The Inter-
national filed its unfair labor practice charge in Case 29–CA–
14681 on February 26, 1990, and a complaint issued on
March 30, 1990. The International filed its unfair labor prac-
tice charge in Case 29–CA–14735 on March 20, 1990, and
a complaint issued on April 11, 1990, which was amended
on April 18, 1990. The International filed its unfair labor
practice charge in Case 29–CA–14845 on May 7, 1990, and
a complaint issued on June 25, 1990. The International filed
its unfair labor practice charge in Case 29–CA–14853 on
May 11, 1990, and a complaint issued on June 25, 1990. The
International and Local 99 filed their unfair labor practice
charge in Case 29–CA–14896 on May 29, 1990, and a com-
plaint issued on July 9, 1990. The International filed its un-
fair labor practice charge in Case 29–CA–14983 on July 9,
1990, and a complaint issued on August 1, 1990. Local 99
filed its unfair labor practice charge in Case 29–CA–15012
on July 19, 1990, and a complaint issued on August 30,
1990. Local 99 filed its unfair labor practice charges in
Cases 29–CA–15119, 29–CA–15124, and 29–CA–15137 on
August 14, 16, and 22, 1990, respectively, and a consolidated
complaint issued on March 1, 1991. Local 99 filed its unfair
labor practice charge in Case 29–CA–15147 on August 30,
1990, and a complaint issued on October 30, 1990. Local 99
filed its unfair labor practice charges in Cases 29–CA–15323,
29–CA–15324, and 29–CA–15325 on November 2, 1990,
and its charges in Cases 29–CA–15332, 29–CA–15393, and
29–CA–15413 on November 7 and December 10 and 1990,
respectively, and a consolidated complaint issued on Decem-
ber 28, 1990. Local 99 filed its unfair labor practice charges
in Cases 29–CA–15447 and 29–CA–15685 on January 8 and
April 18, 1991, respectively, and complaints issued on Feb-
ruary 22 and April 26, 1991, respectively.
II. CREDIBILITY
Most of the allegations of the complaint were disputed.
The facts cannot be recited without a determination of the
credibility of the witnesses. I found that the witnesses called
by the General Counsel, mainly employees, attempted to tell
the truth as they best remembered it. Most of them were Hai-
tian immigrants; the much smaller percentage was Spanish-
speaking. They may not have been the most educated or the
most sophisticated; but they were decent people, trying to
support their families and trying to be treated with dignity,
as human beings. A theme, for example, that often arose dur-
ing the hearing was their intense distaste for Respondent’s
practice of calling the employees not by their names, but by
their badge numbers, and of allowing female employees to
go to the bathroom only if they had a card (or pass). The
latter grievance does not appear to be that significant, except
that there was only one card available; so another of the fe-
male employees, among a total complement of about 200–
300 employees, who needed to go to the bathroom at the
same time, could not.
This is not to say that their recollections could not have
been tempered by economic considerations. They were obvi-
ously motivated to regain their jobs at the end of the strike.
But, in general, I find that these employees were simply try-
ing to make the best of their low-paying, menial jobs; and
their testimony was so basic, so common, so earthy, that it
could hardly have been made up. Curse words were not the
stuff of most of these people. Some had difficulty narrating
the events, asking me for permission to repeat the obscenities
that they were called to testify about. One witness broke
down after narrating how she was mistreated. I watched them
carefully and am convinced that they were telling the truth.
I should add that some witnesses did not articulate clearly
the nature of their claims. There was sometimes much dif-
ficulty of communication. However, I blame this more on
cultural differences and the process of translating to and from
the witnesses’ native tongue. Any difficulty was not caused
by the witnesses’ attempt to hide facts and not tell the truth.
There is no question that there were inconsistencies in
some of the testimony of some witnesses called by the Gen-
eral Counsel, but I did not find the vast majority of them to
be of such moment that they changed my view of the overall
truthfulness of the narration. In a number of instances, Re-
spondent’s brief inflated out of proportion the alleged incon-
sistencies. For example, one of the issues in the first dis-
charge allegation involved whether Giles Robinson brought
the business card of a union representative to Peter Salm,
one of Respondent’s principals, at a time when Robinson
should have been working. Respondent relied principally on
the testimony of employee Marie Josee Francois, who was
asked whether she was present when Robinson was dis-
charged. She answered that she was, ‘‘because I was working
on the same table with him.’’ In fact, when Peter came back
to Robinson’s work area to fire him, which was 5 minutes
after Robinson had given him the card, Robinson was then
working, as was Francois. More importantly, I understood
that, in so answering, she was merely identifying the area
where she was, and I did not understand her to be saying
that she was working at that time.
I will not dwell on each alleged inconsistency, except to
note them where they were materially important. Otherwise,
I note that they have all been considered and factored into
my ultimate credibility resolutions and factual findings. To
the extent that there was testimony that conflicts with my
findings, I have credited the witnesses whose testimony I
rely on. Testimony in contradiction to that upon which my
factual findings are based has been carefully considered but
discredited. Indeed, when a witness has been generally cred-
ible, but certain parts of that witness’s testimony conflicted
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with other testimony or was otherwise improbable, only
those portions which I have credited have been set forth
herein. In doing so, I have also taken into consideration in-
herent probabilities in light of other events; corroboration or
lack of it; and consistencies or inconsistencies within the tes-
timony of each witness and between the testimony of each
and that of other witnesses with similar apparent interests.
See generally NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
(1962).
While my impression of the Union’s witnesses was uni-
formly favorable, my impression of Respondent’s witnesses
was quite different. Respondent was owned by Arthur Salm
and one partner, but the day-to-day operation of the plant
was entrusted to his three sons, Peter, Cliff, and David.
David, who ran the Store which sold used clothing, played
a minor role in this drama, as did Arthur. Many of the com-
plaints’ allegations were aimed at Cliff, but most involved
Peter, its manager. Peter was a participant in one of the very
ugly events which occurred at the premises. In the midst of
the strike, in March, when the hatred had reached the boiling
point and beyond, when ugliness was spreading onto the
streets where the strike was taking place, Peter had the sin-
gularly stupid idea to order that a table be brought into the
street and placed in front of the Union’s picket line. There,
in the presence of the mostly Haitian-born strikers, a black
cloth was spread over the table and, on top of that, were
placed five or six bunches of bananas. Most of the strikers
testified that Peter then said to them: ‘‘This is for you mon-
keys to eat.’’ Peter followed that by imitating a monkey,
scratching himself under his arm.
This outrageous demonstration was such an act of pure ha-
tred, hatred of the strikers’ color, race, and ethnic back-
ground, that it can hardly be doubted how it was intended.
But Peter did not know, half apologizing from the witness
stand if someone found it offensive, but appearing not to ap-
preciate how offensive it was and how it could not be mis-
read into anything but a open personal attack upon his strik-
ing employees. Furthermore, he failed to understand the con-
sequences and repercussions of what might follow from his
actions. In that sense, Peter was uncontrolled; colloquially,
he was a ‘‘loose cannon.’’ He acted without thinking, be-
cause of hate of the union movement which was festering in
his shop and apparently because no one in the plant was able
to control him.
It is his lack of understanding, his lack of normal conduct,
that causes me to believe that he was capable of many of
the violations which might in other circumstances seem un-
usual and less than wholly probable. For example, when the
Union called off its strike and strikers returned to reclaim
their jobs, Peter did not recognize one of the strikers, who
identified himself as a former employee. Peter sent him
away, although it would have been prudent and so easy for
him to check his records to see whether this individual had
been employed by Respondent prior to the strike. The
records, in fact, showed his name. Instead, by being foolish,
by being totally unthinking, Peter created a liability of prob-
ably thousands of dollars when there ought to have been no
liability at all. Furthermore, Peter seized upon the most
minor of alleged incidents and attempted to create reasons to
terminate employees. When a returning employee hesitated
for several minutes in accepting an offer to return to work,
Peter attempted to transform that into a refusal. When an em-
ployee called to say that for medical reasons she would not
be coming to work, and he indicated that there was no prob-
lem, Peter terminated her for missing work. When Peter gave
an employee permission to leave to handle the custody of his
daughter, Peter then terminated him for leaving without per-
mission.
His intent in putting out the bananas cannot be doubted.
Although Peter seemed to express some regret, what uttered
from his mouth was hollow, a refusal to admit his purpose,
which demonstrated not shame and penitence, but a lack of
candor. He attempted to mislead me into believing that he
was beyond reproach, by putting the blame on the Union’s
principal organizer, Jean Guesly Morisseau (Tigus). It was
Tigus, not he, who said that he supposed that the bananas
were intended for the monkeys (the strikers). However, Tigus
was the Haitians’ friend and standard bearer, and he would
never have said such a thing had not Peter uttered these
words first, and Tigus was merely repeating them. (Tigus re-
called, in rebuttal, that Peter had said, ‘‘[H]ere’s for you
monkeys to eat’’ and that he might have replied, ‘‘[T]hese
bananas are for monkeys.’’) Thus, Peter was wholly unbe-
lievable when he attempted to switch to Tigus the essence
of what he meant to impart to the strikers: his contempt for
their union activities by attacking their ethnicity, their color,
their intelligence, their morality, and their humanity.
By lying about the event involving the bananas, I find that
he and his denials cannot be trusted—about that event, about
his throwing rocks at a union representative, about his curs-
ing, about his fostering discharges, and about his condoning
the deeds of his henchmen, including the particularly threat-
ening Sam Padgett, who cursed elderly alien workers with
‘‘mother-fucker’’ while Peter and other members of his fam-
ily stood and watched, laughing or with smiles on their faces.
I, therefore, discredit all of Peter’s testimony, unless it was
fully corroborated by impartial or adverse witnesses or was
so probable, and the opposing testimony was so improbable,
that Peter’s testimony must be true.
Another younger member of the Salm family, Cliff, was
not much better, and what was evident from his testimony,
as well as all the other witnesses called by Respondent, was
an attempt to cover up for his nonthinking brother. His narra-
tion of the incident with the bananas made as little sense as
his brother’s. According to him, he was looking out the win-
dow when he saw the bananas being brought into the street.
He called Peter immediately on a walkie-talkie and told him
to take the bananas away; Peter immediately complied with
his advice and removed the bananas and the table imme-
diately; and the incident was over in 2 minutes. Security
guard Sidney Soule testified that Peter, who was standing by
the door while this incident occurred, did not have a walkie-
talkie. The witnesses, even in their attempt to protect Peter,
could not get their stories straight. Another attempted cover-
up was a rock-throwing incident: Peter threw a rock, or more
likely a brick, striking Natalie Mercado, a union representa-
tive, on the head. Here, Respondent’s witnesses did much
better. The entire Salm family and staff came to Peter’s de-
fense, including one person who said that he was the culprit,
not Peter. As admirable as it may have been for all of them
to tell the same story to keep Peter from trouble, I trust the
persons on the picket line who actually saw Peter throw the
rock. They had little to gain by their testimony, except per-
haps revenge; but I have little to believe that they were at-
785DOMSEY TRADING CORP.
tempting to fabricate what they saw. To the contrary, the wit-
nesses for Peter were trying to save his skin, not only for
this proceeding but also for the criminal action which may
even now have been heard.
There were numerous other witnesses who testified on be-
half of Respondent, but I found them all trying to protect
their Employer, primarily Peter, rather than being forthright.
For example, they uniformly testified that Peter did not use
foul language or racial epithets at all; but this record does
not approach cleanliness of expression. The witnesses called
by the General Counsel, on the other hand, were uniformly
sincere and candid. Some of the antics of the Salms, as re-
lated by the witnesses, were so typical of Peter’s mentality
that the testimony could hardly be made up or fabricated.
Peter fired people without cause, he badgered them without
cause, he treated them like animals or even, perhaps, like ci-
phers, as exhibited by his reference to his employees not by
their names but by their badge numbers.
In sum, I watched Respondent’s witnesses as they testi-
fied, and their demeanor persuaded me that little of what
they said was true. Instead, they discharged many employees
without any justification; and, when the Union’s half-year
strike ended, they tried their utmost to ensure that few union
supporters would return, and that those who did would soon
be terminated or forced out of the plant.
III. THE UNION CAMPAIGN BEGINS; RESPONDENT
IMMEDIATELY REACTS
The open union activities started on October 26, 1989,
when the International called a meeting of Respondent’s em-
ployees at a church two blocks away from Respondent’s fa-
cility. There, about 100 employees met and discussed their
problems. They decided that it would be best to try to orga-
nize. An employees’ organizing committee was formed con-
sisting of Giles Robinson, Marie Josee Francois, James
Charles, Bardinal Brice, Jean L. Bonny, and perhaps Lucien
Henry, although most witnesses testified that he was named
later. Employees signed cards authorizing the International to
represent them and were given blank cards to solicit support
from their fellow employees.
When employees showed up the following morning at 7
a.m. to work overtime (overtime was worked an hour before
and an hour after the regular workday of 8 a.m. to 4:30
p.m.), Peter told them that those who went to the meeting
would not work, but would start at 8 a.m. It was obvious
who went to the meeting; they had left at 4:30 p.m. the pre-
vious day and thus had not worked their normal overtime.
Never before, testified some employees, had Respondent de-
nied them the opportunity to work overtime, and Brice testi-
fied that he had never been advised that working overtime
in the morning was contingent on working the afternoon be-
fore.
Sylvio Maxi, Respondent’s principal supervisor under the
Salms, claimed that his action was not illegal, because the
employees who had been scheduled to work the prior after-
noon had not told him that they would not stay for overtime.
Besides, Maxi did not know where the employees had gone
and could not rely on their attendance in the morning. Thus,
he scheduled the employees who worked that afternoon to
finish their work in the morning. However, Supervisor Juan
Perez testified that he and Maxi knew that the employees
were talking about a union before the meeting that night and
knew that the reason why so few people remained to work
overtime was that they attended the meeting.
Under Wright Line, 251 NLRB 1083 (1980), enfd. as
modified 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982); approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), the General Counsel
showed enough to state a prima facie case of a violation.
There was a showing that the employees were denied over-
time, ostensibly because they attended the union meeting.
Respondent must then prove by a preponderance of the evi-
dence that it would have taken the same action as it took,
regardless of whether it was also illegally motivated by the
employees’ union activities.
Respondent met its burden. Overtime was traditionally
worked in order to cleanup the plant of clothes which had
not been sorted and to move away the clothes that had been
graded and were contained in carts or ‘‘wheelers.’’ Overtime
was scheduled in the morning to finish what had not been
finished that prior afternoon and was always given to those
who had worked that afternoon. If the employees scheduled
to work overtime had asked Maxi for permission to leave
and not work overtime, he stated that he would have granted
them permission, but they would not have worked in the
morning. It made no difference to him whether the employ-
ees went to a union meeting or a baseball game. They would
have been treated the same. Peter’s statement that the em-
ployees who had gone to the union meeting had not been as-
signed overtime merely reiterated the policy that those who
worked overtime in the afternoon were entitled to it the next
morning. No employee testified that the rule was different,
and the employees who went to the meeting missed only that
morning’s overtime. Under Wright Line, supra, Respondent
would have refused to give the employees overtime anyway.
By consequence, I find no violation.
But that is the only allegation of an unfair labor practice
that morning that I will recommend be dismissed. Peter told
Nevuis Lambert that he knew that Lambert had attended the
meeting the evening before. He asked Lambert to bring him
his union card, promising him protection. Lambert, who had
attended the meeting, denied any knowledge of a card. Peter
then reassigned Lambert from his previously light work to a
different job, pushing the big wheelers which, when full,
were normally handled by two employees. Lambert, how-
ever, was assigned to do this job by himself, and he found
the work very hard and too heavy for him. (Lambert is 5 feet
5 inches tall and weighs 125 pounds.) On December 4, Peter
moved him to work on a job where he had to lift heavy
bales.
Both these jobs were harder than his prior jobs. From the
date when Lambert started to work for Respondent in Sep-
tember 1986 his job had changed little. When he started, he
was a general worker and worked wherever Maxi told him,
pushing wheelers and working on the conveyor belt. When
working the small wheeler, his job was to bend down and
take clothing out of wheeler and lift it up on to the table.
He was reassigned to the big wheeler; and, although he did
not have to lift anything, it was very hard to push. Baling
was hard because, after the clothes were baled, he had to
push the heavy bale to a standing position, a task he found
very difficult.
Henry, who attended the union meeting, was reassigned to
a new job by Supervisor Williams Campos at about 9:30
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Marie Thelismond’s testimony does not accord with this narra-
tion of Lambert, whom I find would have more accurately recalled
what was said to him. I find it improbable that Peter would have
attempted to bribe Lambert into going to the union meeting that
night, as she testified, without having asked him to report back what
happened there and who attended it.
a.m. He was to work at the shirt line, sorting the shirts; but
instead of receiving help from another employee, as was nor-
mal, no one was assigned to help him. Finally, after 5 hours
of having to do two employees’ jobs by himself, Campos as-
signed another employee to help him. Francois Alexandre
had also attended the union meeting and had signed a union
authorization card and took more cards to get other employ-
ees to sign. Peter moved him from his job of sorting and
folding heavy coats to working on the big press. Alexandre
described it as more arduous work, requiring knowledge and
experience and more strength. He worked at this job for 2
weeks and then was reassigned to his former job.
Francois testified that about 20 or 25 employees were
shifted to other locations. She overheard Maxi asking Peter
why he was moving the employees around. Peter replied that
he knew that these people went to the union meeting. With
the exception of explaining that Alexandre was moved to the
big press because the person employed there was sick, an al-
legation which was otherwise unsupported, Peter never testi-
fied about any reason for transferring these employees. I find
that he moved the employees to more difficult jobs because
they had attended the union meeting the night before. I con-
clude that Respondent violated Section 8(a)(1) of the Act.
At about 9 a.m., Peter asked Robinson how the meeting
was last night. Robinson feigned ignorance, asking, ‘‘What
meeting?’’ Peter, in turn, said, ‘‘I don’t know. The meet-
ing.’’ Peter just looked at Robinson and walked away. An
hour later, Peter returned to advise Robinson that he was
making some changes. Robinson was no longer entitled to
use the upstairs bathroom that he had been using for more
than a year. That afternoon was only for supervisors. At 2
p.m. Peter returned with some new rules. Several weeks be-
fore, Robinson had complained that he had not been making
overtime and it appeared that he was not going to be given
a raise. He asked Peter if he could purchase clothing from
Respondent at a reduced price, half the normal price for all
clothing up to 50 pounds, and the full price for all amounts
over 50 pounds. The money that Robinson saved, $1 per
pound for the first 50 pounds, was the same as a raise to
Robinson, who sold used clothing for extra money. Peter
agreed. Now, Peter advised that that deal was off. Respond-
ent was expecting some labor trouble and, Peter said, ‘‘We
might as well start saving our money.’’
Two hours later, Peter came to inspect the clothing that
Robinson had set aside in a barrel to purchase. He turned the
barrel over, throwing the used clothing on the floor. He
called his brothers, Cliff and David, to come over to look at
‘‘this good stuff’’ and said that he could use the clothes to
sell in Respondent’s Store. Robinson said that Peter had
never told him not to buy the kind of clothes he was picking
out and complained that Peter was picking on him. Peter re-
plied: ‘‘I’m not picking on you. I can stop you from buying
all together [sic] anyway and don’t raise your voice at me
because I’ll throw you right out on your ass. I don’t care if
you had twenty years or thirty years, I’ll throw you right out
on your ass.’’ (As will be seen, below, Peter carried out his
threat.)
It is clear from these facts that Respondent acted quickly
and somewhat harshly when it learned that the employees
were interested in joining the Union. First, Peter tried to as-
certain what had transpired at the union meeting, and even
offered a bribe to Lambert, whom he also offered protection
if he would resign from the Union. He gave Robinson the
impression that he knew that the union meeting had taken
place, and he reassigned many employees to different posi-
tions, the three above-named to harder positions, because
they went to the meeting. Robinson was a subject of special
treatment. He took away his bathroom privileges and his
right to purchase clothing at a reduced rate and then threat-
ened him with discharge on a concocted charge of secreting
for purchase clothes that could not be purchased and were
intended only for sale by the Store. I conclude that all these
acts violated Section 8(a)(1) of the Act.
With respect to the interrogation of the employees, I have
considered the Board’s test outlined in Rossmore House, 269
NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985),
that an interrogation is illegal when, under all the cir-
cumstances, the interrogation reasonably tends to restrain, co-
erce, or interfere with rights guaranteed by the Act. Evidence
of the coercive nature of Peter’s interrogations is ample.
Peter was Respondent’s principal operating officer. The em-
ployees were not open and active union supporters. The
questioning of them ‘‘had no legitimate purpose and the
questions . . . were designed to determine [the employees’]
involvement in protected activities.’’ Hunter Douglas, Inc.,
277 NLRB 1179, 1181 (1985), enfd. 804 F.2d 808 (3d Cir.
1986). Peter was trying to find out whether the employees
were involved in the union organization effort and to use that
information to defeat the Union by conduct which, I later
find, violated the Act. Although the interrogations were iso-
lated events, they were accompanied by reprisals or threats
of reprisals, were part of Respondent’s scheme to find out
what the employees were doing and to thwart those activities
quickly, and constituted only some of the multitude of the
unfair labor practices committed by Respondent. Great Dane
Trailers, 293 NLRB 384 (1989). I conclude that these inter-
rogations, as well as the other interrogations found herein,
violated Section 8(a)(1) of the Act. Timsco, Inc. v. NLRB,
819 F.2d 1173 (D.C. Cir. 1987).
Respondent continued to engage in various violations the
next month. On November 20, Peter told Lambert that he
knew that Lambert belonged to the Union and offered that,
in exchange for Lambert giving him his union card, Peter
would give him a raise. Lambert told Peter to give him a
raise first and then he would turn over his card. Peter, how-
ever, asked for Lambert’s proof first.1 On the same day,
Peter also came over to the table where Francois was work-
ing and told her that he knew that she had been going to the
union meetings. He told Supervisor Fito to watch Francois
as she worked, because she was in big trouble; she was on
the committee to bring in the Union. He told Fito to fire her
if she did anything wrong. Francois said that if she were
fired, Peter would have to give back to her all the money
Respondent used to deduct from her pay when the employees
were represented by another union, a reference to the
Board’s decision, 296 NLRB 897 (1989), that required Re-
spondent to disband a union it dominated and to repay the
787DOMSEY TRADING CORP.
employees for all dues illegally deducted. Peter replied that
he did not care.
The following day, Peter again told Francois that he knew
that she was a member of the union organizing committee.
When she protested that she was not and asked how he
knew, he said that someone had told him. Peter then said that
he would accept the Union, but he would fire all the old em-
ployees. Later he repeated that the new workers would ben-
efit from the Union, not the old employees, whom he would
fire. At first blush, these seem like strange threats; but, as
will be seen later, Peter’s thinking was based on his desire
to rid himself of any employees who, he believed, had be-
trayed him by asking the Union for help.
Thus, when the Union called a strike the following Janu-
ary, and the strike ended unsuccessfully, Peter attempted to
avoid recalling the strikers (the old employees) or, if he did
reinstate them, he used every trick to fire them or make their
lives as uncomfortable as possible so that they would leave.
This constitutes the answer to the numerous arguments in
Respondent’s brief that the General Counsel made no show-
ing that various employees’ protected conduct was a moti-
vating factor in their discharges. Peter understood that they
supported the Union, because the Union had made a demand
to represent them and they had later participated in the strike.
Peter’s statements supply the likely illegal motivation for
much of his later conduct. He also committed numerous vio-
lations of Section 8(a)(1) of the Act. He gave Lambert the
impression that he knew of his union activities, and he prom-
ised him a raise if Lambert disavowed his support of the
Union. Peter interrogated Francois and gave her the impres-
sion that he knew of her union activities. He directed a su-
pervisor to watch her more closely, and the only reason for
that, I infer, was his knowledge of her union support. He
threatened her and all the employees with discharge because
of their union activities. But more violations were to come.
A. The Union Demands Recognition; Robinson and
Others Are Fired
On December 1, four union representatives came to the
plant shortly before 8 a.m. and Robinson, who had been ex-
pecting them, went to meet them. One of them gave Robin-
son his business card and asked who was in charge. Robin-
son told him that Peter was, and he left to find Peter, whom
he told that there some people waiting to see him, giving
him the business card. Peter looked at it and threw it to the
ground. He told Robinson to get them out; but Robinson re-
plied that Peter, not he, should get them out, and he left to
return to his work station. (Francois recalled these events dif-
ferently and more graphically. After throwing the business
card to the ground, Peter said to Robinson: ‘‘Fuck you.’’
Then he turned around and left.)
The organizers met with Peter and presented him with
their written demand, which listed an organizing committee
of Robinson, Francois, Henry, Brice, Charles, and Bonny,
and cautioned ‘‘that they must not be punished or discrimi-
nated against in any way under penalties described in the
Act.’’ Respondent apparently read this not as a warning that
there was a Federal law which protected employees who en-
gaged in lawful activities, but as an invitation to punish the
committee. By the end of January, three committeepersons
had been discharged and one other had been threatened with
the loss of his job. (Francois and Robinson had been pre-
viously threatened, as found above.)
One member of the committee was fired within minutes.
At about 8:15 or 8:20 a.m. Peter told Robinson: ‘‘Robby,
due to all this trouble that we [are] having with the union,
we decided to just let you go.’’ He accused Robinson of hav-
ing started the movement for the Union (‘‘instigating my
property,’’ testified Robinson). Robinson protested that he
was not the one who brought in the Union, but Peter replied
that he would take his chances. Peter called for security
guards and Robinson was accompanied to the front of the
plant. Arthur Salm was looking out the door and turned to
face Robinson, who asked him the reason for his discharge.
Arthur first claimed that he did not have to give any reasons,
but then answered that Robinson did not produce any more
and that he made a lot of mistakes.
Because I have credited the employees generally in this
proceeding, it is not difficult to find that Robinson’s dis-
charge violated the Act. Peter said to him that he was being
discharged because of the trouble with the Union; the dis-
charge took place within minutes of the Union’s demand for
recognition; Robinson’s name was on the demand, as a mem-
ber of the committee; and Peter cursed when Robinson gave
him the business card of one of the union representatives.
Those facts, together with Respondent’s previous violations
a month before, after the Union’s first meeting, provide
ample proof of discriminatory reasons under the Act.
Furthermore, there was no justification for the reasons
given by Arthur that day. Robinson’s work record was al-
most without blemish. Employed for more than 27 years, he
had never been given a warning or suspended or otherwise
reprimanded. The only failure of production, if it may be
called that, is that Robinson was once promoted to be a su-
pervisor of the area where the cotton rummage was sorted.
After 6 months (2, according to Respondent’s witnesses),
however, Peter told Robinson that he was too soft with the
employees, he had to push them harder, he had to be mean
and he had to fight, and he was ‘‘too nice a guy.’’ However,
Peter reassigned Robinson to the job that he had held just
before he became a supervisor, so Peter could not have been
dissatisfied with Robinson’s work as an employee.
The only mistake that Respondent accused Robinson of
making was the mixing of other fabric into a shipment of
wool to Italy, which resulted in Respondent’s loss of its en-
tire Italian wool market. Respondent did not prove, however,
that Robinson was the person who made this error. There
were others who could have been responsible; and, until his
discharge, Respondent never blamed Robinson. In any event,
Respondent’s loss occurred at the end of 1987 and the begin-
ning of 1988, at least 1-1/2 years before it fired Robinson.
After it discovered the problem with the shipment, it neither
disciplined nor warned Robinson. Indeed, it later gave him
the responsibility to supervise employees and the opportunity
to purchase clothing at a reduced rate, hardly the punishment
that one would expect would be given to an employee who
had lost Respondent $100,000 of business.
Thus, because of Peter’s statement that Robinson was
being discharged as a result of Respondent’s trouble with the
Union, the pretextual nature of the reasons stated to Robin-
son by Arthur, and the timing of Robinson’s discharge, I find
that the General Counsel proved a prima facie case of a vio-
lation of Section 8(a)(3) and (1) of the Act. However, to the
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Two interrogations were alleged in Case 29–CA–14619, as to
which Anne Cidienfort was to testify. She suffered a stroke before
the hearing commenced and was unavailable to testify. Instead, the
General Counsel offered her investigatory affidavit. Although the
conduct she related is similar to other allegations and is of the type
that I have credited, I find that there was no corroboration of her
allegations and, of greater importance, no opportunity for Respond-
ent to cross-examine her so that the truth of her statements could
be tested. Furthermore, even if I credited them, the relief that I have
extent that Wright Line, supra, requires an analysis of the
reasons relied on by the Salms at the hearing, I reject Re-
spondent’s claim that it discharged Robinson for any legiti-
mate reason.
Respondent acknowledges that it permitted its employees
to purchase clothing, but contends that it forbade employees
from purchasing certain types of clothing, such as work
clothes, because they were easily salable and thus were saved
for sale at its Store. During one period of time, the Store ran
out of these salable garments, and Respondent charged that
Robinson was stashing this sort of clothing. Robinson readily
admitted that he did select some of these pieces, such as uni-
form jackets, for resale, but he expressed total surprise that
Respondent was at all interested in them. He said that he had
been purchasing the same type of clothing for years.
I believe him, because I cannot credit Respondent’s claim
that this employee of more than 27 years suddenly disobeyed
orders and hid property which he should never have thought
of purchasing. Indeed, Respondent claims that it knew that
he was doing so since early in the summer of 1989, yet it
did not discharge him until months later, within minutes of
receiving the Union’s demand for recognition, with Robin-
son’s name prominently written on it. It never warned him
that he was not to purchase certain garments until the Union
held its first meeting in October. If Peter, Cliff, and David
really thought that Robinson was stashing clothing, one
would think that some discipline was forthcoming. What
makes their narration incredible is that they did not discipline
him, but permitted him a 50-percent break on the price of
purchasing garments as a reward for his behavior.
In addition, Peter and David made up a fantastic story
about how, one Saturday, in an attempt to find all the gar-
ments that they said were missing from the Store, they
snooped around the work stations. Of course, they went to
Robinson’s station, in Peter’s words, ‘‘[b]ecause we know
that Robinson purchased a lot of clothing that was missing,
a lot of the items that Robbie did buy,’’ a statement which
supports Robinson’s version that he had been buying this
type of property for years, without question. The only dif-
ficulty with this story is that Robinson bought his clothes on
Fridays, and Peter would not have discovered anything. Why
they did not search Robinson’s garments when he bought
them remains a mystery. Furthermore, no one told Robinson
that he was being fired for stashing clothing which was un-
available for purchase. He was told only that he did not
produce well any more. Finally, secreting this valuable kind
of clothing and paying for it at the rate of $1 or $2 per
pound is really a form of stealing. Robinson was paying less
for an item than it would have cost in the Store and was pur-
chasing items which Respondent had allegedly advised all
employees could not be purchased. Stealing is punished in
Respondent’s plant by immediate discharge, but Robinson’s
conduct was known and unpunished by Respondent for
months.
Another reason alleged by Respondent is that Robinson
brought strangers, the union representatives, onto its property
the day that it discharged him, and he did so after 8 a.m.,
when he should have been working. There was no proof that
Robinson brought them in, and the union representatives tes-
tified that they came in through the open front entrance to
Respondent’s plant. There was no lock on the door or on the
gate. Admission could be gained by any vendor or customer
or anyone having business to transact with Respondent. Ar-
thur testified that people may enter the factory, but must wait
at the entrance and ask to speak to someone in charge. His
particular complaint that day was that the union representa-
tives came 60 feet into the factory. Peter, however, said that
they remained at the front, which, I find, is exactly what they
should have done if they had followed Arthur’s procedures.
Arthur’s testimony in this regard is completely unreliable,
and I discredit him generally. Arthur was trying to cover up
for Peter, who ‘‘shot from the hip,’’ conduct which will be
evidenced throughout this decision. He acts without thinking.
He clearly was angered that Robinson should introduce the
Union into the plant, and Peter acted immediately to dem-
onstrate that the Union would not be tolerated. I conclude
that Respondent violated Section 8(a)(3) and (1) of the Act.
On the same day that Robinson was discharged, at about
10:30 a.m., Peter attempted to bribe Lambert, to whom he
complained that Lambert was not supplying any information
about the Union. ‘‘Here’s what I’m giving to you,’’ said
Peter, handing him an envelope. Lambert opened it and
found $13. At lunchtime Peter told Lambert that he knew
that Lambert had gone to the meeting and asked him to give
him the ‘‘yellow card.’’ If he did, Peter would give him pro-
tection. I conclude that Peter’s attempt to obtain information
about the Union by a bribe and his offer of protection if
Lambert would disavow his support for the Union violated
Section 8(a)(1) of the Act. The bribe constituted an interro-
gation for money and a benefit to engage in spying on the
activities of the Union. The withdrawal of ‘‘protection’’ was
a callous threat that Lambert would be unprotected and con-
stituted a threat of some unspecified punishment. Peter’s stat-
ed knowledge of Lambert’s attendance at the meeting tends
to give Lambert the impression that his union and protected
activities were being surveilled.
Shortly after the October 26 union meeting, small union
posters (they may have been stickers; Brice described them
as being no more than 2 inches by 3 inches) began appearing
on the walls of Respondent’s facility. Their subject was two
people shaking hands and, underneath that, the name of the
International. On one day in late December, at least four
times, Peter told Brice that if he told him who was putting
up the posters, Peter would give him $150. Brice denied
knowledge, and Peter responded that, if someone told him
that it was Brice, Peter would fire Brice. Respondent argues
that Peter was merely attempting to police the plant, but a
bribe of $150 is a lot of detective work. It appears much
more like an attempt to discover the identity of the active
union adherents and fire them, and a threat to Brice, espe-
cially with the discharges and warnings since the Union
made its demand to represent the employees, than an attempt
to clean off stickers from the walls which had been affixed
2 months before. I find violations.2
789DOMSEY TRADING CORP.
recommended would be exactly the same. In these circumstances, I
will dismiss these allegations.
Henry was discharged on January 11, 1990. Although em-
ployed since March 7, 1988, almost 2 years, Henry had
never been given any discipline by Respondent until 4 days
after the union organizers appeared at the facility with the
letter containing Henry’s name as a member of the orga-
nizing committee. On December 5, Supervisor Fritho was
pushing Henry to do his work, although Henry’s work per-
formance was as fast as usual. Finally, Henry complained of
Fritho’s treatment, stating that both were Haitians and that he
should stop giving him problems and persecuting him. Fritho
replied that he was a supervisor and was only doing his job.
For this, Respondent gave Henry a written warning for in-
subordination to management. There is a prima facie case
that Respondent did so because of his union activities: Henry
had worked for 2 years without discipline, he was warned
only within days of the Union’s demand for recognition, and
he was working as fast as he ordinarily did. Respondent
failed to adduce evidence justifying its discipline. Thus, Re-
spondent did not meet its burden under Wright Line, supra,
of proving that it would have given him this warning not-
withstanding Henry’s union activities. Accordingly, I con-
clude that Respondent violated Section 8(a)(3) and (1) of the
Act.
On January 11 Henry was working on the line that he nor-
mally worked at. Before starting time, he arranged the barrels
and wheelers so that, as soon as the bell rang, he could start
his work. At about 10:25 a.m., Supervisor Juan Perez told
Henry to take a barrel and put it in Juan’s line. Henry com-
plained that he had already set up his line with barrels and
that Juan had removed the missing barrel. If the barrel had
to be replaced, Juan had to do it. Juan again directed Henry
to replace the barrel, but he refused. Then Jose Perez, Juan’s
brother, entered the discussion, directing Henry to put the
barrel in its proper place. Henry again refused, noting that
his brother, Juan, had removed it. Henry refused Jose’s re-
quest at least once more. Finally, a few minutes later, Jose
came back to where Henry was working, noting his surprise
that Henry was still working because Jose had punched him
out. Henry complained to Maxi, who said that he could not
intervene in the situation because both Juan and Jose were
‘‘bosses.’’ Henry asked, ‘‘Since when is Juan [h]is boss,’’
and Maxi said that Juan was a boss.
Henry’s testimony, which is the basis of findings of the
fact above, constitutes a lengthy admission that he repeatedly
refused to carry out the orders of Juan and Jose Perez. The
General Counsel’s case seems to be premised on the fact that
Henry did not know that Juan was his supervisor. Because
Juan testified that he had been a supervisor since March
1989, I find it strange that Henry would not have known.
But, even assuming that he did not, he also refused to com-
ply with the orders of Jose, whom he knew was a supervisor.
Employees are entitled to be union activists, and they are
protected by the Act for their union activity. However, the
Act does not insulate them when they are insubordinate.
Henry’s insubordination gave Respondent a legitimate reason
to discipline him.
The General Counsel contends that there was no basis to
discharge him, because Respondent’s rules provide for termi-
nation only after receipt of three warning letters. Respond-
ent’s warning notice has written near the top the words
‘‘WARNING LETTER,’’ followed by boxes to be marked
for the first, second, and third warnings, and explains; ‘‘Fur-
ther, it is to be noted that termination can follow after receipt
of three (3) warning letters.’’ Henry’s only other warning
was the one of December 5, 1989, which I have determined
was illegal. It may, therefore, not be relied upon. Nonethe-
less, the language merely states that termination ‘‘can’’ fol-
low after three warning notices, and not that there must be
three warning notices before an employee may be dis-
charged. The General Counsel did not prove that Respondent
had a firm practice of warning employees before firing them.
Rather, the record is clear that Respondent discharged imme-
diately anyone who stole property. Here, both Jose and Juan
credibly testified that Henry not only refused to comply with
the orders of both of them but also cursed at both of them.
Under these facts, supervisors do not have to wait for three
warnings before discharging an employee who tells them to
‘‘fuck’’ themselves. I will dismiss this allegation.
Charles was discharged on January 17, 1990. Employed
since the summer of 1988, he, like Henry, had never been
given a warning before his membership on the committee
was announced in the Union’s December 1, 1989 demand for
recognition. On December 5, 1989, he returned from a break
3 minutes late. Peter warned him, stating that he was sup-
posed to be an example to all the employees. Charles apolo-
gized. On the same day, Peter, who often would walk around
to make sure that the employees were doing their work,
began to stay longer where Charles worked; and, if he left,
he made sure to have a supervisor replace him. Furthermore,
when they left, they would always return, and leave and re-
turn, a pattern which was different from their supervision
earlier.
Sometime after that and before December 20, Peter told
Charles that he had been told by different workers that
Charles had said that, if employees were late for work or
were caught stealing, Peter could not fire them because the
Union would protect them. Charles denied that he said any
such thing. Peter then said that Charles should stop spreading
rumors about Respondent’s not having workmen’s compensa-
tion or he could be in a lot of trouble. On December 20,
Peter approached Charles and told him that he was a good
worker, but that he had to play by the rules. Peter then gave
Charles a warning for spreading false rumors that Respond-
ent did not have workmen’s compensation, informing em-
ployees that they were not allowed to utilize bathroom facili-
ties between 1 and 2 p.m., and intervening in management
and employee disputes without any authority to do so. The
warning cautioned that ‘‘further inciting’’ of Respondent’s
employees would result in his immediate termination.
Charles denied that he had spread any false rumors that
Respondent had no workmen’s compensation insurance; ad-
mitted that he had talked at a union meeting about the use
of bathrooms, but denied that he had made any false state-
ments (he said at a union meeting that he did not think it
was right that employees had to wait until 1 or 2 p.m. to use
the bathroom if they had to go before); and denied ever in-
tervening in disputes without authority.
On December 22, Peter gave Charles another warning, this
time for not having complied, after several oral warnings,
with requests that he not go into the Store during his breaks.
The warning reminded him that the factory and Store em-
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Campos testified that Charles was late two or three times a day
for 3 or 4 months.
4 Charles also testified that in mid-December Jose and Campos
asked employee Juana if the Union was paying her for saying or
doing the things that she was and whether she thought that the
Union could guarantee that she would have a better job. Then Jose
asked her if Charles had told her to do or say the things that she
was doing. I conclude that this questioning constitutes illegal interro-
gation under Sec. 8(a)(1) of the Act.
ployees had different break periods and directed that he no
longer to enter the Store ‘‘for the sole purpose of loitering
and disturbing the girls.’’ Charles denied that he had re-
ceived several verbal warnings. The only warning he re-
ceived was the one of December 5, and that had to do solely
with his late return to work. Charles had been going to the
Store without reprimand since he had first been employed.
On December 26, Charles was asked by Jose Perez when the
Union was going to call a strike. Charles replied that none
was planned, because the workers would come out losers and
Respondent would be a loser. Jose agreed that the workers
would come out losers and asked what he would do if he
lost his job. Charles had no answer.
On January 16, Jose complained to Charles that he had
heard that some employees had gone to the Board to press
false charges against him and asked who they were. Charles
denied any knowledge. Jose said that, if Charles named
them, he would talk to them and find out what wrong he had
done to them. Jose asked Charles if he thought that it was
right to file false charges. Charles said he did not know. The
next day, Campos also complained to Charles that he had
heard that certain employees has pressed false charges
against him and asked who they were. Charles replied that
he did not know; but, if they were members of the com-
mittee, that would be ‘‘ratting’’ on them.
Later that day, Maxi announced to Charles, ‘‘Sorry,
buddy, you’ve just been fired.’’ He gave Charles an envelope
with a check and a new warning letter, his fourth, this time
complaining of his poor production, constant talking, and
playing, stating that: ‘‘Leaves his work station whenever he
pleases. When told to do a job he says that the union is
going to get the supervisors.’’ Charles denied that he ever
had any problems with production. His job was to work in
the big box, putting clothing onto the conveyors; and he said
that he did not engage in talking and playing, nor did he
leave his work station whenever he pleased. The only occa-
sion that he recalled occurred on December 28, when he
briefly left to take off his sweater (it was hot) and put it in
his bag. When he returned, Peter was there and told him that
he was paid to work in the box and that he should return
there. Then Peter told Campos to keep an eye on Charles and
make sure that he stayed there.
Respondent had no problems with Charles’ work until his
membership on the union committee was announced. Before
December 1, he had received no warnings. After December
1, he could not stay out of trouble. On December 5, he was
given a written warning for returning to his job 3 minutes
late. That does not necessarily show that Respondent violated
the Act. Peter appears to be a stickler on employees being
at their work stations on time. On the other hand, Charles
testified that others had been late for work and had received
verbal warnings, not written ones. Respondent introduced no
evidence to refute this contention, and I conclude that
Charles was treated disparately from the other employees
only because he was a union activist.
Regarding the remainder of the warnings given to Charles
over the next 6 weeks, most are answered by Charles’ deni-
als that he did anything wrong or that he ever engaged in
the conduct asserted against him or, alternatively, that
Charles not only had engaged in certain conduct, such as
going to the Store, but also had engaged in that very conduct
for months. The latter is what is so troublesome and improb-
able about Respondent’s defense. It wants me to believe that
Charles had been engaging in this same conduct for months
and months,3 yet it was only after the union campaign began
and Charles was identified as a leader of that movement that
Respondent began to issue the warning letters, which it used
to sustain his termination.
I find it incredible that Charles was doing anything wrong,
discredit the witnesses called by Respondent, and credit the
denials of Charles. I specifically note, however, that Re-
spondent never proved that Charles had said anything about
workmen’s compensation. Its warning was based only on ru-
mors, and I credit Charles’ denial that he said anything about
it or even knew what it was. The warning of December 20
was inherently illegal, because it impinged on Charles’s right
to discuss working conditions with his fellow employees.
The General Counsel also contends that the warning is proof
of its allegation of illegal surveillance under Section 8(a)(1)
of the Act, because the only time that Charles discussed
working conditions was at a union meeting. Lacking any
credible rebuttal from Respondent, I agree. Furthermore, be-
ginning on December 5, 1989, Respondent engaged in closer
supervision of Charles, in violation of Section 8(a)(1) of the
Act. Then Respondent attempted to restrict Charles’s move-
ment in the facility by warning him not to go to the Store,
thus imposing on him more onerous and less desirable work-
ing conditions. I conclude that all the warnings and the dis-
charge resulted solely from the Charles’s union activities and
find that the issuance of the warnings and the discharge vio-
lated Section 8(a)(3) and (1) of the Act.
In addition, the questioning of Charles by two of his su-
pervisors about the identity of the person who filed unfair
labor practices and by Jose about when the strike would take
place violates Section 8(a)(1) of the Act.4 Asking about the
identity of persons who filed charges tends to discourage em-
ployees from filing charges. It is because of the proximity
of these interrogations and the discharge that the General
Counsel also contends that Charles was terminated for refus-
ing to reveal who had filed the unfair labor practice charges,
in violation of Section 8(a)(4) of the Act. I agree. Respond-
ent presented no compelling evidence to demonstrate why it
terminated Charles at the precise time that it did. Lacking
that evidence, I conclude that Respondent was angered by
Charles’ repeated refusals to inform on his fellow employees
and dismissed him for that reason.
Respondent’s actions were directed not only at the indi-
vidual leaders of the organizing effort but also at all the em-
ployees. The employees had in the past been given turkeys
at the Christmas season. Brice was told by a supervisor in
early December 1989 that Peter said that he would not give
out turkeys that year. Peter said that the employees had their
friends outside, meaning the Union, who would give them
turkeys. Other employees, including Charles, were told by
supervisors to ask the union president for their turkeys. Lam-
791DOMSEY TRADING CORP.
5 All dates hereafter refer to 1990, unless otherwise stated.
6 Most of the witnesses named Ann Dormeville, for whom there
was apparently much sympathy. Because she was not an alleged
discriminatee, there would have been no reason why the witnesses
might have been coached to testify about her discharge, an indication
that the witnesses were not testifying to influence the outcome of
this proceeding but because of a sincere desire to cure the discharges
that they had witnessed or heard about.
bert testified that the week before Christmas, he asked Peter
whether he was giving out turkeys this year. Peter replied
that there would be no turkeys. People who attended the
union meeting would get no turkeys, and no sick days, and
no holidays.
Respondent gave no turkeys to any of its employees in
1989. Respondent’s reason for not giving turkeys was, ac-
cording to its brief, ‘‘strictly economic.’’ The following con-
stitutes the entirety of Peter’s testimony: ‘‘In 1989 we just
felt that we were not going to spend the money on giving
out turkeys.’’ This is insufficient proof for the discontinuance
of a benefit which had been given for years and which the
Salms explained to their employees was being withheld be-
cause of their union activities. The Christmas turkey con-
stituted part of the employees’ wages, and its discontinuance
because of the employees’ union activities constitutes a vio-
lation of Section 8(a)(1) of the Act. Isla Verde Hotel Corp.
v. NLRB, 702 F.2d 268, 271 (1st Cir. 1983); Harowe Servo
Controls, Inc., 250 NLRB 958, 1039 (1980). I conclude that
Respondent violated Section 8(a)(1) of the Act by failing to
give out turkeys, as it did by threatening that there would be
no more sick days and holidays. Contrary to the complaint,
I do not conclude that Respondent threatened not to dis-
tribute turkeys. It merely failed to give them.
B. The Union Strikes; Respondent’s Picket Line
Misconduct
The employees struck Respondent on January 30, 1990.5
The cause of the strike was hotly contested. Respondent con-
tends that the strike was purely economic, to gain recognition
of the Union and ultimately to have the employees covered
under a collective-bargaining agreement which would grant
them better wages and other terms and conditions of employ-
ment. I have no question that economic gains and recognition
constituted some of the reasons for the strike. The Union at-
tempted to be designated by the employees as their collec-
tive-bargaining agent, distributing cards for that purpose. It
made a demand for recognition and, when Respondent re-
fused to grant recognition voluntarily, it filed a petition for
an election with the Board and participated in some represen-
tation hearings. When the strike commenced, a number of
employees prepared signs (such as, ‘‘No contract, no work’’)
that indicated that theirs was an economic strike. The Union
tried to ensure that those signs were not used, but the
thought that the strike was an economic strike certainly made
itself known in chants and slogans by the picketers (such as,
‘‘No contract, no work’’ and ‘‘What do we want? Union’’).
Furthermore, a number of witnesses candidly noted that they
were trying to be treated with dignity in the plant, so that
they would no longer be called by number rather than name
and so that they would not need a pass to go to the bath-
room.
However, the employees were also extremely agitated by
Respondent’s firing of employees, specifically Robinson,
Henry, Charles, and Ann Dormeville (her discharge is not the
subject of any allegation in this proceeding). The committee
had discussed the possibility of a strike at various meetings.
At a general meeting on January 23, attended by 100 or
more employees, many employees expressed their desire to
conduct a strike; but the union organizers attempted to dis-
suade them, insisting that they did not really know what the
consequences of a strike were. When mention was made
about the right to be reinstated to their jobs after an eco-
nomic strike, Brice asked why they were discussing an eco-
nomic strike. People were being fired, and those were unfair
labor practices. There ought be no talk of an economic strike.
When the employees were asked whether they wanted to
strike, they all stood up.
The committee met on January 25, and the members (Jean
Sigay Pierre was then a member) again insisted that there
ought to be a strike. They said that Respondent had fired
Robinson and Charles. Was the Union waiting for everybody
to be fired and no one left? The union leadership again urged
caution. Finally, on January 29, at a meeting of the com-
mittee with the top union leadership, the committee insisted
that it wanted to strike, and all the workers wanted to, too.
They were outraged that Respondent was firing all the com-
mittee members, specifically Robinson, Charles, and Henry;
and the fact that the Union was filing unfair labor practice
charges was doing no good because Respondent continued to
fire all the people that wanted to be members of the Union.
The union leadership consented to support a strike, and em-
ployees were telephoned to advise them that the strike would
begin the following morning. Brice, in particular, advised
those whom he called that the purpose of the strike was the
firing of the committee members.
Although one may argue that the repetition of the employ-
ees’ testimony gave some indication that their answers had
been rehearsed—indeed, some witnesses gave their reasons
for striking, namely, the firing of the union committee mem-
bers,6 even before being asked—I have no question that they
were sincerely aroused by Respondent’s harsh reaction to
their organizing activities. That the employees had other rea-
sons for their strike and that those reasons may have even
been more important than the unfair labor practice activity
that they were protesting does not convert the strike into an
economic one. Board law is firmly established that a strike
is an unfair labor practice strike if the employer’s unfair
labor practice had anything to do with causing the strike.
NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir.
1972), cert. denied 409 U.S. 850 (1972); General Drivers &
Helpers Local 662 v. NLRB, 302 F.2d 908, 911 (D.C. Cir.
1962), cert. denied 371 U.S. 827 (1962); Decker Coal Co.,
301 NLRB 729 (1991).
There is persuasive evidence that the employees were truly
seeking to protest the firing of their leaders, two of whose
discharges, I have found, violated the Act. The strike, there-
fore, was an unfair labor practice strike from its inception.
Respondent contends, however, that under Trident Seafoods
Corp., 244 NLRB 566 (1979), enfd. 642 F.2d 1148 (9th Cir.
1981), the strike reverted to an economic strike because it of-
fered Robinson and Henry reinstatement on February 12 and
May 8, 1990, respectively. Even if Trident stood for that
proposition, Respondent never offered reinstatement to
Charles, never offered to make Robinson whole for his
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Heurtelou stated that these events occurred on March 2, but
Blount said they happened on March 3, which he recalled was a Sat-
urday, which is what March 3 was. I credit Blount’s recollection.
losses, never disavowed the unlawful discharge, and never
provided the employees with any assurances against future
interference with their Section 7 rights. Gloversville Emboss-
ing Corp., 297 NLRB 182 (1989). The strike, therefore,
never changed from what it was in the beginning. Of course,
by the time that Respondent made its alleged offer to rein-
state Robinson, it had committed so many other unfair labor
practices by reason of its abhorrent conduct on the picket
line that the strike had undoubtedly continued and been pro-
longed by Respondent’s more recent illegal conduct.
For example, on February 12, in the presence of striking
employees, Peter spit on the automobile owned by organizer
Mercado. He asked her how many men did she ‘‘fuck’’ last
night and how much money she made. A short time later,
he repeated his obscenities and told her that, if she did not
have a lot of customers, he would provide some. On other
occasions in February and March, all in the presence of strik-
ing employees, he asked her why she was on the picket line
and told her that she could make much more money
‘‘fucking’’ than she could on the picket line. On March 3,7
in the morning, Peter spewed out his obscenities—‘‘Fuck
you, mother fucker. You asshole,’’ and ‘‘you stupid nig-
gers’’—at the strikers and Evens Heurtelou, a union rep-
resentative who was in their presence. During this tirade, one
of Respondent’s truckdrivers was backing a container out of
Respondent’s lot and directly across from the picket line. Al-
though it was coming dangerously close to Heurtelou’s
parked car and despite the protestations of Heurtelou that the
truck was going to hit the car, Peter purposely directed the
driver to back into the car, stating ‘‘Park it. Hit it. I don’t
care.’’ When the truck did in fact hit the car, Heurtelou said
to Peter that he had hit his car, and Peter said: ‘‘I don’t care.
I don’t give a shit.’’
Peter watched as the police prepared the accident report,
and he ‘‘gave the finger’’ to Heurtelou as he walked away.
All this took place in the presence of strikers. Respondent
contends that this incident simply did not happen in this way
and points to a number of errors in the testimony of the wit-
nesses for the General Counsel. However, the discrepancies
were not of such great moment that they took anything away
from Respondent’s deliberate attempt to slam its truck into
the car of a union organizer. I conclude that Respondent vio-
lated Section 8(a)(1) of the Act.
On the same day, one of Respondent’s security guards,
Michael Foley, according to Blount, struck union organizer
Michael Maldonado in the head; but both were arrested after
Peter accused Maldonado of possessing a knife, although the
police found no weapon. Respondent’s defense is that it sim-
ply did not do it, and it is more difficult to resolve this issue
because neither of the participants testified. There is no ques-
tion that there was a scuffle and that the two locked in a bear
hug. I was not persuaded, however, who started the alterca-
tion or whether either of the participants hit one another or
that any of the witnesses saw the event clearly. The alterca-
tion took place at least 20 feet away from the picket line,
and no employee testified about the fight. The evidence is
particularly insufficient and inconclusive to prove that the
event occurred in the presence and sight of any employee.
If the strikers could not see what happened and who was in-
volved in the alleged fight, the conduct could hardly have
any effect on their Union and protected activities. I will rec-
ommend that this allegation be dismissed.
Also early in March, on three or four occasions, very early
in the morning, probably before 7 a.m., Peter asked Mercado
why she was out on the picket line. She could have made
more money ‘‘fucking’’ last night. On March 12, a security
guard identified as George or ‘‘Big Nose’’ came to the pick-
et line carrying a dildo. Looking at the female pickets, and
moving the dildo back and forth in his hand, he said that this
is what all the ladies need and that he would ‘‘like to take
this and shove it up your ass.’’ Mercado turned away for a
few moments to ask another International representative
whether it was legal for Respondent to do this, and then
turned back to see Cliff, with the dildo in his hand, imitating
the guard’s lewd motions. On another day in March, Peter
came out of the gate in the afternoon and announced to the
strikers that ‘‘all you black boy[s] are lazy’’ and that it was
because of them that the country was ‘‘going to the bottom.’’
He suggested that they all go on welfare, where they belong.
He called them ‘‘stupid niggers’’ and gave them ‘‘the fin-
ger’’ and then pointed his middle finger towards his but-
tocks.
Later in March (but Blount thought that this occurred in
early March and another witness thought this could have
happened in May), two of Respondent’s security guards
brought out a table and placed it in front of the picket line,
in full view of perhaps 100 strikers, 90 percent of whom
were Haitians. They placed a black cloth over it, and on it
Peter and Cliff placed bunches of bananas, Peter later saying
that these bananas are for these ‘‘fucking monkeys,’’ and if
they were hungry they should eat it, clearly directing his re-
marks at the Haitians. In fact, Peter, looking at the strikers,
imitated a monkey, peeling a banana and eating it and
scratching himself. (Respondent claimed that the table with
the bananas remained in front of the pickets for only 2 or
3 minutes, while one of the Union’s witnesses claimed that
it stayed there for a long as 2 to 3 hours. I am convinced
that the table remained far longer than Respondent was will-
ing to admit.)
In April, at the end of the morning and in the presence
of 40–50 strikers, Peter came out and insulted employee
Yolande Heurtelou, who was singing with the other pick-
eters: ‘‘You old bitch. You haven’t gotten fucked yet. You
owe us some money. Only a dog would fuck you.’’ When
Heurtelou told Peter that he should be ashamed of himself,
Peter replied: ‘‘Fuck you, monkey.’’ Yolande was in tears;
Peter was smiling.
The sequence of the events of May 15 is not completely
clear, but there is no question that water came down on the
pickets from the roof of Respondent’s building. Respondent
contends that it contracted for a new air-conditioning com-
pressor and that it had to pump off water which had col-
lected on the roof. The General Counsel does not complain
about the fact that some of the pickets may have been sprin-
kled. Rather, Peter and Cliff transformed the repair job into
one of hatred and viciousness. Peter and Cliff approached the
picket line and Cliff told the strikers that Haitians were mon-
keys, that they should go back to Haiti, and that they had
AIDS. He and Peter either said or made gestures to indicate
that the pickets smelled bad, and Peter said that this (the
793DOMSEY TRADING CORP.
8 Peter’s reply to Pierre was more graphic. Denying that he owed
vacation pay, Peter said: ‘‘Fucking Sigay, fucking dummy, you
stink, you smell, go back to your country. Go to Evens [Heurtelou].
He’ll give you vacation pay.’’
spraying of the water) was the way that the Haitian ladies
could wash out the AIDS. Thus, Peter and Cliff converted
an otherwise innocent repair job into one which they con-
doned the spraying of the strikers because they needed to be
cleansed of their smells and disease. On the same day Peter
came to the picket line and, in the presence of 20 other strik-
ers, called employee and striker Nilda Matos a whore, said
that she was shameless and without dignity, and that she
would go with men for $5. Later that day, Peter said that the
Haitians were monkeys and they should go back to their
country.
Respondent’s conduct consisted of two types of activity.
The first was physical violence directed against the union
representatives. Such conduct, in the presence of employees,
constituted a violation of Section 8(a)(1) of the Act because
it tends to restrain employees from engaging in their pro-
tected and concerted activities under Section 7. Batavia
Nursing Inn, 275 NLRB 886 fn. 2 (1985). I conclude that
Respondent’s collision with Heurtelou’s car violated Section
8(a)(1) of the Act.
The second activity consisted of the racial, ethnic, sexual
slurs, and gross vulgarities directed against the employees
and the union representatives, in the presence of the employ-
ees. The Board affirmed in Romal Iron Works Corp., 285
NLRB 1178 (1978), the decision of the administrative law
judge in which he found that the slurs and vulgarities impact
‘‘directly on a person’s sensitivities and it is natural for one
to avoid being made the object thereof.’’ Id. at 1182; contra
Booth, Inc., 190 NLRB 675, 681–682 (1971), enfd. mem.
457 F.2d 511 (5th Cir. 1972). There is no question that Re-
spondent’s activities were motivated by the strike, activity
protected by Section 7 of the Act; and Respondent’s conduct
could make the employees believe that their strike and their
loyalty to the Union were not worth the effort in the face
of such degradation. The vulgarities against the union rep-
resentatives, occurring in the presence of the employees,
were equally offensive. All must have the tendency of dis-
couraging the employees from engaging in activities pro-
tected by Section 7 of the Act. I conclude that all the activity
set forth above violates Section 8(a)(1) of the Act. In so con-
cluding, I reject Peter’s denials and his defense that he called
Mercado a ‘‘whore’’ and said other things because she had
baited him with sexually derogatory comments. What he ac-
cused Mercado of having said may well have happened, but
her conduct does not exonerate him from violating the Act.
The final violations which occurred during the strike in-
volved Respondent’s nonpayment of vacation benefits which
it traditionally paid in the second week of July. The employ-
ees asked for their vacation on July 19, but Peter refused to
pay them, insisting that he would not pay for the vacations
of people who were out on the streets and that no employee
was paid vacation if not employed on the date when vacation
pay is paid. He told the strikers to get their vacation pay
from the Union.8 Respondent does not dispute the fact that
the strikers did not receive any paid vacation.
Respondent’s vacation policy, which was derived from an
expired collective-bargaining agreement with Respondent’s
assisted labor organization, was to pay an employee who
completed by June 1 a period of employment indicated in the
following schedule, the following vacation benefits:
Seniority as of June 1 Paid Vacation
6 months 2-1/2 days
11 months 5 days
18 months 7-1/2 days
23 months 10 days
5 years 15 days
Vacation benefits are earned and computed from the first
day of employment. Payment for ‘‘accrued’’ vacations on a
pro rata basis is made to all employees who leave the em-
ploy of Respondent, except employees who are discharged
for cause. The expired agreement provided that:
[E]mployees who do not work a full ‘‘vacation year’’
as a result of disability, layoff, leave on absence, etc.,
shall be entitled to vacation pay on a pro rata basis
only, based upon the percentage of time such employ-
ees actually worked during the ‘‘vacation year.’’ (EX-
AMPLE: An employee who is laid off for six (6)
months in a ‘‘vacation year,’’ shall be entitled to 1/2
of the vacation pay that such employee would normally
be entitled to had such employee worked the entire
‘‘vacation year’’).
In NLRB v. Great Dane Trailers, 388 U.S. 26 (1967), the
Supreme Court found that an employer violated Section
8(a)(3) of the Act by refusing to pay accrued vacation bene-
fits to striking employees, while it paid vacation pay to non-
strikers. The Board, in Texaco, Inc., 285 NLRB 241 (1987),
restated its test under Great Dane, as follows:
Under this test, the General Counsel bears the prima
facie burden of proving at least some adverse effect of
the benefit denial on employee rights. The General
Counsel can meet this burden by showing that (1) the
benefit was accrued and (2) the benefit was withheld on
the apparent basis of a strike.
Once the General Counsel makes a prima facie
showing of at least some adverse effect on employee
rights the burden under Great Dane then shifts to the
employer to come forward with proof of a legitimate
and substantial business justification for its cessation of
benefits. The employer may meet this burden by prov-
ing that a collective-bargaining representative has clear-
ly and unmistakably waived its employees’ statutory
right to be free of such discrimination or coercion.
Waiver will not be inferred, but must be explicit. If the
employer does not seek to prove waiver, it may still
contest the disable employee’s continued right to enti-
tlement to benefits by demonstrating reliance on a non-
discriminatory contract interpretation that is ‘‘reason-
able and . . . arguably correct,’’ and thus sufficient to
constitute a legitimate and substantial business justifica-
tion for its conduct. Moreover, as under Great Dane,
even if the employer proves business justification, the
Board may nevertheless find that the employer has
committed an unfair labor practice if the conduct is
demonstrated to be ‘‘inherently destructive’’ of impor-
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Despite Respondent’s instructions, the employees gave their ap-
plications to their union representatives, who returned 126 applica-
tions, in one package, to Respondent, by mail, on or before August
20.
tant employee rights or motivated by antiunion intent.
[Id. at 245–246; footnotes and citations omitted.]
The benefit is clearly accrued. Indeed, the expired agree-
ment referred to the vacation as ‘‘accrued.’’ Based on the pe-
riod of employment, the employee is entitled to a certain
amount of paid vacation. If an employee leaves Respondent’s
employ, the employee is nonetheless entitled to a pro rata
payment of vacation benefits. If the employee is laid off, the
employee is entitled to a pro rata payment. Similar results
occur if the employee is disabled or takes a leave of absence,
and these examples are followed by ‘‘etc.,’’ so that similar
cases of absence do not cause any loss of benefits. In other
words, the benefit was earned by the employees at the time
that they began their strike. The amount that was earned is
not in question. Contrary to the suggestion made in Respond-
ent’s brief, no one claims that the strikers are entitled to re-
ceive credit for the time that they were on strike; but they
are entitled to what was accrued at the time that they began
their strike.
The next issue is whether the benefits were withheld be-
cause the employees engaged in a strike. It is clear that they
were. Peter admitted that the benefits were paid only to em-
ployees who were on the payroll at the time the benefits
were due. The only reason that the strikers were not on the
payroll was because they were on the picket line. Therefore,
the benefits were withheld because the strike occurred. The
General Counsel has thus made a prima facie showing of a
violation.
Respondent contends that Peter never promised to pay ac-
crued vacation pay if employees abandoned the picket line
as alleged in Case 29–CA–15012, paragraph 8. I agree that
there is no proof in the record to sustain this allegation. But
I disagree with its contention that Peter denied that the em-
ployees ever asked him for vacation pay, a position which
I find is unworthy of belief. Other than this discredited
claim, Respondent has failed to show any legitimate and sub-
stantial business justification for its cessation of benefits. See
Bil-Mar Foods, 286 NLRB 786 (1987). I conclude that Re-
spondent violated Section 8(a)(3) and (1) of the Act. Knuth
Bros., Inc., 229 NLRB 1204 (1977), enfd. 584 F.2d 813 (7th
Cir. 1978).
C. The Union Ends its Strike; August 13
The Union decided to end the strike during the first full
week of August. On August 10 it wrote to Respondent un-
conditionally offering on behalf of all the employees on
strike to return to work and be reinstated to their positions.
It added: ‘‘To assist in reinstatement workers will be at your
facility on Monday August 13, 1990 at 8 a.m. ready to return
to work.’’ That morning approximately 132 employees gath-
ered at the gates of Respondent’s facility between 7 and 7:30
a.m. and waited to be called back to work. At about 8 a.m.
Peter caused the main gate of the facility to be closed and
had a side gate, which was narrower, opened. He set up a
table at that gate. Over a loudspeaker, Peter instructed all the
returning strikers to line up and enter through the side. It was
announced in English, Haitian-Creole, and Spanish, that they
would have to give their names and social security numbers,
and they would be given applications which had to be filled
in and mailed, but Respondent would not accept any bulk
mailing. The returning employees lined up and, when they
reached the table at which Peter was sitting, they were asked
to sign their names on a yellow pad and include their social
security numbers. Peter handed out a new form which had
been prepared on the letterhead of Domsey International, en-
titled ‘‘APPLICATION FOR REINSTATEMENT,’’ which he
and Cliff asked all employees to fill out ‘‘100 percent’’ and
return by registered mail, return receipt requested, to Re-
spondent.9 This sign-in procedure lasted at least until almost
noon.
On one side of the form were spaces for date, time, social
security number, employee identification (or badge) number,
name, address, home telephone number, last date of employ-
ment at Respondent, date hired, next of kin or friend, and
that person’s address and telephone number. The form ended
with the caution that ‘‘ALL INFORMATION MUST BE
COMPLETED 100% TO BE CONSIDERED FOR REIN-
STATEMENT.’’ On the other side of the form was a photo-
stat of an Immigration and Naturalization Service (‘‘INS’’)
form (Form I-9), which asked for the employee’s name, ad-
dress, date of birth, social security number, and an attestation
of citizenship or alien status.
When strikers make an unconditional offer to return to
work, the employer is obligated to make them an uncondi-
tional offer of reinstatement. Presto Casting Co. v. NLRB,
708 F.2d 495, 498–499 (9th Cir. 1983), cert. denied 464 U.S.
994 (1983), enfg. in relevant part 262 NLRB 346 (1982).
The general rule is that an employer, absent a legitimate
business reason, may not condition the reinstatement of any
employee on the filing of an application as a new employee.
Id.; Weather Tec Corp., 238 NLRB 1535 (1978), enfd. mem.
626 F.2d 868 (9th Cir. 1980). In Globe Molded Plastics Co.,
204 NLRB 1041 fn. 1 (1973), the Board stated; ‘‘Hiring
strikers who have not been replaced as new employees does
not constitute full reinstatement. The Laidlaw Corporation,
171 NLRB 1366 [(1968)], enfd. 414 F.2d 99 [(7th Cir.
1969)], cert. denied 397 U.S. 920.’’ Thus, the Board will not
permit an employer to require its returning strikers to sign
an employer-prepared request for reinstatement as a condi-
tion of reinstatement, Presto Casting Co., 262 NLRB 346,
360 (1982); or require that returning strikers take physical
examinations which are normally required only of new em-
ployees, Woodlawn Hospital, 233 NLRB 782, 794 (1977); or
require returning strikers to submit themselves to interviews,
Fugazy Continental Corp., 231 NLRB 1344, 1357 (1977),
enfd. mem. 603 F.2d 214 (2d Cir. 1979).
The Supreme Court stated, in NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 381 (1967), that: ‘‘The right to reinstate-
ment does not depend upon technicalities relating to applica-
tion.’’ The theory behind that statement is that striking em-
ployees remain employees. By treating them as if they are
new employees, an employer discriminates against them be-
cause it does not treat their employment relationship as con-
tinuing. Thus, just as an employer may not reinstate the strik-
ers and eliminate all their past employment or vacation cred-
it, the employer must do nothing to make the employees feel
that they are being treated in any way other than as return-
ing, and not new, employees. The employer may impose
795DOMSEY TRADING CORP.
10 Respondent contended at the hearing that the Union could not
have made an unconditional offer to return to work because it never
represented Respondent’s employees. Board authority is to the con-
trary. F. M. Homes, Inc., 235 NLRB 648, 649 fn. 4 (1978); Colonial
Haven Nursing Home, 218 NLRB 1007 (1975), modified 542 F.2d
691 (7th Cir. 1976); I. Posner, Inc., 133 NLRB 1567, 1570 (1961),
enfd. in relevant part 304 F.2d 773 (2d Cir.).
some new condition only when it can show that its action
was due to a legitimate and substantial business justification.
Respondent makes numerous arguments that its require-
ment that the strikers sign the applications was justified, but
none of them have merit. Respondent urges that its specially
devised application for reinstatement was evidence of its
‘‘good faith effort to return the strikers to work as quickly
and as effectively as possible. The applications sped up the
reinstatement process by providing [Respondent] with vital
payroll and personnel information in a concise and organized
arrangement. This was necessary due to the mere three days
that the [U]nion gave [Respondent] to prepare for the rein-
statement process and thus served a clear and legitimate busi-
ness purpose.’’
The underlying fallacy of this argument is the premise that
the Union dictated when employees were to be reinstated.
The Union did not dictate that Respondent had only 3 days
to reinstate its employees. It merely made arrangements for
returning strikers to appear at Respondent’s facility at 8 a.m.
on August 13, and it was then Respondent’s duty to offer the
strikers reinstatement, not necessarily that day, but pursuant
to Board law. Board law did not require employees to be
hired that day. Under Drug Package Co., 228 NLRB 108
(1977), modified 570 F.2d 1340 (8th Cir. 1978), on remand
241 NLRB 330 (1979), an employer is entitled to 5 days to
reinstate returning strikers because of the ‘‘administrative
difficulties entailed in reinstating large numbers of striking
employees on short notice. An employer requires at least
some time to effectuate the strikers’ orderly return and, if
necessary, to discharge the lawfully hired replacements.’’ Id.
at 113. Thus, the Union’s notice that it was ending its strike
does not justify Respondent’s requirement that the strikers
complete the application.
Respondent next contends that the applications were de-
signed to update Respondent’s personnel and payroll records
as to the strikers’ current addresses because it assumed that
many of the strikers had changed addresses and it planned
to reinstate the employees in small groups, thus requiring the
prompt mailing of reinstatement letters. Its contention fails
for two reasons. First, its brief contains much argument
which is based on no record evidence. There was no evi-
dence that its employees moved and no evidence of any fact
which would have led someone to assume that its employees
moved. Second, subject to the limitations of Drug Package,
supra, Respondent was required to reinstate its employees
immediately to their former positions. Respondent contends
that it was necessary to ‘‘assimilate’’ 200 strikers back into
the work force gradually and ‘‘prevent plant violence,’’ but
no one explained what made that necessary. All there is in
the record are blanket statements of Peter, which parrot Re-
spondent’s contention, and otherwise have no substance. In
these circumstances, Respondent had no legal right to rein-
state employees at its leisure, and in small groups. Gitano
Distribution Center, 294 NLRB 695 fn. 3 (1989).
Respondent argues that its application for reinstatement
was not an application for employment or new hire because
new employees are not required to fill out application forms.
If that is so, Respondent’s position is even more suspect be-
cause it has imposed upon strikers, returning employees, an
even greater burden than it imposes on persons whom it hires
off the street. Respondent also argues that returning strikers
were also required to fill out an I-9 immigration form before
they returned to work because the INS had criticized Re-
spondent in late 1989 or early 1990 for inaccurately filling
out those forms for a number of the employees. The dif-
ficulty with this argument is that Respondent attempted to
prove it through hearsay testimony, and I sustained objec-
tions to various questions, so no showing was made that this
contention was accurate.
Even with my rulings, it should have been easy enough for
Respondent to produce the inaccurately completed forms to
demonstrate its need for new ones to be prepared or to
produce correspondence from the INS directing that new
forms be filed for all its employees. In addition, Respondent
never attempted to prove that all the forms were inaccurately
filled out, but only the forms of some employees. When Re-
spondent was faced with the return of the strikers, it did not
limit its demand for new forms to the few who were affected
but asked all returning strikers to sign new forms, without
showing any necessity for them to do so. Respondent’s argu-
ment that all the strikers were required to fill out the forms
‘‘due to the difficulty in determining exactly which strikers
had to complete the new forms’’ is not supported by any
record evidence and is ridiculous. I summarily reject it.
Furthermore, because the INS had allegedly asked for this
information as long ago as late 1989, Respondent should
have taken care of this even before the strike. Certainly, be-
cause the Act provides that strikers remain employees, Re-
spondent could have attended to this alleged problem during
the strike. Finally, Respondent never showed or attempted to
show the necessity for obtaining the I-9 form when the strik-
ers returned. It could have waited until after the employees
had been reinstated, so that it could have avoided the appear-
ance that the completion of the form was linked to the em-
ployees’ possibility of reinstatement. All this discussion as-
sumes that Respondent really had a problem with INS. In
light of its failure of proof, I doubt it. In any event, I find
that Respondent had no legitimate business justification for
its requirement that the forms had to be completed in their
entirety.
By consequence, on August 13 Respondent illegally condi-
tioned the reinstatement of all its strikers on the completion
of the application form and the INS form. Thus, the strikers
who did not return to work did not receive any valid offer
and are still entitled to reinstatement. There was ‘‘no valid
offer to trigger a response.’’ Esterline Electronics Corp., 290
NLRB 834 (1988). However, that day and on succeeding
days, Respondent alleges that it offered various employees
reinstatement. In order to consider the legal ramifications of
what ensued, it is helpful to set forth some basic rules in-
volving the rights of unfair labor practice strikers to rein-
statement. Those strikers are entitled to their former jobs
upon their unconditional offer to return to work. Pecheur
Lozenge Co., 98 NLRB 496, 498 (1952), modified 209 F.2d
393 (2d Cir. 1953).10 It does not matter that the employer
has hired replacements to do what the strikers formerly did,
or that it transferred other employees to assume those posi-
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The picketing ended when the Union ended its strike. However,
employees and union organizers still congregated in the same area
that had been designated for picketing during the strike. For ease of
reference, although there was no picketing going on, the location
will be designated as the picket line.
12 In her investigatory affidavit, she did not mention her social se-
curity card, but it appears that Melendez, who never denied this tes-
timony, required the production of that card, as well as the green
card. A viewing of G.C. Exh. 64A supports this finding. Peter and
Cliff were dismayed that employees had not returned with their so-
cial security cards. That evidenced to them that the employees were
not interested in working that day, which equates with their under-
standing that the possession of the card was a necessary predicate
to reinstatement.
13 LaFleur was offered reinstatement to return on September 19,
1990, and returned that day.
tions; those employees must be discharged. Mastro Plastics
Corp. v. NLRB, 350 U.S. 270, 278 (1956); NLRB v. W. C.
McQuaide, Inc., 552 F.2d 519, 528–529 (3d Cir. 1977).
As stated above, the employer’s duty is to reinstate its
workers immediately to the employees’ former positions; but
Drug Package permits an employer 5 days to reinstate re-
turning strikers. The caveat to that rule is that, if the em-
ployer engages in unfair labor practices in the course of rein-
stating its workers, the 5-day grace period is lost, and back
pay will accrue starting with the day the employer received
the unconditional offer of reinstatement. McCormick-Shires
Millwork, 286 NLRB 754, 755–756 (1987). Furthermore,
there is an exception to the rule that employees must be re-
turned to the positions that they occupied before the strike.
That occurs when there are no such positions, such as when
the position has been eliminated or merged with another po-
sition in such a way that the returning employee is no longer
qualified for that position. No such claim has been made in
this proceeding.
A number of Respondent’s employees were not reinstated
into precisely the same positions that they occupied before
the strike. Respondent contends that its reinstatements were
legal, based on the following: Its employees are generally as-
signed to work as clothing sorters, clothing movers, or hi-lo
operators; and employees are assigned as needed to various
categories within these broad classifications. Peter or Maxi
decides where workers will be assigned each day. There is
frequent interchange between classifications, and jobs may be
changed daily or every other day.
I do not agree. The facts reveal that generally employees
reported to the same jobs day after day. There might have
been a change from time to time, but that was due to some-
one’s illness or vacation or the like. Generally, workers
stayed on the same job and, on the conveyor belt, in the
same position on the line. But what is involved here is not
Respondent’s repositioning of employees from the third to
the seventh person on the conveyor belt. What is evident
here is a deliberate effort to assign many of the returning
strikers to jobs that they did not hold before, and, regarding
the women, to positions at the front of the conveyor belt,
which required the use of more strength and energy because
of bulkier garments and the responsibility of pulling the
clothing onto the belt. Those assignments had another advan-
tage to Respondent: the employees would be next to Padgett,
Respondent’s goon, so that he could roughhouse them into
quitting or make them so uncomfortable that they would be
harassed and possibly be distracted and make errors.
The easiest cases to resolve involve those returning strik-
ers who were turned back at the gate on August 13 and not
even permitted to sign Peter’s yellow pad. Juan Ramon
Palacios returned from the strike and Peter asked what he
was doing there. Palacios replied that he was there to work,
and Peter asked him where he had worked before. When
Palacios replied truthfully that he had worked on the big
press, Peter disputed that, said that he had never seen him
before (despite the fact that Palacios’ name appears in Re-
spondent’s payroll records), refused to permit him to sign,
and told him to get off the line. He never heard from Re-
spondent again and did not return to work. However, in his
cross-examination at the hearing held on Friday, March 29,
1991, Respondent’s counsel asked Palacios a few perfunctory
questions and then offered him reinstatement for the fol-
lowing Monday, April 1.
When Nilda Matos appeared in front of Peter and signed
in, Peter merely said, ‘‘Forget it’’ and crossed her name off
the list. Respondent later offered reinstatement to Matos, and
she returned on September 19, 1990. Respondent delayed
both employees’ return to work past the five days allowed
by Drug Package. They are both entitled to backpay from
the date of the Union’s offer to the date when they were ac-
tually reinstated. However, most employees, like Robinson,
Francois, and Brice, merely received their applications, but
were not asked to work. Brice, for example, testified that
after that day he stood at the place where the picket line
was11 and almost daily, whenever Peter came out, asked
Peter for his job. Peter would reply: ‘‘Good job, good job,
stay outside.’’ Brice would say, ‘‘Union,’’ and Peter would
reply, ‘‘Welfare.’’
Respondent made offers of reinstatement to some employ-
ees on August 13, but those offers proved illusory when it
conditioned employment on its illegal demands that the em-
ployees produce their social security and green cards. Marie
Lousma was asked to work and agreed to do so. However,
when she entered the building, Roberto Melendez, Respond-
ent’s supervisor who was in charge of checking the employ-
ees’ working credentials, asked for her social security and
green card. She had not brought them and asked to work that
day without them. She pleaded that she had worked there for
8 years, and she would bring them tomorrow. Melendez told
her that she could not work and to emphasize it, ‘‘Fuck you,
get out of here.’’ Lousma came every day for the next 2
weeks, exhibiting both cards that had been requested, but
Peter ignored her.12
Murielle LaFleur’s story was little different. She accepted
reemployment and she was brought in the plant by Cliff,
even though she refused his request to remove her T-shirt
which had the International’s logo on it. (Cliff said that there
were some employees in the shop who did not like the Inter-
national; and, if she wore it at work, they would kill her.)
But she, too, had not brought her alien and social security
cards; and, despite that fact that she was first employed by
Respondent in October 1985 and promised to bring them the
next day, Melendez and Cliff refused to let her work that day
without them, and Cliff told her to leave.13 Mimose Lacroix
also was permitted to return, but Maxi said that, because she
had not brought her alien and social security cards, she could
not work. She was called back to work on September 7.
797DOMSEY TRADING CORP.
14 Washington Post, May 9, 1991, at A8, col. 4–5.
The employees had already written down on Peter’s yel-
low pad their social security numbers, and Respondent could
have checked their accuracy because the employees had
given their numbers when they were first employed. The re-
quirement for the employees to bring their green cards was
equally unnecessary. But for Respondent’s factually unsup-
ported claim that the INS required some new form to be
filled out, Respondent already had the information necessary
for the employment of the returning employees, even if they
were aliens. Under the relevant INS regulations employers
are not required to reverify an alien employee’s employment
eligibility where ‘‘[t]he employee is on strike or in a labor
dispute.’’ 8 C.F.R. § 274a.2(b)(1)(viii)(d) (1990). The result
of Respondent’s actions is that it did not treat the employees
as continuing employees and exacted an obligation that it
should not have. It treated them as new employees; and that,
the Supreme Court and the Board have held, may not be
done.
When Fritho Lapomarede finally reached the front of the
line, he, like the other returning strikers, was asked to fill out
the reinstatement form and return it to Respondent. Then,
Peter, accompanied by Cliff and David, told him not to fill
out the application. They needed him right away. Confused,
Lapomarade returned to Blount to ask what he was supposed
to do. Blount told him to go to work. Within no more than
2 minutes, he returned to the gate; but David told him that
he was no longer needed. Although he reported for work at
7 a.m. every day thereafter, Respondent made no offer of re-
instatement to him.
Others signed in and were offered employment, but they
declined for not wholly impressive reasons. Both Gerda Be-
noit and Marie Porsenna testified that they were so elated to
return to work that they did not have time to pack their
lunches, which they insisted they would need if they were
to work. Both remained at the picket line. Although their ex-
cuses are not particularly satisfying, I agree with Porsenna’s
testimony that, by the time that she was asked to return to
work, she had been standing in line on a hot, sunny day for
3 hours or more (Benoit testified that it was past 10:30 a.m.);
and it was understandable that Porsenna did not want to re-
turn to work that day. Both offered to return the following
day, but their offers were not accepted. Both returned to the
picket line daily for the next 2 weeks and asked for their
jobs; but Respondent never offered them reinstatement. In-
stead, on one occasion, Peter made what one newspaper has
euphemistically referred to as a ‘‘digital reply’’ to Benoit’s
appeal for a job.14 Daily during the next 2 weeks, in re-
sponse to the employees’ requests to get back their jobs, he
told Porsenna to ‘‘shut up’’ and brushed aside Benoit’s re-
quests, saying: ‘‘Shit.’’
Respondent sent letters to Lousma, Lapomarede, Benoit,
Porsenna, and the following additional 24 employees, who
were denied reinstatement because they did not have the req-
uisite documents or who were refused permission to begin
work the next day, stating that, because they had refused to
start work on August 13, Respondent had no further obliga-
tion to reinstate them:
Alourdes Choute Pierre Malebranche
Joseph Saintval Jean Robert Cyprien
Christian Delva Jean Olivier
Claire Camille Ghislaine Caristhene
Jean Midy Julmene Joseph
Jean Max Adolphe Gladys Bernard
Andreze Andral Marie Narcisse
Richard Simon Yollande Sainrastil
Violette Raymond Marie Gresseau
Rachelle Louissaint Josette McVaval
Ghislaine Joseph Marc Olyns Joseph
Leanna Joseph Cecile Charles
Respondent’s blanket termination of all these employees
(McVaval was not named as a discriminatee) violated Sec-
tion 8(a)(3) and (1) of the Act. Regarding those who were
turned aside for failing to produce the documents which Re-
spondent illegally required, the violation is obvious. As stat-
ed above, Respondent had no right to treat the returning
strikers as new employees and to require them to produce
documents to support their eligibility for reinstatement. Re-
garding those who refused to return to work immediately, the
Board in Esterline Electronics Corp., 290 NLRB 834 (1988),
quoted with approval the 10th Circuit in NLRB v. Betts Bak-
ing Co., 428 F.2d 156, 158 (1970):
Both employer and employee are bound by the require-
ment of good faith dealings with each other. And it
does not place an undue burden on the employee to re-
quire him to inform his employer of his intentions con-
cerning reinstatement within a reasonable time after no-
tice.
Esterline, supra, holds that ‘‘an order of reinstatement is
not rendered invalid simply because it affords the
discriminatee what may be regarded as an unreasonably short
period of time in which to consider it.’’ Id. at 835. The
whole purpose is to encourage the returning striker (in
Esterline, the discriminatee) ‘‘to make some response to the
employer, if only to ask for more time to consider the
offer.’’ Id. Here, the employees offered to return the fol-
lowing morning. That satisfies the Board’s ‘‘requirement of
good faith dealings,’’ and Respondent’s intransigent inflexi-
bility and refusal to permit the employees the right to return
at any moment other than when it made its offers on August
13 made its offers invalid. Thus, the employees’ backpay
never tolled, and Respondent’s discharge of the employees
violated Section 8(a)(3) and (1) of the Act. Gitano Distribu-
tion Center, 294 NLRB 695 (1989).
Respondent’s termination of them was particularly offen-
sive because its own actions caused such confusion that the
employees, most of whom did not speak English, had no rea-
sonable understanding of what they were required to do.
Peter clearly announced that he was giving out applications
for reinstatement which all employees had to fill out and re-
turn to Respondent by mail. That should have left the im-
pression in the minds of the returning strikers that, before
they would be considered for hire, their applications would
have to be reviewed by Respondent. No wonder, when Peter
told an employee to come to work, after he had been waiting
in line for several hours, that the employee left the line and
asked his union representative what to do. When he did, Re-
spondent seized upon that opportunity to fire him. When oth-
ers entered the plant, they were immediately asked for docu-
mentation; and when they did not have that, they were fired.
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 G.C. Exh. 64A, a 2-hour tape, shows that returning strikers were
still signing in at 11:45 a.m.
16 There is no proof that they were properly addressed, mailed, or
delivered, except that some employees testified that they received
them.
17 All the letters which follow required the employees to return at
8 a.m.
18 This letter was sent to Josette Philogene, Marie Camille, Marie
Rose Joseph, Marie S. J. Charles, Viergelie Anier, Marie C.
Casseus, Bardinal Brice, Imanitte Verrier, and Agare Victor.
19 The letter, dated August 20, directed the following to return on
August 24: Yvette Fleurimond, Idiamise Lovinski, Dieulenveux
Zama, Luis Ramos Frederick, Mulert Zama, Oscar Nunez, Ucemeze
Kernizan, Ronald Jean Baptiste, Solange Carasco, and Antoinette
When others, having stood in the sun for 2, 3, or 4 hours,15
refused to work that Monday, but offered to start work the
following morning, they were fired. (The record is silent as
to whether these employees had the necessary documentation
with them to be entitled to work, even if they entered the
plant that morning.)
Respondent’s offers were not serious and were not made
in good faith. Peter was mouthing these offers, but he did
not intend to reinstate the employees. Rather, he was trying
to make the strikers’ reinstatement as difficult as possible, as
shown by his insistence that the employees produce their so-
cial security cards, despite the fact that he required the social
security numbers to be included on the yellow pad when the
employees signed in. His bad faith continued.
D. After August 13; Written Offers of Reinstatement
After August 13 Respondent wrote a series of letters to 87
persons, only 84 of whom were strikers, offering them rein-
statement. These letters16 had the same infirmity as Respond-
ent’s oral requirement of August 13, to wit, most required
the production of documents which Respondent was not enti-
tled to demand. Thus, the letters were illegal offers of rein-
statement. In addition, the letters were not sent to all the
strikers, but each was sent to a group of employees, appar-
ently pursuant to Respondent’s unsupported legal theory that
it was entitled to reinstate unfair labor practice strikers piece-
meal, and at its own pace. The result of Respondent’s actions
is that it did not comply with Drug Package, supra, and de-
layed the reinstatement of the strikers. It is not entitled to the
5-day grace period.
Respondent concedes that its reinstatement of employees
was delayed after August 13 ‘‘for a number of days,’’ an un-
derstated admission that it failed to offer reinstatement to
more than half its employees until, at the earliest, the hearing
commenced. In any event, Respondent contends that stag-
gered offers of reinstatement are neither unlawful nor a sign
of bad faith, citing Southwestern Pipe, 179 NLRB 364
(1969), modified 444 F.2d 340 (5th Cir. 1971). That decision
deals with strikers who did not accept their employer’s offer
of reinstatement because a substantial number of the unfair
labor practice strikers were not reinstated. The decision holds
only that the employer is not subjected to continuing back-
pay liability for those employees who reject reinstatement in
favor of continuing the strike. There is no contention here,
and I do not so conclude, that returning strikers who were
offered legitimate reinstatement, without more, were entitled
to continue to receive their backpay if they, without legal
justification, rejected the offer. If they did reject the offer,
under Southwestern Pipe, they would continue to be treated
as unfair labor practice strikers, protesting the employer’s re-
fusal to reinstate all the rest of the strikers. That is not, how-
ever, what happened in this proceeding.
What did happen is that Respondent began to offer rein-
statement to strikers piecemeal, and this time, rather than
asking for the application or orally asking those who came
into the plant for their social security and green cards, Re-
spondent asked the strikers to bring documents with them. Its
first letter was dated August 15, directed strikers to return on
August 20 at 8 a.m.,17 with ‘‘1) Photo I.D. or Birth Certifi-
cate’’ and ‘‘2) Social Security Card.’’18 It will be recalled
that a number of employees were invited into Respondent’s
plant on August 13 but quickly told not to stay when they
could not produce their social security and green cards. That
I held to be illegal. For the same reasons, the request that
the strikers return with the above documents was illegal. By
asking for this material, Respondent treated these employees
not as continuing employees, but as new employees; and that
it may not do, unless it has a legitimate and substantial busi-
ness justification for doing so.
Respondent contends, first, that the documents were mere-
ly requested and not required. That is errant nonsense. The
letter directed the employees to appear at Respondent’s
premises and stated: ‘‘Please bring with you.’’ An employee
would have reasonably understood that as a command. Later
in its brief Respondent argues that all of the documents re-
quested by it of the employees ‘‘must have been in the pos-
session of the strikers because they needed them to obtain
employment at [Respondent] in the first place.’’ Little needs
to be said to show the ridiculousness of its position. If Re-
spondent had all these documents, it can hardly complain
when I find, as I do, that its requirement to produce this ma-
terial was intended not for its legitimate needs but only to
make the strikers’ reinstatement more difficult.
There is no record support for Respondent’s contention
that social security numbers were needed to locate personnel
files and payroll records to make sure that the employees
were put back to their former jobs at the same rate of pay.
Rather, many of the complaints are directed to Respondent’s
failure to assign returning strikers to their original positions;
and Respondent defended on the ground that it always
switched its employees from job to job. Thus, if Respondent
is to be believed, it had no need to establish what their
former jobs were, and its argument is disingenuous. Simi-
larly, its argument that it would have needed the social secu-
rity numbers and employee identification or badge numbers
of all the strikers in advance because it could not identify the
strikers by name or face is also unsupported. In any event,
Respondent had a slew of supervisors who could recognize
the employees whom they supervised. Coca-Cola Co. of
Memphis, 269 NLRB 1101 (1984), cited by Respondent, is
distinguishable, because the employer there made clear in a
written notice that employees were not being treated as new
employees and that the application form was intended only
to bring its records up to date. In addition, the strike there
lasted 14 months, more than twice as long as the strike in
this proceeding. Finally, Respondent never demonstrated its
need to bring its records up to date.
In four letters dated from August 20 to September 6,19 Re-
spondent offered reinstatement to the strikers to return on
799DOMSEY TRADING CORP.
Romain. By letter dated August 22, Respondent directed the fol-
lowing to return on August 28: Maximo Lacayo, Pierre A. Surin,
Gertha Camilus, Gertha Denaud, Rose Marlene St. Juste, Laboriano
Senteno, Lourdes Williams, Alta Meuze, Ruth Zama, and Francesca
Dormetus. The following were directed to return on September 7, in
Respondent’s letter of August 31: Marie Rose Armand, Adeline
Duvivier, Michelet Exavier, Marie N. Louis, Eduardo Roman, Caro-
lina Olivo, Nevuis Lambert, Marie A. Romain, Mimose Lacroix,
Pablo Guity, Margaret St. Felix, Eugenie Charles, Brigitte Charles,
Alma Louis, Jesula Massena, Anna Thomas, Marie Nicole Mathieu,
Reynaldo Pierluisse, and Marie Augustin. The final letter, dated Sep-
tember 6, directed the following employees to return on September
13: Romulo Ramirez, Hector Guity, Edaize Blanc, Andrea Andre,
Joseph Acces, Mezinette Desinor, Auguste Zama, Marie Jacques,
Eddy Rodrigue, and Clorina Joseph.
20 The second and third letters were designated by Respondent as
‘‘second recalls,’’ probably because Respondent had previously sent
offers of reinstatement to the same employees. Of course, these new
letters eliminated the demand to bring documents which had been re-
quested in the earlier letters, undoubtedly the result of the Union’s
unfair labor practices. The September 11 letter directed the following
employees to return to work on September 19: Williams Ortiz, The-
rese Jean, Juan Guerrero, Simion Castillo, Orlando Ramos, Pierre
Louis Ludovic, Alama Amine Diawara, Banilia Guerrier, Rafael
Gomez, Hubert Florent Boni, Vicente Suazo, Inovia Brutus, Marie
Josee Francois, Aparicia Diego, Voltaire Dorcius, Victor Velasquez,
Nilda Matos, Tomas Guevaro, Andrew Mack, Murielle LaFleur,
Louis P. Jean, Loficiane Raymond, Wilfred Virgile, Chano Reyes,
Marie L. Pierre, Marie Thelismond, Francisco Moreira, Jose DeLeon,
and Hilda Medina.
various dates from August 24 to September 13, with ‘‘1)
Photo I. D. or Birth Certificate/Green Card,’’ ‘‘2) Social Se-
curity Card,’’ and ‘‘3) Employment Authorization.’’ In addi-
tion to all of the arguments considered above, Respondent
contends that these letters were legal, because the only
change that they made was to inform employees that they
could bring their green cards if they did not have birth cer-
tificates or photo identifications. Respondent’s brief then
says: ‘‘The only reason for this change was that [Respond-
ent] became aware that [it] could accurately complete the I-
9 forms with these new documents if a striker did not have
a social security card accessible.’’ This is a curious argu-
ment, not simply because it is not supported by any record
evidence, but also because the argument had been made by
Respondent earlier that the social security cards were nec-
essary to expedite the reemployment of the employees. The
green card could hardly serve such a purpose, so Respond-
ent’s argument that it needed social security cards to expedite
the reinstatement of the employees must fail. Furthermore,
the employees who reported to Respondent’s premises on
August 13 were required to write down their social security
numbers. Respondent’s requirement thereafter for them to
bring their social security cards was a needless and illegit-
imate one, particularly because it already had those numbers
from the employee’s prior employment. The new requirement
constituted mere harassment.
Respondent contends that the other documents that it
asked its employees to produce had valid reasons. First, Re-
spondent says that it needed the photo identification ‘‘to as-
certain that the person reporting for work was definitely the
same worker that had previously worked at Domsey because
[Respondent] did not know all of the strikers by face.’’ The
sole example that it gives for this remarkable contention is
his failure to recognize Palacios, but Peter testified that he
knew all the employees, except Palacios; and there were as-
suredly many supervisors who could have identified employ-
ees whom they supervised. Many employees had worked
there for years. If it were really true that Respondent could
not identify employees, they could not have employed any-
body that first day and they could not have identified those
employees whom they accuse, discussed below, of picket
line misconduct. Furthermore, Respondent made no showing
that a birth certificate would serve to identify employees, if
that was its real purpose as an alternative to a photograph.
As stated above, Respondent also contends that the social se-
curity card was needed to pull the striker’s personnel file im-
mediately; but Peter took the social security numbers of the
132 strikers who showed up on the morning of August 13,
and employees were perfectly capable of giving him their
numbers when they reported for work. There was thus no ne-
cessity for the card itself.
Respondent’s final letters, dated September 11, 19, and
24,20 offering reinstatement on September 19, 24, and 28, re-
spectively, omitted the requirement that employees bring any
documents. They were requested only to bring their social
security numbers; and this request is not alleged as a viola-
tion of the Act. Of course, Respondent sent these letters long
after the 5 days permitted by Drug Package; so the employ-
ees, at least those who were actually reinstated without inci-
dent, are entitled to be made whole from the date of the
Union’s offer to the date when the employees actually re-
turned.
These letters did not necessarily result in the reinstatement
of all the employees to whom they were allegedly sent. (De-
spite the fact that many of them were allegedly sent by cer-
tified mail, Respondent produced no proof that they were re-
ceived by the employees. I credit Francois’ denial that she
ever received a letter offering her reinstatement.) Certain em-
ployees accepted Respondent’s offers; but they were badg-
ered, harassed, humiliated, assigned to harder jobs, and then
left, either on their own decision or because they were fired.
Other employees did not receive the letters in time for them
to return by the time set by Respondent, who proceeded to
tell the employees that they had missed their time and that
they were no longer needed.
Maximo Lacayo was not home when delivery of Respond-
ent’s letter was attempted, so he had to pick up the letter at
the post office. When he received his letter on August 29
and reported to Respondent’s facility that day, Peter said that
the letter had already expired (he was to have returned the
day before) and that he could not work there any more. He
reported to his fellow employees at the picket line what had
happened. He never heard from Respondent again. Luis
Ramos Frederick received his letter on August 30 at the post
office, because he too was not home to sign for it. Frederick
testified that his reporting time had already expired (I find
that he was requested to report on August 24), so he went
to Respondent’s plant the next day. Peter told him that he
was supposed to be there before and added only: ‘‘Adios,
Adios.’’ Frederick left the plant, went out to the picket line,
and reported to his fellow employees what had just happened
to him. He was never called back to work again.
When Marie Mondestin returned to her home in the early
evening of September 6, she found a notice from the post of-
fice that an attempt had been made to deliver to her a reg-
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Mondestin testified that Peter was making gestures at her (no
one asked what kind of gestures) and that the men were laughing.
Interestingly, they remained there, even though the bell had rung,
showing that, depending on who you were and who you favored, an
employee did not have to be on time all the time.
istered letter. She went to the post office the next day at 1
p.m. and found Respondent’s letter asking for her to return
that day at 8 a.m. Because she knew that it would be
unavailing for her to return after the workday had begun (she
had seen other workers try to come to work late, but they
had been turned away), she did not return that day; nor did
she return on Monday, September 10, because she had an-
other appointment. However, she did try to return shortly be-
fore 8 a.m. on September 11. She was surrounded by a num-
ber of men.21 Peter yelled: ‘‘What do you want here? What
do you want here?’’ Mondestin pulled out her letter. Peter
grabbed it, said, ‘‘September 7, 374 [her badge number].
September 7, 374.’’ Peter just stood there. Finally,
Mondestin said, ‘‘Thank you,’’ turned around, and walked
out.
Dieulenveux Zama picked up Respondent’s letter at the
post office on August 27, only to find Respondent’s letter
telling him to return on August 24. He went to the plant
where he saw Peter, who grabbed the letter, looked at it, and
told him that he was too late and he should leave. Rose Mar-
lene St. Juste also had to pick up her registered letter at the
post office, and she did so on Wednesday, August 29. Unfor-
tunately, her letter required her to be at Respondent’s facility
the day before. She went to Respondent’s plant anyway, but
when she arrived, Peter repeatedly said that she had returned
‘‘too late’’ and that she was supposed to return on Tuesday.
Respondent’s second attempt in September to reinstate St.
Juste also failed. Again, the letter was not delivered directly
to her, and she had to go to the post office the following
morning, September 28. There, at 7:30 a.m., she read her let-
ter, which required her to report by 8 a.m. that day. She took
a taxi and arrived outside the plant at about 8 a.m. She ex-
plained to Maxi that she had just received the letter. Maxi
said that it was already 8 a.m. and the boss told him not to
let in any person after then, so she left and stayed at the
picket line. At 1 p.m. St. Juste went into the plant to try once
again to get her job back. She asked Maxi to see Peter or
Cliff because her letter said that she was to work that day.
Maxi called Cliff on the telephone. Maxi told her that Cliff
wanted her number and she gave it to him. Maxi then re-
layed that Cliff had said: ‘‘Goodbye, goodbye, goodbye.’’ St.
Juste returned to the picket line and, in the presence of other
employees, told of what had happened to her.
Nevuis Lambert was not invited to return when he signed
the list on August 13, but he received a letter on September
12, asking him to return to work on September 7, 5 days be-
fore. Lambert reported on September 13, but Peter said that
he did not need him and that he should go to the Union.
Lambert said that Peter chased him out of the facility. When
Solange Carasco received her letter in August, which she
also had to pick up from the post office, the date for her re-
turn (August 24) had already passed and she did not even
make an attempt to report to work, knowing, from what she
had heard on the picket line, that Peter would not accept her
if she reported even a minute late. Respondent sent her an-
other letter, which she also obtained late because on the first
attempt to deliver it, she was not home to receive it. When
she got to the post office on September 24 and opened the
letter at 10:15 a.m., she found that she was supposed to re-
port that morning at 8 a.m. She took a chance, however, and
went to Respondent’s facility. Maxi asked why she came in
at this time, and she replied that she had just received the
letter. He gave her a job.
Under the Esterline test, an employer’s offer of reinstate-
ment will be treated as invalid ‘‘if the letter on its face
makes it clear that reinstatement is dependent on the employ-
ee’s returning on the specified date or if the letter otherwise
suggests that the offer will lapse if a decision on reinstate-
ment is not made by that date.’’ 290 NLRB at 835. Respond-
ent’s letters were not invalid; but Respondent’s conduct dem-
onstrated that the offers had been dependent on the employ-
ees’ acceptance of them by the dates set forth in the letters.
A.P.A. Warehouse, 302 NLRB 110 fn. 2 (1991). With certain
exceptions, all the employees returned within a reasonable
time and offered to return to work. Respondent relied on the
dates set forth in its letters and refused to permit them to re-
turn. I find that Respondent violated Section 8(a)(3) and (1)
of the Act by failing to reinstate those employees who re-
turned late. All of them had legitimate reasons for not report-
ing on time, and Respondent did not satisfy its requirement
of good-faith dealing.
Carasco did not make a response, and Respondent con-
tends that she had a duty to respond to Respondent, if only
to ask for more time to consider the offer. Esterline does not
deal with the issue of an offer of reinstatement received after
the report-back date. It could be reasonably argued that such
an offer is invalid on its face, assuming some evidence that
it was Respondent’s intent that the letter not arrive on time.
Here, however, no one saved the envelopes, so there is no
proof of when Respondent mailed its letters. But it is unnec-
essary to reach that issue here, because the employees who
returned late and were summarily dismissed by Peter re-
turned to the picket line and reported to the union representa-
tives and their fellow employees how they were treated.
When other employees received their letters from Respond-
ent too late to report timely, they were justified in assuming
that they would be treated in the same way and would not
be reinstated. Woodline Motor Freight, 278 NLRB 1141,
1142–1143 (1986), enfd. in relevant part 843 F.2d 285 (8th
Cir. 1988).
So, too, were employees who received letters from Re-
spondent offering them reinstatement but also had seen their
fellow employees who were harassed or terminated, returning
to the picket line. A number heard what had happened and,
when they later received Respondent’s letters offering them
to return to work, they declined to do so. Marie Rose Ar-
mand and Gertha Denaud testified that they were afraid of
being hurt (as Romain was, see below) or insulted, harassed,
or attacked (as Dormeville was, see below.) Armand said that
she had two children and it was not worth getting hit. In
other words, even if Respondent’s offers of reinstatement
were facially valid, its own conduct of turning back employ-
ees who reported even the same day, but a few hours late,
or by harassing and discharging employees who had been re-
instated earlier, was enough to undermine the validity of its
offers and make them invalid. The employees’ backpay is
not tolled by their refusal to report.
801DOMSEY TRADING CORP.
22 There was apparently some fear that the returning strikers would
cause the replacements to lose their jobs.
E. 12 Reinstated Employees Are Discharged
Arthur testified that Respondent usually did not like to fire
people. This record does not support that statement. Many of
its offers of reinstatement ended unhappily, with conduct
demonstrating that Respondent intended to use its power to
discourage and rid itself of even those whom it had rein-
stated. For example, Louis Antoine Dormeville was involved
in a serious accident and was rehabilitating from December
20, 1989, to March 20, 1990. When he had recovered suffi-
ciently to return to work, the strike had already started; and
he joined the strike. He returned with the other strikers on
August 13; but, when he signed in, Peter said that he thought
that Dormeville was ill. Dormeville replied that he had been,
but he would bring his doctor’s note the next morning show-
ing that he was able to return to work. The following morn-
ing Dormeville returned with his note and was required to
wait for Peter for 2 hours, who (in the presence of Cliff,
Maxi, and a security guard) looked at the note and then told
him to mail it so that he would receive it in the mail. Chang-
ing his mind as Dormeville was leaving the plant, Peter
called after him, took the note, and, with the others, accom-
panied Dormeville to a table where he was to work, which
was not his assignment before his accident. Peter called
Padgett and another black man to ‘‘help me with this mother
fucker over at the table.’’ Help, they did. While Dormeville
was attempting to work, they were harassing him with
‘‘mother-fucker,’’ ‘‘dummy,’’ and ‘‘hurry up.’’
Dormeville complained to Peter about his treatment and
the fact that he was not used to working at that job, which
was taking pants and putting them on a conveyor belt. Peter
reassigned him to his earlier job, the big press, saying:
‘‘[W]ork here, work here, mother fucker.’’ Dormeville said
to Peter that he was his boss and he respected him, and Peter
should respect Dormeville. That mutual respect was appar-
ently lacking, because the two black men followed
Dormeville, standing at the big press and shouting the same
obscenities, and adding that Dormeville needed a union. At
12:30 p.m. Dormeville left the plant and, before buying his
lunch, went out to the picket line. Evens Heurtelou and Brice
asked him how his job was going. Dormeville replied that
it was very hard. Peter had followed him and told him, ac-
cording to Dormeville, that he was fired, that he was not to
come back, and that he should: ‘‘Go to your fucking union.’’
He was not permitted entry back into the grounds of Re-
spondent.
For some reason, someone had a change of heart and at-
tempted to cover for Peter’s rashness. Respondent claims that
Peter questioned with Cliff, Dormeville’s legal right to go to
the picket line and talk to the union representatives. (Em-
ployees had always been allowed to leave the premises to
buy their lunch.) Peter testified that he told Dormeville to
‘‘stay here, stay here,’’ while he called his attorney; but
Peter also admitted that he said, ‘‘C’est fini,’’ which he
knew was French for ‘‘It is finished.’’ According to Re-
spondent’s defense, it was not until 2 p.m. that Cliff reached
the attorney, and then he went to the picket line to ask
Dormeville to return. Dormeville became alarmed at seeing
Cliff come out, looking for him; and Dormeville began to
run in the opposite direction, down the street, with Cliff call-
ing from far behind to come back to work. And there is a
question whether that offer was legitimate, because Respond-
ent had a videotape of this Mack Sennett scene. After view-
ing it, I am convinced that, although Cliff yelled ‘‘Antoine,’’
Dormerville was far down the street and appears not to have
heard it. Then, Cliff merely spoke loud enough for the
microphone of the recorder to pick up Cliff’s comment that
he was there to offer Dormerville ‘‘reinstatement,’’ a word
which would not have been used if Cliff and Peter had not
fired Dormeville, as they denied in their testimony. Thus, no
offer was extended by Respondent, and it certainly was never
received. Furthermore, Respondent did not intend it to be re-
ceived. Dormeville was at the picket line the very next day,
and no one came out to see him to offer him his job back.
Respondent did not turn to the mails, either. It sent no letter
to him. I find that no valid offer was ever made.
That leaves the state of this record with only a showing
of animus against Dormeville and his discharge for no reason
but for Peter’s passionate hatred of the Union and his appar-
ent belief that, once an employee was reinstated, the em-
ployee could no longer talk with the union leadership. Re-
spondent’s brief contends that it showed good faith by tele-
phoning its attorney in an attempt ‘‘to make a well-informed,
legally correct decision and avoid any possible misconduct.’’
This is utter nonsense. Who else, other than the Salms,
would discharge an employee for going out of the plant at
lunch hour, which he had a right to do, to confer with union
representatives; and, after being advised that he had made a
mistake, not take action to correct it? There was only one
reason that Respondent terminated Dormeville, and that was
his consultation with the union representatives. I conclude
that Respondent violated Section 8(a)(3) and (1) of the Act.
In addition, even though he was assigned to a different job
for only 15 or 30 minutes before he was reassigned to his
original job, Respondent obviously made this assignment in
order to harass him, as it did with so many others. It also
used Padgett and the other employee to give Dormeville
trouble, directing them to follow him and fostering their ob-
scene and insulting comments.
Respondent contends that it is not responsible for
Padgett’s conduct, casually describing him in Respondent’s
brief as ‘‘happy-go-lucky’’ and ‘‘an interesting person who
likes to talk and play a lot.’’ He is described elsewhere as
‘‘a funny person.’’ He is as happy-go-lucky as Attila the
Hun and Conan the Barbarian. He is not funny; he is ob-
scene and he is gross. A short (5 feet 5 inches) black man
with a shaved head, he weighs 200 pounds and is built like
a professional football guard. He can be ferocious looking,
and I can readily understand how the employees were men-
aced. From all the employees’ testimony, it is clear that Peter
used him as his hatchet man to harass employees and make
their lives as miserable as possible. Thus, he either sent
Padgett from time to time to locations where the returning
employees were working or assigned returning strikers to po-
sitions near him. Too many of them testified to being sub-
jected to his obscene conduct to make his presence merely
a coincidence. His ubiquitousness was purposeful.
I infer from all the conduct that Peter instructed him to
harass the employees and to be as forceful as he wanted, or
at least not to hold back his anger against the returning strik-
ers and the Union.22 And that is what happened, with Padgett
cursing the employees in the vilest language, making obscene
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 A photograph is in evidence which shows Peter’s arm around
Padgett, who is giving the finger to the person taking the picture.
24 Peter’s testimony about the reason that he dismissed Zama is
ambiguous, because it could be read that the insubordination he was
complaining about was Zama’s refusal to give him his badge num-
ber. I understood that Peter alleged that the insubordination was
Zama’s lateness in returning to his work station because of his in-
sistence on getting a drink. So did Respondent’s counsel in his brief.
25 Respondent contends that each job on the conveyor belt is of
equal difficulty. But Supervisor Jean Augustine, who testified to this,
also stated that the most he would assign an employee to the posi-
tion of feeding is 1 month. Although he said that the reason for
changing employees was for them to learn other positions, I find that
the reason was that the position was too difficult for the female em-
ployees to work for long periods of time.
gestures,23 and throwing garments at the employees, often
with Peter, and sometimes Cliff and even Arthur, standing by
and smiling and laughing, thus giving Respondent’s approval
to Padgett’s conduct. On other occasions, Peter and Padgett
joined in harassing the returning strikers. Peter never dis-
ciplined Padgett for these acts, and he and members of his
family condoned them. Thus, I find that Padgett had actual
authority. In addition, he had apparent authority because the
employees would reasonably believe that Padgett was reflect-
ing Respondent’s policy and speaking and acting for its man-
agement. Technodent Corp., 294 NLRB 924 (1989); Commu-
nity Cash Stores, 238 NLRB 265 (1978), enfd. mem. 603
F.2d 217 (4th Cir. 1979). I conclude that Padgett was Re-
spondent’s agent for all purposes and specifically hold Re-
spondent liable for his acts.
Respondent sent Dieulenveux Zama another letter offering
him reinstatement and he returned on September 28 to a new
job. Before the strike, Zama had been assigned to fill wheel-
ers and replace full wheelers with empty ones. Now, he was
assigned to unstrap and unravel big bales of clothing and
push the material toward the conveyer belt. Normally, this
job was assigned to two people, if the employees were not
that strong, and only one person if that person was strong.
Zama was the only one doing this; and, from what I ob-
served, he was of slight build, and he said that he was not
very strong. In addition to the more difficult job, Padgett
stood by his side, yelling at him to work faster and calling
him a ‘‘fucking union guy.’’
On October 2, Zama took his break at 10:30 a.m. and was
waiting in line to get a drink of water when the bell rung
for the employees to return to work. Peter told Zama to get
back to work but did not tell other employees, who had not
joined the strike, to return to their work stations. When Zama
protested that he was thirsty, Peter asked him what his num-
ber was. Zama said that his name was Zama. Peter put his
finger to Zama’s face, again asking him for his number.
Zama again and again said his name was Zama, but he fi-
nally gave his number to Maxi. Peter terminated Zama im-
mediately.
Although Peter had a somewhat different story, he never
denied that there were others at the water fountain at the
same time as Zama was there. Yet, of all the people, all of
whom were nonstrikers, he picked out only Zama, who was
a union adherent. Besides, when Peter asked for his number,
he stood up with one of the Union’s rallying cries against
Respondent’s reference to employees by their numbers, clear-
ly showing that Zama was a union supporter. So, Peter termi-
nated Zama for drinking water, but let the nonstrikers drink
without discipline of any sort. That constitutes disparate
treatment because Zama engaged in the strike and was a
Union supporter.24
In addition, although there is no question that Peter was
sensitive about workers returning to their work station on
time, Respondent’s general practice was to discipline em-
ployees for lateness by giving them warning letters. It prac-
ticed a progressive form of discipline, so that three warnings
for lateness were required in order to support the termination
of employees. By terminating Zama for his first lateness,
Peter violated Respondent’s own rules solely, I find, because
he engaged in protected and union activities. I conclude that
his discharge violated Section 8(a)(3) and (1) of the Act. I
also find that Respondent assigned Zama, as he did so many
others, a more difficult job when he returned from the strike.
That was its way of teaching the employees a lesson to dis-
courage them from engaging in their union and protected ac-
tivities and to make their lives difficult, in the hope that they
would quit. I conclude that Respondent’s assignment of
Zama, as well as of the other returning strikers, discussed
below, violated Section 8(a)(1) of the Act.
Respondent did not offer Marie Rose Joseph reinstatement
on August 13, but sent her a letter offering reinstatement for
August 20. Peter asked for her social security card and her
passport, both of which were requested in the letter; and
Peter also requested her to fill out an application, which she
refused because it was the same one she had filled out when
she had started work 1 year and 4 months before. (She is the
only one who testified that Respondent had an application for
for new employees.) Peter called for Marie Camille, another
returning striker, and assigned them jobs where they faced
each other on both sides of the conveyor belt, pulling down
coats, dresses, sheets, and blankets. Joseph stated that this
type of job, which involves much effort and is extremely
dirty work, is usually assigned to employees when they first
start on the job. Indeed, when she first started working for
Respondent in April 1989, that was her job for the first 2
months. The employees uniformly testified that there was a
difference in the difficulty of the work depending on where
one worked on the conveyer belt. In particular, it was more
difficult at the very front, when the clothes were first being
pushed or pulled onto the belt. The clothes were heavy and
they were hard to pull onto the belts. They were dirty, some-
times even containing feces or knives.25 Because, almost
without exception, all the returning workers who were as-
signed to the conveyor belt were assigned to this position,
I will merely refer to the position as ‘‘the conveyor belt.’’
In addition to the assignment, Respondent made sure to
make her life as difficult as possible. Peter replaced Camille
with Padgett, who spat on Joseph and cursed at her with
‘‘fuck you’’ and ‘‘mother fucker.’’ While he was cursing at
her, Peter came to her work table, stood next to her, and
smiled. At about 11 a.m. Peter called for her and advised
that she did not have permanent residence status. He said
that when she did, she could come back at any time. Joseph
had a valid work permit and was entitled to work in Re-
spondent’s facility, despite Peter’s remarks. In any event, she
was released, with a check for $9.23 in her hand.
The dispute here centers about what Peter examined and
whether he was entitled to see it anyway. Peter contended
that Joseph showed up to work with an expired employment
803DOMSEY TRADING CORP.
authorization card, whereas Joseph contended that all she
was requested to produce was her passport and her social se-
curity card. These were the documents that Respondent’s let-
ter offering her reemployment had asked her to produce.
How, then, Peter came to ask for something different is un-
clear. In Peter’s investigatory affidavit, he averred that he
was not sure whether Joseph had given him an ‘‘Employ-
ment Authorization Card’’ or whether he merely had a copy
in his personnel file. Peter testified that he asked her for an
up-to-date card, which Joseph said that she had at home. But
she testified that she never told him that, because he asked
her for her green card, which would demonstrate her perma-
nent resident status. She replied that she did not have one
and she would not be getting one until at least December.
In fact, as of the time of the hearing, she had not yet re-
ceived it.
The question, then, is whether Peter asked for a document
that Joseph says that she had at home, and insisted at the
trial was always kept current, and Joseph merely refused to
produce it, at the risk of losing her job; or whether she was
asked to produce another document, something that she did
not have and something that she still did not possess at the
time of the trial. I find the latter for two reasons. Joseph un-
derstood fully the difference between what Peter had asked
her to produce and what Peter was claiming at the hearing
that he asked to be produced. I believe that she would not
have mistaken the two documents. Furthermore, I find that
Joseph wanted to remain employed. She did not risk the loss
of her job based on the outcome of this proceeding. Even
after the charge was filed on her claim, Peter made no offer
for her to return to work on the basis that there had been
a misunderstanding of what he was requiring. I conclude,
therefore, that he discriminated against her by insisting upon
the production of a green card, which she had told him that
she did not have. That violated Section 8(a)(3) and (1) of the
Act. In addition, Padgett harassed her, as he did so many
others; and that conduct, as well as similar ugly harassment
by Padgett, discussed below, violated Section 8(a)(1) of the
Act.
Ronald Jean Baptiste returned on Friday, August 24 with
three other strikers, including Antoinette Romain and Mulert
Zama. After checking their green cards and social security
cards, Peter used the four employees as examples for the
other employees, gathering them together in the middle of
the plant and telling the other employees that the Union
could no longer take care of them and now they were return-
ing to Respondent to ask for their jobs back. Their return
was greeted with sounds of derision from the nonstriking
employees. Zama’s description of his return to the plant dif-
fered somewhat from Baptiste’s. He testified that Peter
brought all four employees into the middle of the factory,
that he pointed to Zama in particular and said to the employ-
ees, ‘‘Look, this is Zama, he wants to bring the union to
Domsey.’’ Peter mentioned the three other employees and
said: ‘‘[H]ere they come back to work today. No union, no
union.’’ That encouraged the employees to begin screaming,
‘‘No union, no union,’’ a slightly more graphic description
than Baptiste’s, but no less a violation of Section 8(a)(1) of
the Act, because the conduct of embarrassing these employ-
ees had a tendency to discourage them from engaging in pro-
tected activities. Furthermore, while this was going on,
Padgett came over and put his hand on Zama’s shoulder.
Zama asked him to remove his hand. Although there was no
further explanation of this event, it appears clear that Padgett
was attempting to intimidate Zama to discourage his union
activities, and I conclude that Respondent violated Section
8(a)(1) of the Act.
After this opening act, the second act began with Peter’s
assignment of them to their jobs. Baptiste, who before the
strike pushed wheelers, was assigned to the conveyor belt, a
job that he found more difficult. Peter brought Padgett to
come to the table across from him, where periodically, until
about the break for lunch, he prodded Baptiste to hurry up
and made gestures which upset Baptiste enough that he
thought that he was going to be attacked at any moment. In
addition, Padgett declared that the Union could not take care
of the strikers, who had to come to ‘‘us’’ for their jobs. Peter
would walk by from time to time, once making a loud noise,
and asking Baptiste whether he was okay. Often Peter
checked his work, a practice that Baptiste found unusual be-
cause Peter did not check his work before the strike.
Baptiste’s employment lasted for 1-1/2 days. On Monday
morning, as he was being videotaped, Peter came along and
grabbed Baptiste and escorted him to the front door. There,
Peter announced that he was told that Baptiste had a tape re-
corder that was recording everything that was taking place
inside the plant. Baptiste denied it. Peter said that he had
taken his friend, Mulert Zama, and found a tape recorder on
him and made him take it to the union organizer. He then
showed him a sign that was on the wall and said that, when
employees come to work, they are not to carry tape record-
ers. (Baptiste, however, was unable to read it. It was written
in English.)
Notwithstanding Cliff’s testimony that this rule had been
in existence for 16 years, the rule was first posted only after
August 13, the day the strikers returned to get their jobs
back. In a shop whose employees spoke little English and,
more particularly, did not read English, one might wonder
whether this sign was meant to be obeyed or to be used as
a convenient excuse to fire people. In any event, Baptiste de-
nied that he carried a recorder and showed Cliff, who was
leading him outside, that inside a little pouch bag that he car-
ried was his lunch, a container of milk and some food.
Baptiste even opened the container and drank the milk in
front of Cliff, who appeared to be persuaded that the em-
ployee did not carry a recorder and, with Maxi, asked him
to return to work. According to Baptiste, Peter was uncon-
vinced, did not believe that Baptiste did not have a tape re-
corder, and fired him.
Respondent contends that it did not fire Baptiste, but he
merely quit. All agree that Baptiste demonstrated that he was
not carrying a recorder with him and that Cliff asked him to
return to the shop. But Respondent’s story is most illogical.
First, as an aside, is it not curious that Baptiste should have
been escorted from the plant in the first place, when he had
no recorder and there was not even a hint that he had one?
But Respondent was anxious to get something on all of these
returning strikers, and grasped even at the ‘‘straw’’ of a milk
container in a pouch. What is important is that, although
Cliff and Peter testified about this event, Peter never denied
that he refused to let Baptiste return. Apparently, once Peter
made a decision based on what he thought was a fact, he
could not change his mind even if that fact proved to be un-
true.
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Equally important, Respondent admitted that it had video-
tapes of this event and never produced them, a certain indi-
cation that the tape would not have corroborated its wit-
nesses’ testimony. Finally, I would not have believed Re-
spondent’s witnesses even if they had all testified alike. It
makes no sense that Cliff and Peter would have ordered
Baptiste to leave the premises and that, when Baptiste was
found not to have a tape recorder, Baptiste should then have
quit. Baptiste came to work that morning, and there is no
suggestion that he had any motive to quit, other than Re-
spondent’s harassment of him, which would have supported
a finding of a constructive discharge in any event. There
being no reason which would motivate Baptiste to quit, I
find that he did not. Rather, I find that Peter discharged
Baptiste for no just reason. The only reasons inferable from
this record for the discharge are Baptiste’s union and pro-
tected activities. Thus, his discharge violated Section 8(a)(3)
and (1) of the Act. Padgett’s harassment and Respondent’s
assignment of him to a more difficult job also violated Sec-
tion 8(a)(1) of the Act.
Mulert Zama’s employment on his return was a little
longer than Baptiste’s, but hardly less eventful. First, he was
assigned with Baptiste to the conveyor belt, a job that was
different from sorting shoes, his job before the strike. Fur-
thermore, Peter signalled to a man who had been assigned
to a position across the table and then pointed to Zama, at
which point the man began screaming ‘‘no union’’ and ‘‘no
fucking union’’ for 10–12 minutes and throwing clothes at
Zama, several times hitting him.
On August 28, Cliff talked with Zama, while another per-
son was videotaping them (he had been taping Zama before
this conversation). Cliff said that he had been told that Zama
was carrying a tape recorder, and pointed to the new sign on
the wall, which Maxi translated, advising that no worker was
allowed to enter the shop with a tape recorder. Cliff asked
whether Zama had ever seen the sign, and Zama, who does
not read English anyway, said that he had not. Cliff offered
to hold on to the tape recorder, but Zama refused; so he told
Zama to give his tape recorder to someone on the picket line.
The next day, at about 3 p.m., Peter approached Zama and
asked how he was. When Zama answered that he was fine,
Peter said that, because he was fine, he did not need a union.
Shortly after, as Zama was leaving the plant to attend school,
Peter asked to see what was in his bag. Zama at first refused,
but then opened it. There was a tape recorder and a camera.
Peter immediately fired Zama. Zama always carried a tape
recorder before the strike. Zama testified that he had always
been searched as he left the plant before the strike, and no
one ever said anything to him about his tape recorder. The
General Counsel amended the complaint at the hearing to al-
lege that the adoption of the rule, after the commencement
of the strike, was intended to chill the protected and con-
certed activities of the employees.
I have made it plain that I think little of the credibility of
Respondent’s witnesses. The factual resolution of this dispute
results in major part on my distrust of Peter and Cliff, but
there was no understandable explanation from Respondent of
the reason for its precipitate posting of the notice in August.
After 16 years of having such a rule, it would have been
more meaningful to post it for the benefit of all the new re-
placement workers when the strike occurred, so that they
would be aware of the rule. One would have expected that
it would have been posted sometime after January 30. On the
other hand, Respondent had a substantial turnover of employ-
ees; and thus there was no reason not to inform its employ-
ees during the previous 16 years. That it was posted only
after the strike had been terminated and the strikers, those
who should have been aware of the rule from their earlier
employment, were beginning to return to work indicates that
some other purpose was behind the posting of the rule. Fur-
thermore, if Respondent wanted to ensure that its employees
would obey its rules, why would it have posted the rule in
English only?
More troubling is the fact that Zama had always carried
a tape recorder to work and had never been questioned be-
fore. No one denied that testimony. Therefore, if the rule had
not been enforced before the strike, it was either not en-
forced or there was no rule. My inclination is to find, and
I do so, that there was no rule. The imposition of a new rule
in response to union activity is illegal. Joe’s Plastics, 287
NLRB 210 (1987). Having found the rule invalid, then using
the rule as a basis for Zama’s discharge is enough to estab-
lish a prima facie case that the action is unlawful. Id. at 212.
Even if there had been a rule that was not enforced, my
conclusion that Zama was illegally discharged would not
change. The posting of the previously unenforced rule had no
legitimate purpose. Respondent tried to make up one, but
failed. Cliff testified that the reason for the rule was that Re-
spondent was an innovator in the use of conveyors to sort
old clothing. I find it impossible to fathom how the use of
a tape recorder could divulge this ‘‘innovation.’’ Perhaps rec-
ognizing that his answer was silly, he then changed that rea-
son to a fear that container numbers and destinations could
be recorded. I must admit my reaction that this reason was
no less concocted. No one prohibited the use of pencils and
papers, and the employees did not appear to be interested in
industrial sabotage. Rather, the rule was intended to prevent
the returning strikers from recording the harassment and the
obscenities that they were being subjected to, exactly one of
the reasons that Zama testified that he brought his recorder
that day. The rule’s purpose was solely to hide Respondent’s
unfair labor practices.
Strangely, while employees were being discharged for the
real or imagined possession of tape recorders, Respondent
was videotaping them in an attempt I believe, to harass them.
Indeed, Respondent videotaped this entire incident, but failed
to offer the tape in evidence, an indication that the tape does
not sustain its position. No matter whether the rule was new,
or whether the enforcement was new, Respondent’s discharge
of Zama, a union supporter, violated Section 8(a)(3) and (1)
of the Act. I further conclude that Respondent also violated
the Act by not assigning him to his former position, by as-
signing him to a more arduous job, and by subjecting him
to foul language and verbal abuse and by throwing objects
at him. I note that the complaint alleges that Padgett was the
person who did this, but Zama did not identify him. I sus-
pect, nonetheless, that it was; but I note that Peter directed
this individual to perform these acts, and I hold Respondent
responsible.
Antoinette Romain was not hired when she came to Re-
spondent’s premises on August 13, but soon thereafter she
received a letter asking her to return on August 24. She came
in at 8 a.m. and Peter asked for her social security and alien
cards. After reviewing these, he assigned her to a job that
805DOMSEY TRADING CORP.
26 She testified that she had to work at a ‘‘machine’’ where she
had to take old clothing, material, and fabric and place them in
boxes. I suspect that she, too, was working at the conveyor, espe-
cially because of Padgett’s presence.
27 Antoine Dormeville, according to Mathieu, witnessed Padgett’s
attack upon her; but he did not testify about this event. I consider
his lack of testimony damaging to her case; but, in weighing her tes-
timony against that of the witnesses who testified on behalf of Re-
spondent, I find her more credible. One thing is clear: there was a
cause of her hospitalization, and I do not believe that she made up
that cause.
was different from her old one of sorting cotton and poly-
ester pants. To her, it was dirtier and the clothing that she
had to handle was heavier.26 Equally important, she had to
work with three men, one of them Padgett, who were chant-
ing that she was no good and Padgett was yelling ‘‘mother
fucker’’ at her. In addition, they were handling the clothing
roughly and raising dust; and then two of them rolled some
of the big coats into bundles or balls, 3 to 4 feet in diameter,
and threw two at her, both striking her in the back as she
attempted to duck. Although she tried to avoid the attack by
hiding in a box, she was afraid and finally ran out of the fac-
tory, screaming for help from the Union. An ambulance was
called by the police who were in attendance, and she was
taken for emergency care at a hospital. She did not return
to work, being injured for a month; and, she testified, she
could not go back because she would not have been accepted
by Peter and Respondent, as evidenced by the fact, she ex-
plained, that Peter was always insulting people who favored
the Union.
Respondent did not terminate Romain, but its actions con-
stituted a constructive discharge of her. Respondent, because
of Romain’s protected and union activities, made her condi-
tions of work so difficult and unpleasant that she could not
reasonably continue to work. Crystal Princeton Refining Co.,
222 NLRB 1068 (1976), cited with approval in American
Licorice Co., 299 NLRB 145 (1990). Respondent’s goons not
only hospitalized her but also put her in fear for her life. She
hid in a box to avoid the attack and fled by running, scream-
ing, out of Respondent’s plant. I discredit all of Respondent’s
testimony that she was not attacked. Her hospital bill and her
prescription evidence her physical state. Respondent’s wit-
nesses recalled a woman running out of the factory, scream-
ing. One of Respondent’s witnesses recalled seeing Padgett
working in the exact location identified by Romain. She did
not have to suffer being attacked again. I conclude that she
was constructively discharged, in violation of Section 8(a)(3)
and (1) of the Act.
When Marie Nicole Mathieu returned to work on Sep-
tember 7 (she and seven other returning strikers were holding
the letters from Respondent offering them reinstatement and
were wearing T-shirts with the International logos on them),
Peter grabbed the envelope from her hand, commenting
‘‘fucking union,’’ and assigned her to work. He repeated that
epithet the several times that he passed by her work station
that day and he repeated it the following workday, Monday,
September 10. On Tuesday Mathieu had left for lunch and
was standing at the door to the factory. Peter approached,
told her that she smelled, and spat on her face. On Wednes-
day, when she went to the bathroom, Peter was outside bang-
ing on the door and yelling something that she could not un-
derstand. When she went to get a drink of water, Peter fol-
lowed her and told her: ‘‘Don’t touch, don’t touch.’’ On
Thursday, Peter was distributing chocolates; but when she
did not take any, he picked up a sock and threw it, hitting
her.
This pattern of degradation and humiliation continued. The
same day, Maxi asked her why she always wore the same
dress and said that Peter said that she smelled when she wore
her union T-shirt and that she should go home. Mathieu re-
plied that, if he was terminating her, he should give her a
letter stating his reasons. On Friday, September 14, as
Mathieu was leaving work and going to catch her bus, she
was attacked by Padgett, who pushed her onto a parked car
and kicked the bag that she was carrying, also bearing an
International logo. He punched her in the head. She was
bleeding from her nose and mouth and suffered injuries to
her back. All this occurred in the presence of other of Re-
spondent’s employees. Padgett got on the same bus as
Mathieu and threatened to push her into the street when she
was about to get off, but he never touched her. The fol-
lowing day, she filed a complaint against him with the po-
lice, which resulted in the later arrest of Padgett.
She never returned to Respondent. On Monday, September
17, before she went to the hospital, her husband called Re-
spondent and told Peter that she could not come to work that
day because of her injuries. Peter said, ‘‘No problem.’’
Mathieu was at Coney Island Hospital on Monday, where
she had X-rays taken and received an intravenous injection
all day. Her husband called once in the next two days, too,
to explain that his wife was still too ill to come to work.
However, by letter dated September 19, Respondent termi-
nated her, stating: ‘‘Left Friday 9/14/90—Never Returned—
No Show No Call—You are hereby terminated fr. yr. job.’’
Respondent’s position is quite simple: neither Mathieu nor
her husband called. If an employee does not call for three
days, the employee is terminated. Normally, I would find
that I did not believe Peter. Here, however, Peter never even
denied the fact that Mathieu and her husband called to advise
him of her medical condition. It is thus undisputed that she
called and that the termination notice is based on a fabrica-
tion. I conclude that Respondent violated Section 8(a)(3) and
(1) of the Act. In addition, I conclude that the various acts
of verbal and physical abuse, some of which were not con-
tradicted by Respondent, constitute violations of Section
8(a)(1) of the Act. The physical attack by Padgett also vio-
lated the Act. He was Respondent’s agent for inflicting fear
in the returning strikers in the plant, and it is not surprising
that his violent behavior should have extended outside of Re-
spondent’s facility. As he approached Mathieu, he mentioned
the Union’s name; and I conclude that his attack was well
within the scope of his actual authority.27 Batavia Nursing
Inn, 275 NLRB 886 fn. 2 (1985).
Margaret St. Felix also returned to work on September 7,
and Padgett was assigned to badger her, repeating several
times ‘‘fuck you’’ and ‘‘fucking union’’ and ‘‘fuck the
union’’ and prodding her to work faster with ‘‘Let’s go, let’s
go, let’s go.’’ Both Peter and Maxi were present some of the
times that this was happening and neither took any action to
stop it. Furthermore, when St. Felix complained to them,
they said nothing. While encouraging this mistreatment of a
returning striker, they also said several times ‘‘Domsey, yes;
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 The transcript inaccurately reflects that they were saying:
‘‘Union yes, Domsey no,’’ which makes no sense in the cir-
cumstances and is contrary to my notes. The Tr. p. 1340, L. 25, is
corrected accordingly.
union, no.’’28 Peter and someone else put up 3-foot wide
posters with the name of the International and a red line
across it; and Peter pointed at it, saying to St. Felix: ‘‘You
see, you see.’’
On October 23, St. Felix was terminated. On that day,
someone aimed a camera (which she described only as
‘‘big’’ and I assume was a videotape recorder) at her for 30
minutes while she was working (she had never been taped
before the strike), all in the presence of Peter. Padgett then
began to bother her even more. Padgett stood up on the table
where she was working and stood on her hand, proclaiming,
once again, ‘‘fuck you’’ and ‘‘fuck the union.’’ Peter, with-
out provocation, suddenly said that she could not work. He
gave no reasons, and St. Felix testified that she had been
given no warnings about her work.
St. Felix’s testimony was not the model of clarity, and I
could not sense how often these various events happened. In
addition, she appeared to forget what she was being asked
to testify about and had to be led on numerous occasions.
As a result, I was not overly impressed by her testimony. On
the other hand, the 8(a)(1) activity she recalled was the same
kind of harassment that so many other employees were sub-
jected to that it is highly probable that she was not misstating
what happened. I thus find that she was harassed and that
Padgett (whom I would refuse to believe under any cir-
cumstance) committed the acts as she testified, because she
complained to Maxi, a complaint that Maxi corroborated. Re-
spondent showed no reason why it had to videotape her for
30 minutes, and I find that this conduct was engaged in sole-
ly to harass and distract her. Therefore, I find all the 8(a)(1)
violations.
What gives me more cause for reflection is the ultimate
end of her employment, which, she alleges, did not result
from her conduct. Peter claimed that he had spoken to her
about her poor performance at least six or more times. Ar-
thur testified that in the fall he observed her working at a
very slow pace. He asked her to work faster and she cursed
him and said, ‘‘I’m working as fast as I can, if you don’t
like it do it yourself.’’ Her answer prompted him to tell Peter
to terminate her. The difficulty with Respondent’s case is
that St. Felix does not speak English; and, although she was
capable of understanding some words, and presumably
speaking some curse words, because she was able to narrate
Padgett’s filth, I have no reason to suspect that she uttered
the words that Arthur said that she did. In addition, Arthur
identified the person whom he complained about not by
name, because he did not know her, but by her position at
the conveyor belt. St. Felix was not working where he testi-
fied. I thus find that Arthur’s testimony was not credible and
conclude that her discharge violated Section 8(a)(3) and (1)
of the Act. Even if I had found that she was not working
so fast, I might well have been inclined to find that Respond-
ent’s harassment of her would cause anyone to slow down.
Nilda Matos, it will be recalled, was the employee who re-
turned with many other striking employees on August 13 and
signed in, but Peter crossed out her name. She was ultimately
recalled and returned on September 19 with Jose DeLeon and
Victor Velasquez. As soon as they entered Respondent’s fac-
tory, they encountered four people, Supervisor Augustine and
Padgett and two other black men, all of whom were wearing
signs with the International’s name on it, with a red diagonal
line across it. They shouted, ‘‘No union, no union, no
union’’ and said, ‘‘fucking union,’’ ‘‘union shit,’’ and even
‘‘Jesse Jackson shit.’’ (Jackson appeared at one of the
Union’s rallies at the picket line.) According to Velasquez,
one shouted that this was to be like the returning strikers’
first day at school. Another said that the returning employees
were ‘‘slaves’’ like them. Padgett declared that he was the
boss. All of the men were simulating masturbation. The
Salms were there; but, instead of stopping this disgusting dis-
play, they laughed and scoffed at the returning employees.
Matos was assigned to the head of the conveyor, a dif-
ferent position than before the strike. As if it were not dif-
ficult enough to be working on a new and more arduous job,
Peter stood where she was working, telling her that she had
to work, that she had had a 7-month vacation, and that in
this place you have to work and work a lot. He also prodded
her to do her work, calling to her attention that the belt was
empty and that she should continue to pull the clothes. Au-
gustine was there, too, telling her to work and telling her that
she came in without a union and she would leave without
a union. He told her to take off her smock (it had the name
of the International on it), but she refused. ‘‘Work, work,
work,’’ he told her. ‘‘If you don’t want to work, just go
home.’’
The conduct of Augustine and the three blacks continued,
with repeated declarations of ‘‘Domsey, yes; Union, no’’ and
‘‘No Union.’’ Her work was checked constantly, every
minute, then every 5 minutes, while other employees’ work
was not checked at all. Before the strike, the word ‘‘please’’
was used; but after, all she heard was ‘‘rush,’’ ‘‘rush,’’
‘‘work,’’ ‘‘work.’’ Augustine continued to hound and bait
Matos, by saying, ‘‘Fucking union’’ and grabbing his penis.
Augustine reassigned her from her job to one which was
more trying, removing big, heavy coats. She worked with an-
other woman, on a job normally worked by two men or, at
least, one man with one woman. By the third day of her re-
turn, September 21, with Augustine constantly reviewing her
work, and repeated statements that, if Matos did not want to
work, she could go home, Matos, who was 50 years old, re-
sponded that she would go home only if she got a letter to
take to the Department of Labor showing the reasons that she
was fired. Augustine punched her timecard. Matos called for
Maxi and told him that Augustine was firing her. Maxi said
that Augustine was a boss and that he could fire people. He
told her to come back on Monday and talk to Peter. She re-
turned on Monday, but Peter was not there. Cliff told her
that she should leave and that Respondent would send her a
letter.
Respondent contends that this was not at all the way
things happened. Augustine informed her that she had been
making mistakes, and she told him to ‘‘get out of here, I
don’t want to see your fucking face.’’ For this insubordina-
tion, he fired her. I do not find that Matos was incapable of
making such a reply. Matos used a lewd gesture, when Re-
spondent photographed her on the picket line, and that indi-
cates that she was not averse to using an obscenity. Her re-
peated misstatements that her gesture was not obscene did
nothing to help her credibility.
807DOMSEY TRADING CORP.
29 Peter’s response leads me to believe that Velasquez was as-
signed to this job for no reason other than to punish him for striking.
That he may, when on the picket line, have stated, ‘‘Just wait until
I come back, just wait,’’ had nothing to do with his reassignment.
So many others were reassigned that this constituted Respondent’s
pattern of dealing with the returning strikers, not with its treatment
of one employee because of one indefinite remark. If Respondent
really took this remark seriously, it would not have reinstated him.
30 Respondent’s brief compares this and similar gestures made by
Padgett as ‘‘a regular occurrence during baseball games as seen on
television.’’ To the contrary, I understood the motion to be an invita-
tion to DeLeon and others to engage in fellatio.
31 DeLeon testified that he was being filmed with a movie camera,
but I find that Respondent was using a videotape recorder.
On the other hand, much of the conduct that she testified
to was corroborated by Velasquez and DeLeon, discussed
below, and is typical of the harassment Respondent heaped
on the returning strikers. Even if it is true that Matos com-
plained about Augustine’s treatment by using an obscenity,
that was caused by his concerted effort to make it as uncom-
fortable as possible for her to remain on the job. Augustine
gave her trouble all day and had badgered her with the most
vulgar of obscenities the 2 preceding days. In these cir-
cumstances, she could not have been the aggressor. In any
event, if there were some credibility problems in Matos’ tes-
timony, Augustine’s was filled with problems because he in-
credibly denied his part and Peter’s part in harassing this em-
ployee. I therefore credit her narration and discredit his.
Thus, there was no legitimate or believable reason for her
discharge. Rather, she was discharged solely because she was
a union adherent. I conclude that Respondent discharged her
in violation of Section 8(a)(3) and (1) of the Act. I also con-
clude that Respondent did not assign her to the same job as
it did before, assigned her jobs that were more onerous, sub-
jected her to harassment and lewd and obscene and indecent
gestures, and supervised her work more closely, all in viola-
tion of Section 8(a)(1) of the Act. These violations were
common to Respondent’s plant. The only new one was
Augustine’s direction that she take off her smock with the
International’s insignia on it. That order interfered with her
right to proclaim her support for the Union, in violation of
Section 8(a)(1). Publishers Printing Co., 246 NLRB 206,
209 (1979), enfd. 650 F.2d 859 (6th Cir. 1981).
Velasquez, too, was assigned upon his return to the con-
veyor belt. This required greater strength and lifting and
bending, whereas his old job merely required the operation
of a machine, a hi-lo. That was particularly important be-
cause Velasquez still suffered from injuries incurred in a
very serious automobile accident, of which Respondent was
or should have been aware, because Velasquez had reported
it to his supervisor when he was first hired. He tried to ex-
plain to Peter how difficult his assignment was, but Peter
told him to ‘‘shut up.’’29 So, he continued to perform this
job for 5 hours but could no longer stand the pain. He told
Augustine that the work was too hard for him and that he
could not do it. He told Campos that he was leaving because
he could not do the job to which he had been assigned,
‘‘[b]ecause of this bad thing Peter did to me,’’ showing
Campos his scars, and he left.
Among the aftereffects of his accident, Velasquez had an
iron bar in his left leg, which he could bend only partially;
and he had another piece of metal in his right ankle. Except
for the first week of his employment, and even there the tes-
timony is ambiguous, he never did any physical work for Re-
spondent. Even when he was first employed as a wheeler for
5 days only, and then he was switched to the hi-lo, it appears
that he did not do lifting but had someone else do that. Re-
spondent contends that it never knew of Velasquez’s physical
disabilities. I simply do not believe that someone with as se-
rious scarring from and aftereffects of his accident would not
have told his supervisor about them. Even Campos agreed
that Velasquez loved to show off. I find that it is probable
that Respondent had knowledge of his condition.
Respondent was required to assign him to the same job as
he had before. Respondent put Velasquez on a job that it
should not have, that is, he was put in a different position
than he occupied before the strike. That in itself violated the
Act. The reinstatement was not legitimate. It was a nullity,
and in these circumstances he was entitled to walk off his
job and did not have to accept Respondent’s offer. Equally
important, Respondent assigned him to a job that he was un-
able to perform without extreme pain. It forced Velasquez to
leave his job. The only reason that Respondent engaged in
this activity was because Velasquez was a striker. Respond-
ent offered no other explanation. That constitutes a construc-
tive discharge in violation of Section 8(a)(3) and (1) of the
Act.
Jose DeLeon was also not reassigned to his old job. For
the first week, he was assigned to keeping the floor clean.
But in the second week he was assigned to open the bales,
and that required him to handle filthy and smelly clothing.
In particular, before the strike, he worked with another em-
ployee on the small press, making small bales weighing from
75 to 200 pounds. After he returned, he had to take apart big
bales of clothing of 700 to 800 pounds, and he had to do
it alone, on a job normally assigned to two employees. Fur-
thermore, on his old job, he had the opportunity to work
overtime, but he could not work overtime on his new jobs.
That day and every day that DeLeon worked, Peter came
over to his work place and shouted at him that there would
be no union, and no contract, and that the union would never
‘‘enter’’ the Company. Padgett continued ‘‘to do this gesture
like holding his penis and pointing at’’ DeLeon.30 DeLeon
was watched. One day during the week of October 15, a man
videotaped31 DeLeon for one hour, while Peter watched and
laughed and encouraged the man to continue taping. DeLeon
could recall no instance prior to the strike when Respondent
taped employees while they were working.
Respondent contends in its brief that its videotaping of
employees was legal, because it was to be used as evidence
in this proceeding and was done on the advice of counsel
and was not shown to be related to union activity. The prob-
lem with Respondent’s position is that no one testified about
the reason that the videotaping took place. Indeed, when I
asked during the hearing whether Respondent had the video-
tape of one of the episodes, Respondent’s counsel rep-
resented that he did not think that there was any tape in the
recorder. Even without that statement, it is clear that the tap-
ing (or, at least, aiming of the recorder) for 1 hour was done
only to harass a known supporter of the Union.
Hilton Mobile Homes, 155 NLRB 873 (1965), enfd. in part
387 F.2d 7 (8th Cir. 1967), cited by Respondent, is readily
distinguishable because the picture taking was unaccom-
panied by any threats or actual reprisals. It is not so easy to
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
distinguish M. P. Building Corp., 165 NLRB 829 (1967),
enfd. 411 F.2d 567 (5th Cir. 1969), except to note that it has
never been cited in a Board decision for the proposition that
it is legal to indiscriminately take pictures of employees, as
long as they are not, at the moment that pictures are being
taken, engaged in union or concerted activities. There, the
trial examiner found that ‘‘the evidence does not prepon-
derate in favor of a showing that it was connected with the
union activity which was in process.’’ Id. at 840. Here, the
conduct was accompanied with all sorts of the vilest
antiunion behavior, and there is a hint that the recorder had
no videotape in it. I deem this inherently threatening and in-
timidating. For that reason, it violates Section 8(a)(1) of the
Act.
On Friday, October 19, DeLeon asked Peter for time off
to attend a temporary custody hearing that had been sched-
uled for the following Monday and then time to travel to
New Orleans to pick up his daughter. He showed Peter the
court papers. Peter told him that would be no problem and
he should take his time. DeLeon promised that, if he could
be back by the following Friday, he would return that day;
but he did not. DeLeon returned on Monday, October 29,
and found that his timecard was not in the rack where it nor-
mally was. He asked his supervisor, Augustine, about it, and
Augustine claimed that he knew nothing and that DeLeon
would have to talk to Peter. When DeLeon met with Peter,
Peter said that DeLeon was fired because he had never given
him permission to leave. DeLeon persisted in an attempt to
save his job. He showed Peter his bus ticket for New Orle-
ans, but Peter pushed it away, unconcerned and unimpressed.
Augustine testified that DeLeon asked him for only 1 or
2 days off. Augustine said that he could give 1 day; but, if
DeLeon he needed more, he would have to go to Peter. That
DeLeon went to Peter demonstrates that DeLeon was looking
for more than 1 day. DeLeon testified very openly about his
troubles in obtaining custody of his daughter; and, if he had
asked for only one day to go to court, as Peter admitted,
there would have been no reason for him to go to Peter. Au-
gustine could have given him that day. I find it probable that
he would not have omitted asking for sufficient time to take
care of his domestic problems.
As probable as this is, Peter’s behavior is typically out-
rageous. He permitted his employee to take care of his legal
affairs, without losing his job, and then turned around and
denied that permission was sought. I find that DeLeon had
permission and that Peter’s discharge of him on the ground
that he had no permission violated Section 8(a)(3) and (1) of
the Act. I also conclude that Peter’s statement that the Union
would never get into Respondent and there would be no con-
tract violated Section 8(a)(1) of the Act. They indicate that
supporting the Union was a futile act and thus tend to dis-
courage employees from engaging in protected and union ac-
tivities. I also conclude that Respondent violated Section
8(a)(1) of the Act by failing to reinstate DeLeon to his
former position, by assigning him to a job that was more ar-
duous than his prior position, and by harassing him by mak-
ing insulting and obscene gestures and by videotaping him
as he was working.
Francisco Moreira returned to Respondent on or about
September 19 and instead of being assigned to weigh the
clothing, which he had done before, he was assigned to work
at a position on the conveyor belt, a different job which he
claimed was more difficult. Within a week, he was reas-
signed to the job of removing bundles of clothing at the be-
ginning of the line and pushing the clothing onto the con-
veyor belt. Moreira’s description of his duties were not per-
suasive that his former job was less difficult than the job that
he was assigned to on his return. Nonetheless, the General
Counsel met his burden of showing that the assignment was
different, and Respondent offered no reason that it did not
assign Moreira to his former position. Therefore, I conclude
that Respondent violated Section 8(a)(1) of the Act by not
reinstating him to his proper position.
Moreira stayed on his job for another month; but on No-
vember 2, as he was leaving, a routine search of his bag re-
sulted in a security guard’s discovery of two T-shirts in his
bag. Peter was called over, and, according to Moreira, Peter
then told Moreira to take them. Contrary to the normal rule,
testified to by Cliff, that an employee is subject to immediate
discharge for stealing, Peter did not fire him. Instead,
Moreira returned to work the next day. As he was punching
in his timecard, Peter took the card away and announced that
there was no more work for him. Moreira averred that he did
not steal the T-shirts and had no idea how they got into his
bag.
Moreira’s is a rather incredible story, and it might not
have taken much to persuade me to dismiss this allegation.
But Peter engaged in some incredible conduct, and his hatred
for the Union made him unpredictable. When Respondent
moved to dismiss this allegation at the close of the General
Counsel’s case, I denied the motion, noting that the em-
ployee had not made the strongest of cases, but had made
a prima facie case under Wright Line. Respondent’s case was
even weaker. It offered nothing in its defense, not even a
statement by Peter that the reason for the discharge was that
Moreira stole property.
I am thus left with a finding that the General Counsel pre-
sented a prima facie case: Moreira engaged in union activi-
ties by striking, he was reinstated to a different job, and he
was fired by Peter, who said nothing to him about why he
was firing him. Because employees are normally fired imme-
diately for stealing, and Moreira was not fired until the next
morning, I infer that there must have been some other reason
for his discharge. The inference that I make is that Peter
fired him for his union and protected activities. Respondent
was silent in defense. I conclude the Respondent violated
Section 8(a)(3) and (1) of the Act.
The foregoing completes the General Counsel’s case in-
volving the reinstatement of the strikers, except for eight
who, Respondent claims, committed picket line misconduct
and were denied reinstatement. The Board adopted the fol-
lowing objective test for determining whether an employer
may legally deny reinstatement because of striker misconduct
in Clear Pine Mouldings, 268 NLRB 1044, 1046 (1983),
enfd. mem. 765 F.2d 148 (9th Cir. 1985): ‘‘whether the mis-
conduct is such that, under the circumstances existing, it may
reasonably tend to coerce or intimidate employees in the ex-
ercise of rights protected under the Act.’’
I recognize that I have generally discredited the Salms in
this decision, but Cliff gave a vivid and credible account of
the blockade of a bus which Respondent hired to pick up re-
placement workers to transport to the plant. On February 1,
eight union organizers and employees, including Joseph Aris
and Jean Sigay Pierre, formed a human chain to prevent
809DOMSEY TRADING CORP.
some replacement employees from gaining access to the bus.
In the process, they pushed and shoved Cliff and the others
back towards the bus. The two employees generally denied
the incident, and the one identified union representative
never testified. I found Pierre not very believable; in various
respects not germane to this incident, his testimony did not
conform to his investigatory affidavit. Aris was much worse
a witness. He was combative and argumentative, and I had
the impression that his denials were absolutely untrue. I,
therefore, credit Cliff. In Clear Pine, the Board stated that
employees have no right ‘‘to block access to the employer’s
premises.’’ Id. at 1047. Here, Pierre and Aris blocked access
to employees who were attempting to board a bus to go to
Respondent’s plant. Other than the location of the ‘‘access,’’
I see little distinction between this situation and what the
Board has clearly said entitles an employer to deny reinstate-
ment to a striker.
However, from all the violent conduct discussed above,
and from my conclusion below that even Peter threw a rock
or a brick, injuring one of the union representatives, it ap-
pears that this strike more resembled a battlefield. And Peter
condoned it. Not only did he condone it. He fostered vio-
lence. He encouraged his truckdriver to back into a parked
car. He encouraged Padgett’s brutality, which led to two
middle-aged helpless women going to the hospital. Obvi-
ously, Peter did not care about his own behavior, and he has
done nothing about the behavior of his two employees, be-
cause he caused them to act as they have. In all these cir-
cumstances, the singling out of Aris and Pierre for some
pushing on the first day of the strike, while encouraging and
not punishing more violent acts which resulted in physical
injury, demonstrates that Respondent’s denial of reinstate-
ment was not made in good faith and constitutes disparate
treatment. Champ Corp., 291 NLRB 803, 806–807 (1988),
enfd. 933 F.2d 688 (9th Cir. 1990).
Although I have not credited the testimony of Respond-
ent’s witnesses regarding much of the other alleged picket
line conduct, I also rely on Champ Corp. in denying Re-
spondent’s right to deny them reinstatement. Thus, I believe
Bonny when he testified that he did not push Maxi, whose
testimony I have not generally credited. Security guard Soule
testified that Yolande Heurtelou blocked the entrance to Re-
spondent’s store on many occasions, and Cliff testified that
she blocked the entrance with a banner, and had to be re-
moved by the police on two occasions. Heurtelou was overly
exuberant and danced every day of the strike. She denied
that she carried a banner; she said that she wore a picket
sign. Furthermore, she testified that she always remained be-
hind the picket line. Although Respondent took 600 hours of
videotapes, it produced nothing to support this allegation, so
I discredit Cliff. Even so, I would not be surprised if she
went in front of the picket line on occasion. On the other
hand, she is a middle-aged woman who harmed no one; and
if she was guilty of two excesses, I am persuaded that she
blocked nothing but at most created some very minor inter-
ference, which was not of the level of misconduct intended
to be encompassed by Clear Pine, supra.
Although not discussed in Respondent’s brief, Soule also
testified that Brice spat at security guard John Tubior, who
did not testify. Brice denied that he committed the conduct
as alleged, and I credit him, not only because he was cred-
ible and Soule was not but also because Respondent des-
perately sought to rid itself of all the returning strikers, and
it does not shock me to see its witnesses continue to make
up stories to achieve its goals. Furthermore, Respondent
twice offered Brice reinstatement and only belatedly with-
drew its offers on the ground that they were extended by in-
advertence. I do not credit that account and find that Re-
spondent never intended to rely on any of Brice’s conduct
to deny him reinstatement. Finally, it is questionable whether
spitting, which one could do by inadvertence even when talk-
ing, qualifies as the type of misconduct which would bar a
striker from reinstatement under Clear Pine. The description
of what allegedly happened was so vague that it cannot be
said with assurance, even if I found that it happened, that it
was coercive or intimidating. Respondent contends that Juana
Peralta tried to drag Peter behind the picket line. Peralta is
retarded, and I did not find that she was at all capable of
harming people. She seemed to me to be very sweet; and she
testified that she was merely trying to greet Peter one day
and he pushed her and she cried. Peter is much more likely
to push a retarded woman than she was likely to try to hurt
Peter.
On February 2, a dispute arose regarding Respondent’s
payment of wages to the employees for the period preceding
the strike. The Union suggested that Respondent deliver the
payroll to the police, but Cliff refused. He rejected a later
request from a union representative who was standing by a
patrol car. He said that the payroll would be mailed. What
followed was that Caesar Amador and Roberto Morales and
an unidentified female started to walk, backwards, onto Re-
spondent’s property, waving to the pickets to follow them to
get their pay checks. They were headed off by a police car,
25 feet from the employee entrance, and escorted back to the
street. This conduct was not trifling, because the employees
obviously stepped on Respondent’s property, where they
were not wanted; but they were still in the employees’ park-
ing lot far removed from any of Respondent’s then employ-
ees. Their conduct does not rise to the level required by
Clear Pine.
Finally, Respondent wants to bar Brice, Bonny, Pierre, and
Aris because they engaged in mid-May in antisemitic behav-
ior, which started with a union organizer’s complaint to Cliff
that he should not have gotten away from Hitler and that Hit-
ler should have killed ‘‘every fuckin’ Jew.’’ Subsequently,
Brice, Bonny, and Pierre began chanting: ‘‘Hitler, kill you
fuckin’ Jews.’’ A few minutes later, the chant was changed
to ‘‘Hitler, Hitler, Hitler.’’ Aris joined in this chant, but not
the earlier one. Sadly, although Respondent produced no vid-
eotape of these incidents, I suspect that this behavior oc-
curred; and I note that charges against the Union for much
picket line misconduct were filed, a complaint issued, and
the Union entered into a formal settlement agreeing never to
engage in certain conduct again, conduct which, the counsel
for the General Counsel represented, included this particu-
larly vivid and horrible event. There is nothing that really ex-
cuses it, but Brice, a Haitian immigrant and the only em-
ployee who testified about these incidents, testified that he
really did not know who Hitler was, and the chants do not
make that much sense; so I am not exactly sure how malevo-
lent the strikers intended to be.
Furthermore, recognizing how extremely ugly this incident
was, it should not be viewed in a vacuum for the purpose
of determining whether this is the type of misconduct suffi-
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Old Town Shoe Co., 91 NLRB 240, 273 (1950); Chalk Metal
Co., 197 NLRB 1133, 1148 (1972); and NLRB v. National Furniture
Mfg. Co., 315 F.2d 280 (7th Cir. 1963), relied on by Respondent,
are inapplicable because they preceded Clear Pine.
cient to justify Respondent’s denial of reinstatement. Re-
spondent’s conduct was not angelic. It slandered the pickets,
saying that Haitians were monkeys and should return to their
country, that they had AIDS, that they smelled bad, and that
their women engaged in sex for money. There were enough
racial and ethnic attacks from Respondent’s side of the picket
line that I can at least understand the pickets’ anger, although
I find their words contemptible. But these words, although
harmful, do not constitute a threat of harm and, in these cir-
cumstances, do not rise to the level of prohibiting these em-
ployees from returning. In A.P.A. Warehouses, 291 NLRB
627 fn. 2 (1988), the employer’s owner, Moskowitz, told
Diaz, an unfair labor practice striker, that he would never
work again for Moskowitz, to which Diaz answered that
Moskowitz was ‘‘like Hitler.’’ The Board concluded under
Clear Pine, supra, that Diaz’s statement did not reasonably
tend to coerce or intimidate. Calliope Designs, 297 NLRB
510 (1989).32 Finally, Respondent did not police its own em-
ployees, no less its managers, for their degradation of the
pickets. Respondent’s denial of reinstatement to these four
pickets, while continuing to employ Padgett, constitutes dis-
parate treatment under Champ Corp., supra. I conclude that
these employees should have been reinstated.
In addition to all these issues involving reinstatement,
there were a number of other allegations of the commission
of unfair labor practices. At about 6:30 or 7 a.m. on Decem-
ber 5 organizer Mercado was standing next to her car which
she had parked next to the entrance to Respondent’s Store.
Rocks were thrown over the fence which surrounded Re-
spondent’s property. One missile, probably a brick, thrown
by Peter, hit her car and fractured, and part of it caromed,
hitting her on the side of her head. She suffers from head-
aches and bloodshot eyes and hears sounds in her ears. As
she testified, I noticed that her eyes were red, a result, she
explained, of being hit. Respondent denied this testimony in
full. Peter said that he was holed up in his office; Cliff, Ar-
thur, a secretary, and a cleaning woman confirmed it, and
even a maintenance mechanic testified the stand to say that
he was on a roof and pickets threw a rock at him, so he
threw a rock back. However, he denied that the rock hit
Mercado or her car, so no one has admitted culpability.
I do not believe Respondent’s witnesses, because I ob-
served Mercado and she appeared to be shaken by this inci-
dent and to be still suffering from it, both physically and
emotionally. Her testimony was corroborated by Tigus and
DeLeon, who saw the event while they were standing on the
picket line. They had no reason to lie, and Peter had much
reason, including a date in criminal court, to try to defend
himself. Peter often does not understand the consequences of
his actions. He was capable of having thrown the brick. I
conclude that Respondent violated Section 8(a)(1) of the Act.
Peter held a meeting of the employees on December 28,
1990, at which he thanked everyone who had come to work
during the strike and did not allow Respondent’s factory to
close. Everyone who came to work during the strike would
find a ticket in their pay envelopes, which entitled them to
a turkey and ham. The employees who found no ticket would
know why. Those who participated in the strike found no
tickets. Respondent claims that the turkeys were given as a
‘‘token of appreciation’’ and that turkeys were not given to
employees who ‘‘interfered with the productivity of [Re-
spondent’s] business.’’ Cliff admitted that in 1990 there was
no way that Respondent was going to reward the strikers
with turkeys. As shown above, it was Respondent’s practice
to hand out turkeys at Christmas.
The Board has held that granting benefits to its employees
who work during the strike, while withholding benefits from
whose who strike, violates Section 8(a)(1) of the Act because
of its impact on the right of employees to engage in pro-
tected and concerted activities. Furthermore, it violates Sec-
tion 8(a)(3) of the Act because the disparate treatment may
discourage the employees from further activity in such pro-
tected activity and in union membership. I conclude that Re-
spondent violated Section 8(a)(3) and (1) of the Act. Desert
Inn Country Club, 282 NLRB 667, 668 (1987).
One of the stranger allegations in this proceeding involved
employee Maximo Martinez. After the General Counsel had
rested on his case-in-chief, the hearing recessed for 2 weeks
to permit Respondent time to prepare its defense. When the
hearing resumed on April 15, 1991, the General Counsel
moved to reopen his case to present a new allegation, which
essentially involved Respondent’s tampering with Martinez.
Martinez was clearly frightened when he testified and ap-
peared reluctant to testify. After prodding by the counsel for
the General Counsel, he stated that his sister-in-law had re-
ceived a telephone call threatening that, if he were to testify,
the caller would kill his family. The inference that I was to
draw was that this call came from someone connected to Re-
spondent, but the sister-in-law’s telephone number was new
and Martinez never gave that number to Respondent and had
no explanation for someone from Respondent being able to
telephone her.
At any rate, Martinez did not testify clearly and could not
recall all of what he had been called to testify about. He stat-
ed that he received an offer from Respondent to return to
work on April 1, 1991, and at the end of that work day,
Peter offered him a raise from $5.15 to $12 per hour and
also offered him money (he stated in his investigatory affi-
davit that he was offered a bribe of $8000). However, he did
not know what service he was to perform or what service he
had to perform in order to earn it. (According to his affi-
davit, Peter offered him the money and the raise if he would
testify against the Union and would speak to his coworkers
and persuade them to testify, also.)
Martinez was not shown the copy of the affidavit and thus
had no opportunity to have his memory refreshed, nor did he
affirm the truth of the affidavit. There is thus no testimonial
evidence to find a bribe, and Martinez’s testimony did noth-
ing to persuade me of what Peter offered and the reason he
offered it. No one revealed what information Martinez could
possibly supply at this hearing which might be meaningful
to Respondent. The discussion might just as well have been
about Martinez’ overtime rate or some other matter. Mar-
tinez’ testimony was unsatisfactory, and I discredit it. Ac-
cordingly, I conclude that the allegation of the raise increase
and bribe should be dismissed.
However, Peter apparently thought that Martinez’ testi-
mony was more damaging than I have just found. He fired
Martinez the morning after he testified, April 16. It is true
811DOMSEY TRADING CORP.
that Peter insisted that he did not fire the employee, but he
lied once again. Martinez testified that he went into the plant
that morning and did not find his timecard where it was nor-
mally maintained in the rack, at the place where his em-
ployee number was written. That meant to him that he had
been discharged. Other employees testified that the removal
of a timecard from its normal place meant that Respondent
had fired the employee. Peter testified, however, that when
an employee misses a day, his or her card is put in the lower
right hand corner of the rack (Peter never testified, in his
first appearance as a witness, that this was his policy; but
Martinez’ discharge was not then at issue). No one else testi-
fied that there was ever such a practice, and I do not believe
it. If he put the card there, it was only to hide it from Mar-
tinez and create this defense.
As a result of not finding his card, Martinez left the plant.
Four days later, Mercado made a phone call to Peter and an-
nounced that she was Martinez’ wife, that she had a family
to support, and asked Peter to give him his job back. Peter
replied that he was sorry, but Martinez had lost his job. Peter
testified that the reason he would not have reinstated Mar-
tinez was that he was not looking out for Peter’s interests.
When asked to explain that comment, Peter stated that Mar-
tinez had made some very serious allegations against him in
his testimony in this proceeding. I infer from this admission
that Peter had the same concerns when he removed Martinez’
timecard from its normal place on the rack. Accordingly, I
find that Peter’s discharge of Martinez was the direct result
of his testimony and conclude that Respondent violated Sec-
tion 8(a)(4) of the Act.
The unfair labor practices found herein, occurring in con-
nection with Respondent’s business, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. The cease-and-desist provi-
sions are not unusual, except for the provision dealing with
Respondent’s vulgar conduct and heinous verbal abuse of the
strikers, which is intended to be limited in scope, so as not
to forbid the use of vulgarities and curse words which does
not constitute an unfair labor practice. M. K. Morse Co., 302
NLRB 924 (1991).
I will grant the ordinary relief for the illegal discharges.
I shall order Respondent to offer immediate reinstatement,
unless it has already done so, to Giles Robinson, James An-
thony Charles, Louis Antoine Dormeville, Dieulenveux
Zama, Marie Rose Joseph, Ronald Jean Baptiste, Mulert
Zama, Antoinette Romain, Marie Nicole Mathieu, Margaret
St. Felix, Nilda Matos, Victor Velasquez, Jose DeLeon, Fran-
cisco Moreira, and Maximo Martinez to their former posi-
tions, without prejudice to their seniority or to other rights
and privileges previously enjoyed or, if their former jobs no
longer exist, to substantially equivalent positions, and make
them whole for any loss of wages and other benefits they
may have suffered by reason of Respondent’s discrimination
against them, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Because Re-
spondent appears to have little conception of its responsibil-
ities under the Act, I hasten to add that, in reinstating these
employees, it must displace, if necessary, any newly hired or
reassigned replacement employees.
In connection with these employees and all other employ-
ees who were disciplined as a result of violations which I
have found in this decision, I shall recommend that Respond-
ent rescind or remove from its employees’ personnel files all
notices of discharge, warnings, or other discipline and refrain
from relying on any such discipline as a justification for fur-
ther discipline. Furthermore, Robinson was deprived of his
benefit of purchasing clothing at a discount, and I shall order
that Respondent pay him back for each purchase he made on
and after October 27, 1990, $1 for each of the first 50
pounds of clothing he purchased, with interest computed as
prescribed above. DeLeon was deprived of overtime, and I
shall order that he, too, be made whole for the overtime that
he lost, with interest.
Respondent failed to pay all its employees their Christmas
benefits in 1989 because of the union organization campaign
and failed to pay those who participated in the strike in 1990
their accrued vacation benefits in July and their Christmas
benefits in December. I shall recommend that Respondent
make whole the employees who were not paid these benefits
with an equivalent amount of money, together with interest.
The principal affirmative relief which is warranted is to re-
quire Respondent to reinstate all the strikers for whom the
Union made its offer. The relief must ensure that all employ-
ees be made whole for their losses: those who have not been
reinstated; those who have been reinstated, but whose rein-
statement was late, and this seems to include, if not every-
one, almost everyone; those whom Respondent did not prop-
erly recall to work; and those whom Respondent recalled
late, and then discharged. Which employees fit into which
category cannot be fully determined from this record. Re-
spondent did not prove that its offers of reinstatement were
validly served on any striker. Although I have listed above
the results of my review of Respondent’s offers in August
and September 1990, including the names of the persons to
whom most of the offers were made, no proof exists in the
record that the offers were received, except for the admis-
sions of those employees who testified in this proceeding.
I make no finding as to anything else, but note merely, as
I have above, that those employees who refused to respond
to letters which were invalid had a right not to respond to
them and that Respondent’s backpay liability to them contin-
ues to run. Respondent submitted into the record documents
intended to show that it made further offers of reinstatement
during the course of the hearing, including offers to a mass
of employees on March 22 and April 11, 1991. I make no
finding about the validity of those offers: whether they were
sent, whether they were sent to the proper addresses, whether
they were received, whether they were unconditional, and
whether they offered the employees the same positions as
they held before the strike, not equivalent positions, unless
the original jobs no longer existed. There was enough testi-
mony in the record to reveal that documents were not being
mailed and not being received and enough indication that Re-
spondent’s witnesses were not generally worthy of belief for
the Regional Director for Region 29 to insist that documents
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be sent by certified mail, return receipt requested, before
crediting any representation that an offer of reinstatement
was made. In sum, I would expect that Respondent should
make all reasonable efforts to ensure that its offers are ex-
tended to everyone entitled to them, if it has not already
done so.
The General Counsel proved the identity of the strikers by
the following means: All strikers received strike benefits
from Local 99. Starting with January 30, the first day of the
strike, Local 99 compiled a list of the names and social secu-
rity numbers of all the strikers and required proof of the fact
that they formerly worked for Respondent. That proof con-
sisted of pay stubs, and Respondent failed to adduce evi-
dence that anyone on the list was not employed by it before
the strike. (However, a small number of employees listed on
Local 99’s compilation did not work the pay period imme-
diately preceding the strike.) During the strike, each em-
ployee, in order to receive strike benefits and food expenses,
had to come to the church where the October 26 meeting had
been held and sign sheets for those benefits. In addition,
Local 99 had someone present who identified the employees
as persons who were appearing at the picket line. Finally, the
General Counsel offered Respondent’s payroll records for the
pay periods ending January 24 and February 7, 1990, which
for the most part correlate with the other records, to wit,
missing from the payroll of February but present in the ear-
lier payroll are those persons who are listed as having re-
ceived strike benefits, thus proving that they were not being
paid by Respondent because they had joined the strike. At
the hearing, Respondent objected to this method of proving
the identity of the strikers, but failed to show any reasonable
alternative. Its brief is silent.
There is attached to this decision ‘‘Appendix A,’’ which
is the list of the persons who, I find, were strikers and enti-
tled to be reinstated. There is missing from that list Henry,
the sole employee who I have determined in this decision
was not entitled to reinstatement, and Robinson and Charles,
whose right to reinstatement and to be made whole is fully
covered, above. Others have also not been included, because
I had no proof that they ever were or that they remained
strikers. For example, some were listed on the Union’s list,
but they were never paid any benefits. The names of others,
although originally listed in the Union’s records for benefits,
were crossed out. The following are those employees:
Crespin Bruno, Macarthur Davis, Climan Duval, Verrance
Joseph, Jeanne Simone Lacombe, Marie Leconte, Zenon
Lopez, Yves Malivert, Saleem Malik, Jean Malvoisin, Emilio
Meredith, Herbert Melendez, Victor Olague, Augusto
Ordonez, Jose Angel Ortiz, Freda Osias, Y. Perlatta, Marie
D. Pierre, Macarthur Raymond, Eduardo Roman, Joseph
Santual, and Marie Annette Time.
Accordingly, I shall order Respondent to offer immediate
reinstatement, unless it has already done so, to all its strikers,
to their former positions, without prejudice to their seniority
or to other rights and privileges previously enjoyed, dis-
placing, if necessary, any newly hired or reassigned replace-
ment employees or, if their former jobs no longer exist, to
substantially equivalent positions, and make them whole for
any loss of wages and other benefits they may have suffered
by reason of Respondent’s discrimination against them, to be
computed as set forth above. The reinstatement offers shall
be subject to the provision that Respondent shall not require
the employees to fill out any documents or provide any in-
formation other than their names and current addresses. Re-
spondent’s Exhibit 20 demonstrates that Respondent has the
badge number of all the employees. From that, it has access
to all the employees’ relevant documents. Respondent’s time
for engaging in technicalities and delaying tactics must end.
Furthermore, this relief is applicable to all employees, except
for those who may have been reinstated within the time lim-
its provided in Drug Package Co., 228 NLRB 108 (1977).
It is intended to make whole those employees who were rein-
stated untimely and maintained their employment; those who
were never reinstated; those employees who were discharged
on August 13 (see above); and those who are specifically
named above, many of whom are also entitled to be made
whole for periods prior to their reinstatement and subsequent
discharge.
I shall recommend a broad order in this proceeding under
Hickmott Foods, 242 NLRB 1357 (1979). Respondent has
demonstrated a proclivity to violate the Act, having pre-
viously been found in violation of the Act for assisting its
labor organization in Domsey Trading Corp., 296 NLRB 897
(1989). Furthermore, the violations found herein are egre-
gious and widespread and demonstrate that Respondent has
a general disregard for its employees’ fundamental statutory
rights.
The General Counsel requests a variety of extraordinary
remedies for Respondent’s flagrant and repeated unfair labor
practices. First, he requests that Respondent send copies of
the notice to all of the discriminatees, including those who
were never reinstated or were discharged, by certified mail.
In Workroom for Designers, 274 NLRB 840 (1985), the
Board found that the requested relief was warranted because
‘‘it is essential that each employee be made individually
aware of his or her statutory rights’’ and that each employ-
ee’s ‘‘exercise of those rights will be respected.’’ Id. at 841–
842. Furthermore, the Board noted that, because the notice
was long, as it is here, ‘‘each employee should have an op-
portunity to read and absorb it fully,’’ citing Loray Corp.,
184 NLRB 557 (1970). Id. at 842. For both reasons, I agree.
In order that the employees are able to read the notice, it
must be translated into at least two languages, because most
of the employees do not read English. During the hearing,
witnesses’ testimony was translated from Spanish and what
I had been advised was French-Creole. The General Counsel
requests that the notice be translated into ‘‘the employees’
dominant languages, i.e., Haitian-Creole, French and Span-
ish.’’ I do not recall that any one testified in French, and I
have no basis for recommending that French translations be
prepared. I will accept the representation of the General
Counsel that the dominant language of the Haitian employees
is Haitian-Creole, but I shall specifically qualify my rec-
ommended order that it is my intent that, if there are em-
ployees who read languages other than Spanish and Haitian-
Creole, the notice must be translated for those employees,
too. Water’s Edge, 293 NLRB 465 (1989); International
Automated Machines, 285 NLRB 1122 fn. 3 (1987). Re-
spondent’s reinstatement offers must also be translated so
that they can be read by the employees. The General Counsel
also requests that Respondent bear all costs of reproduction,
translation, and mailing by certified or registered mail. I
agree, with the proviso that the translations shall be submit-
ted to the Regional Director for approval and correction, if
813DOMSEY TRADING CORP.
required, before they are mailed or read to the employees, as
provided below.
I agree with the General Counsel’s request that the notice
be read to the assembled employees for two reasons. First,
there is no question that these violations are egregious and
affect the vast majority of employees. The plant must be
overwhelmed with intimidation and obscenities which de-
serve to be dispelled. Many of the violations were so per-
sonal, involving slanders heaped on men and women because
of their color and national origin, that they deserve to be
‘‘undone’’ personally. J. P. Stevens & Co. v. NLRB, 380
F.2d 292, 305 (2d Cir. 1967). Second, some of the employ-
ees were illiterate. A review of the 2-hour videotape (G.C.
Exh. 64A) of the returning strikers signing in on August 13
shows that some employees had great difficulty writing (the
camera zeroed in on a few of them), and I believe that they
could not write or they could not read the letters and num-
bers that they were attempting to copy. An examination of
the signin sheet (G.C. Exh. 35) supports this finding. Ac-
cordingly, I conclude that the notice should be read. Jackson
Tile Mfg. Co., 122 NLRB 764 (1958), enfd. 272 F.2d 181
(5th Cir. 1959); Taylor-Colquitt Co., 47 NLRB 225 (1943),
enfd. 140 F.2d 92 (4th Cir. 1943); NLRB v. Bush Hog, Inc.,
405 F.2d 755 (5th Cir. 1968); NLRB v. Texas Electric Co-
operatives, 398 F.2d 722 (5th Cir. 1968); contra, NLRB v.
Laney & Duke Storage Warehouse Co., 369 F.2d 859 (5th
Cir. 1966).
A reading of the notice is not without its difficulties. As
noted above, most of the employees do not understand
English and will not understand the notice unless it is read
in their native tongues. For this reason, the notice will have
to be read in English and at least two other languages. The
General Counsel requests that Peter read the notice. He can
do so only in English, but it is proper that he should. He is
in charge of the plant, and the employees look to him as
their boss. He was responsible for the vast majority of the
unfair labor practices. Before the strike, he interrogated, he
threatened, he warned, and he fired two of the Union’s lead-
ers. His unfair labor practices caused the strike, at least in
part. During the strike he accused women of prostitution and
having AIDS and said that the Haitians were ‘‘monkeys.’’
When the strike ended, he was at the desk on August 13,
signing in the returning strikers, to whom he gave illegal in-
structions. He delayed and impeded their reinstatement. He
directed Padgett in all of his activities, and Padgett’s harass-
ment and obscenities were joined in by Peter. He personally
fired almost all of the 12 reinstated strikers who were dis-
charged in 1990, and it was his henchman, Padgett, who
caused the constructive discharge of another. He threw a
brick at a female union representative, in the presence of em-
ployees. He fired an employee who had the courage to testify
in this proceeding.
Because of Peter’s intimate involvement with the vast ma-
jority of the unfair labor practices found in this decision, the
requirement that he read the Notice is ‘‘necessary ’to dispel
the atmosphere of intimidation created in large part by [Pe-
ter’s] own statements and actions.’’’ Food & Commercial
Workers v. NLRB, 852 F.2d 1344, 1348–1349 (D.C. Cir.
1988), enfg. 284 NLRB 1429 (1987), quoting from Conair
Corp. v. NLRB, 721 F.2d 1355, 1386–1387 (D.C. Cir. 1983).
Contra NLRB v. S. E. Nichols, Inc., 862 F.2d 952 (2d Cir.
1988), in which the Second Circuit found that the employer
must be given the opportunity to choose either a personal
reading or have the notice read by a Board representative.
The court found that requiring the company official to read
the notice would be humiliating. However, the court ex-
pressly did not hold that a personal reading would never be
appropriate. Id. at 962. Here, much of Peter’s illegal activity
humiliated the employees. It is appropriate that they be given
a personal guarantee that Respondent’s conduct will not be
repeated.
Obviously, Peter cannot read the notice in Spanish or Hai-
tian-Creole or in such other language as the Regional Direc-
tor determines might be required. I will recommend that Re-
spondent be given the option to designate its own supervisors
(such as Maxi, for Haitian-Creole and Jose Perez, for Span-
ish) to read the Notice, or allow Board representatives to do
so. NLRB v. S. E. Nichols, Inc., supra; Textile Workers v.
NLRB, 388 F.2d 896, 904–905 (2d Cir. 1967), cert. denied
393 U.S. 836 (1968). In all cases, Peter shall remain near the
person reading the Notice, so that the employees will be as-
sured that Respondent’s promises to reform its illegal con-
duct are coming from him. Finally, Respondent shall afford
a reasonable opportunity to provide for the attendance of a
Board agent and additional translators to be designated by
the Regional Director of Region 29 at any assembly of em-
ployees called for the purpose of reading such notices. In ad-
dition, each reader of the Notice shall announce, by name
and title, the attendance of the Board agent, so that the em-
ployees will have the assurance that it is the intent of the
Board to monitor compliance with this decision.
The General Counsel also requests that Respondent give
copies of the Decision and Order to all its managers and su-
pervisors, together with a written directive signed by a re-
sponsible official not to violate the terms of the Order, citing
NLRB v. S. E. Nichols, Inc., 284 NLRB 556, 561 (1987),
affd. in pertinent part 862 F.2d 952 (2d Cir. 1988). Respond-
ent’s operates in one facility in Brooklyn, although part of
the facility is the separate Store. All of the illegal conduct
took place in that one facility, whereas S. E. Nichols in-
volved a recidivist employer which did business in numerous
locations and engaged in outrageous conduct for years. In-
deed, that decision relied on J. P. Stevens & Co., 244 NLRB
407 (1979), enfd. 668 F.2d 767 (4th Cir. 1982), and Domsey
is not yet the J. P. Stevens discussed in that decision. Re-
spondent should not find it difficult to communicate with its
managers and supervisors the results of this decision and the
requirements of the recommended Order. I will not grant this
relief.
Nor will I grant the General Counsel’s request for a broad
visitatorial clause which would require Respondent to give to
the Board access to Respondent’s facility to monitor compli-
ance with the posting requirement and to assure itself that the
reinstatement order is being honored. Reinstatement orders
have been issued in thousands of Board decisions without the
necessity a visitorial clause. Although many of the acts com-
mitted by Respondent are no doubt extremely offensive to
anyone’s sensibilities, most of the remedies provided in the
Order are ordinary and run of the mill, issued since the
Board began to operate more than a half-century ago. The
decisions relied on by the General Counsel involve extraor-
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 El Mundo Corp., 301 NLRB 351 (1991); 299 Lincoln Street,
Inc., 292 NLRB 172 (1988); Smythe Mfg. Co., 277 NLRB 680
(1985). Cf. Cherokee Marine Terminal, 287 NLRB 1080, 1083
(1988).
34 The transcript is often inaccurate. Many of the colloquys attrib-
uted statements and questions to the wrong persons, and there are
some answers and some questions which reflect more of a discussion
between the questioner and the interpreter, rather than the purported
answers being exact translations of what the witness said. Finally,
one glaring error that ought to be corrected appears on p. 3000, L.
21: ‘‘not’’ should be inserted after ‘‘will.’’
35 The General Counsel and the Charging Party object to my re-
ceipt and consideration of a letter from Respondent’s counsel, dated
August 6, 1991, which was filed in response to my inquiry, made
known to all parties, about record support for the persons who the
General Counsel claimed were strikers and who Respondent claimed
were not. The letter unfortunately goes far beyond the record and
makes claims that the record will not support. To the extent that it
does, it is not received; and the motion is granted. In so doing, I
note that exhibit B, purportedly annexed to Respondent’s submis-
sion, was not.
36 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
dinary problems of compliance.33 Here, the employees can
easily complain, if they should find that Respondent con-
tinues to harass them; but a Board agent ought not to have
to stand around Respondent’s plant to ensure Respondent
does not again lapse into this kind of conduct.
On these findings of fact and conclusions of law and on
the entire record,34 including my observation of the de-
meanor of the witnesses as they testified, and my consider-
ation of the briefs and comments filed by the General Coun-
sel, Respondent, and the Charging Party,35 I issue the fol-
lowing recommended36
ORDER
The Respondent, Domsey Trading Corporation, Domsey
Fiber Corporation, and Domsey International Sales Corpora-
tion (Respondents), Brooklyn, New York, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening their employees with discharge or reprisals
to discourage them from joining or supporting or assisting
the International Ladies’ Garment Workers’ Union, AFL–
CIO, or Local 99, International Ladies Garment Workers’
Union, AFL–CIO (the Union).
(b) Discharging or issuing warning letters to or in any
other manner discriminating against their employees, because
they engaged in an unfair labor practice strike or they joined,
supported, or assisted the Union or they gave testimony in
a proceeding before the National Labor Relations Board.
(c) Failing or refusing to offer to their unfair labor practice
strikers immediate and unconditional reinstatement to their
former positions of employment.
(d) Requiring their unfair labor practice strikers, in order
to qualify for reinstatement, to fill out and submit by reg-
istered mail, return receipt requested, application forms and
Immigration and Naturalization Service ‘‘Employment Eligi-
bility Verification (I-9)’’ forms or other documents, or to
present social security cards, green cards, passports, birth
certificates, or other personal identification documents when
personally applying for reinstatement.
(e) Imposing more onerous working conditions on their
employees or assigning or transferring them to less desirable
and more arduous work positions or videotaping them or
subjecting them to more vigilant supervision or taking away
privileges previously enjoyed, because they engaged in an
unfair labor practice strike or they joined, supported, or as-
sisted the Union.
(f) Harassing their employees on the job by cursing at
them and insulting them, or by making obscene comments to
and obscene gestures at them, or by spitting on them or mak-
ing faces at them, or by making disparaging remarks or ges-
tures, or by touching them or subjecting them to verbal
abuse, or by throwing things at them, in order to discourage
their employees from joining, supporting, or assisting the
Union, or to retaliate against them for engaging in an unfair
labor practice strike.
(g) Threatening to assault their employees or physically
assaulting them or causing them to be assaulted or struck by
clothing bundles or any other object, or condoning such
physical assaults upon their employees, or assaulting rep-
resentatives of the Union by throwing rocks at them, or dam-
aging or spitting on the automobiles of representatives of the
Union, in the presence of their employees, in order to dis-
courage their employees from joining, supporting, or assist-
ing the Union or to retaliate against them for engaging in an
unfair labor practice strike.
(h) Engaging in degrading or abusive conduct directed to
their employees or to representatives of the Union, in the
presence of their employees, calculated to discourage their
employees from joining, supporting, or assisting the Union.
(i) Questioning their employees about their own or other
employees’ union membership, activities or sympathies, or
concerning other protected activity, including the filing of
unfair labor practice charges with the National Labor Rela-
tions Board.
(j) Engaging in surveillance of their employees, or creating
the impression that Respondents are spying on their employ-
ees while they are engaged in union activity, or offering or
promising money to their employees to induce them to pro-
vide Respondents with information regarding the Union or to
engage in surveillance of the meetings and activities of the
Union.
(k) Threatening their employees that their continued sup-
port for the Union is futile because Respondent will never
recognize the Union or sign a contract with the Union.
(l) Instituting and implementing new rules in order to dis-
courage their employees from joining, supporting, or assist-
ing the Union.
(m) Threatening their employees with loss of paid sick
days and holidays in order to discourage them from joining,
supporting, or assisting the Union.
(n) Directing their employees to remove clothing with a
Union insignia on it.
(o) Withholding from their employees Christmas turkeys
and hams and annual employee vacation benefits in order to
discourage them from joining, supporting, or assisting the
Union or to retaliate against them for engaging in an unfair
labor practice strike.
(p) Implementing new work rules to discourage their em-
ployees from joining, supporting or assisting the Union or to
815DOMSEY TRADING CORP.
37 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
retaliate against them for engaging in an unfair labor practice
strike.
(q) In any other manner interfering with, restraining, or co-
ercing their employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove and remove from their files any references to
the discharges, warnings, or other discipline imposed on
Giles Robinson, James Anthony Charles, Louis Antoine
Dormeville, Dieulenveux Zama, Marie Rose Joseph, Ronald
Jean Baptiste, Mulert Zama, Antoinette Romain, Marie Ni-
cole Mathieu, Margaret St. Felix, Nilda Matos, Victor
Velasquez, Jose DeLeon, Francisco Moreira, and Maximo
Martinez and notify them, in writing, that this has been done
and that the discharges and warnings will not be used against
them in any way.
(b) Offer full and immediate reinstatement, if they have
not already done so, to Giles Robinson, James Anthony
Charles, Louis Antoine Dormeville, Dieulenveux Zama,
Marie Rose Joseph, Ronald Jean Baptiste, Mulert Zama, An-
toinette Romain, Marie Nicole Mathieu, Margaret St. Felix,
Nilda Matos, Victor Velasquez, Jose DeLeon, Francisco
Moreira, and Maximo Martinez and to all their employees
listed in the attached ‘‘Appendix A’’ to their former jobs or,
if their former jobs no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority or other rights
and privileges previously enjoyed, displacing, if necessary,
any newly hired or reassigned replacement employees. No
reinstatement offer shall require any of their employees to fill
out any documents or provide any information other than
their names and current addresses.
(c) Make the above employees whole for any loss of earn-
ings they may have suffered by reason of their discrimination
against them, in the manner set forth in the remedy section
of this decision.
(d) Reinstate the privilege of Giles Robinson of purchasing
clothing at the discount which existed prior to the advent of
the union activity and make him whole for any losses he in-
curred, with interest as provided in the remedy section of this
decision.
(e) Make all their employees whole for Respondents’ fail-
ure to give Christmas turkeys in 1989, their reinstated em-
ployees for Respondents’ failure to give Christmas turkeys
and hams in 1990, and their striking employees for Respond-
ents’ failure to pay vacation benefits due them for the year
ending June 1, 1990, with interest as provided in the remedy
section of this decision.
(f) Make whole Jose DeLeon for his loss of overtime pay
caused by their reinstatement of him to a different position
than he held before the 1990 strike, with interest.
(g) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(h) Mail to each of their current employees and each of
the employees listed in the attached ‘‘Appendix A’’ and post
at their place of business in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix B.’’37 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by Respondents’ authorized rep-
resentatives, shall be posted by Respondents immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material. Moreover,
copies of the notice shall be posted in English, Haitian-Cre-
ole, Spanish, and such other written languages used by the
employees as shall be determined by the Regional Director
of Region 29. Copies of all other documents required by this
Order shall be similarly translated, and copies of all trans-
lations shall be provided to the Regional Director of Region
29 at the time of their posting or mailing.
(i) Convene during work hours, by shift, department or
otherwise, and have Peter Salm, Respondents’ manager, read
to the assembled employees the contents of the attached no-
tice in English, followed by a reading of the foreign lan-
guage translations by Respondents’ representatives fluent in
the relevant language or by designees of the Regional Direc-
tor of Region 29. The Regional Director for Region 29 shall
be afforded a reasonable opportunity to provide for the at-
tendance of a Board agent and additional translators of the
Regional Director’s choosing.
(j) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with discharge or
reprisals to discourage them from joining or supporting or
assisting the International Ladies’ Garment Workers’ Union,
AFL–CIO, or Local 99, International Ladies Garment Work-
ers’ Union, AFL–CIO (collectively, the Union).
WE WILL NOT discharge or issue warning letters to or in
any other manner discriminate against our employees, be-
cause they engaged in an unfair labor practice strike or they
joined, supported, or assisted the Union or they gave testi-
mony in a proceeding before the National Labor Relations
Board.
WE WILL NOT fail or refuse to offer to our unfair labor
practice strikers immediate and unconditional reinstatement
to their former positions of employment.
WE WILL NOT require our unfair labor practice strikers, in
order to qualify for reinstatement, to fill out and submit by
registered mail, return receipt requested, application forms
and Immigration and Naturalization Service ‘‘Employment
Eligibility Verification (I-9)’’ forms or other documents, or
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to present social security cards, green cards, passports, birth
certificates, or other personal identification documents when
personally applying for reinstatement.
WE WILL NOT impose more onerous working conditions on
our employees or assign or transfer them to less desirable
and more arduous work positions or videotape them or sub-
ject them to more vigilant supervision or take away privi-
leges previously enjoyed, because they engaged in an unfair
labor practice strike or they joined, supported, or assisted the
Union.
WE WILL NOT harass our employees on the job by cursing
at them and insulting them, or by making obscene comments
to and obscene gestures at them, or by spitting on them or
making faces at them, or by making disparaging remarks or
gestures, or by touching them or subjecting them to verbal
abuse, or by throwing things at them, in order to discourage
our employees from joining, supporting, or assisting the
Union, or to retaliate against them for engaging in an unfair
labor practice strike.
WE WILL NOT threaten to assault our employees or phys-
ically assault them or cause them to be assaulted or struck
by clothing bundles or any other object, or condone such
physical assaults upon our employees, or assault representa-
tives of the Union by throwing rocks at them, or damaging
or spitting on the automobiles of representatives of the
Union, in the presence of our employees, in order to discour-
age our employees from joinging, supporting, or assisting the
Union or to retaliate against them for engaging in an unfair
labor practice strike.
WE WILL NOT engage in degrading or abusive conduct di-
rected to our employees or to representatives of the Union,
in the presence of our employees, calculated to discourage
our employees from joining, supporting, or assisting the
Union.
WE WILL NOT question our employees about their own or
other employees’ union membership, activities, or sym-
pathies, or concerning other protected activity, including the
filing of unfair labor practice charges with the National
Labor Relations Board.
WE WILL NOT engage in surveillance of our employees, or
create the impression that we are spying on our employees
while they are engaged in union activity, or offer or promise
money to our employees to induce them to provide us with
information regarding the Union or to engage in surveillance
of the meetings and activities of the Union.
WE WILL NOT threaten our employees that their continued
support for the Union is futile because we will never recog-
nize the Union or sign a contract with the Union.
WE WILL NOT institute and implement new rules in order
to discourage our employees from joining, supporting, or as-
sisting the Union.
WE WILL NOT threaten our employees with loss of paid
sick days and holidays in order to discourage them from
joining, supporting, or assisting the Union.
WE WILL NOT direct our employees to remove clothing
with a union insignia on it.
WE WILL NOT withhold from our employees Christmas tur-
keys and hams and annual employee vacation benefits in
order to discourage them from joining, supporting, or assist-
ing the Union or to retaliate against them for engaging in an
unfair labor practice strike.
WE WILL NOT implement new work rules to discourage
our employees from joining, supporting or assisting the
Union or to retaliate against them for engaging in an unfair
labor practice strike.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
WE WILL remove from our files any references to the dis-
charges, warnings, or other discipline imposed on Giles Rob-
inson, James Anthony Charles, Louis Antoine Dormeville,
Dieulenveux Zama, Marie Rose Joseph, Ronald Jean
Baptiste, Mulert Zama, Antoinette Romain, Marie Nicole
Mathieu, Margaret St. Felix, Nilda Matos, Victor Velasquez,
Jose DeLeon, Francisco Moreira, and Maximo Martinez and
notify them, in writing, that this has been done and that the
discharges and warnings will not be used against them in any
way.
WE WILL offer full and immediate reinstatement, if we
have not already done so, to Giles Robinson, James Anthony
Charles, Louis Antoine Dormeville, Dieulenveux Zama,
Marie Rose Joseph, Ronald Jean Baptiste, Mulert Zama, An-
toinette Romain, Marie Nicole Mathieu, Margaret St. Felix,
Nilda Matos, Victor Velasquez, Jose DeLeon, Francisco
Moreira, and Maximo Martinez and to all their employees
listed in the attached ‘‘Appendix A’’ to their former jobs or,
if their former jobs no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority or other rights
and privileges previously enjoyed, displacing, if necessary,
any newly hired or reassigned replacement employees. No
reinstatement offer shall require any of our employees to fill
out any documents or provide any information other than
their names and current addresses.
WE WILL make the above employees whole for any loss
of earnings they may have suffered by reason of our dis-
crimination against them, with interest.
WE WILL reinstate the privilege of Giles Robinson of pur-
chasing clothing at the discount which existed prior to the
advent of the union activity and make him whole for any
losses he incurred, with interest.
WE WILL make all our employees whole for our failure to
give Christmas turkeys in 1989, our reinstated employees for
our failure to give Christmas turkeys and hams in 1990, and
our striking employees for our failure to pay vacation bene-
fits due them for the year ending June 1, 1990, with interest.
WE WILL make whole Jose DeLeon for his loss of over-
time pay caused by our reinstatement of him to a different
position than he held before the 1990 strike, with interest.
DOMSEY TRADING CORPORATION, DOMSEY
FIBER CORPORATION AND DOMSEY INTER-
NATIONAL SALES CORPORATION, A SINGLE
EMPLOYER