Igramo Enterprise, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 29, 2007

29-CA-027247 (N.L.R.B. Jun. 29, 2007)

JD(NY)–29–07
Queens, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
IGRAMO ENTERPRISE, INC.
and Case No. 29-CA-27247
ORCES FRIAS,
An Individual
and Case No. 29-CA-27320
GUSTAVO BETANCOURT,
An Individual
Nancy Reibstein, Esq., Counsel for
the General Counsel
David Singer, Esq., Counsel for the
Respondent
SUPPLEMENTAL DECISION
Raymond P. Green, Administrative Law Judge. I issued a Decision in this case on
September 15, 2006. By Order dated June 12, 2007, the Board remanded this case to me to
make further findings and to issue a Supplemental Decision.
Orces Frias testified that on October 22, 2005, Markles Rosado told him that he was
fired on orders from Grace Moya and stated in substance, that he had learned from employee
Alarcon that Frias was the “leader of all this mess.” 1
On this particular point, I do not credit Frias. For one thing, I have already concluded
that Frias was an unreliable witness because he falsely denied that he had received any
warnings in the past. (In fact, he had been told in March 2005 that he was being given one last
chance.) 2 For another, the statement attributed to Rosado is not really probable because the
evidence does not show that Frias was the leader of the employees in trying to get better wages
and benefits. Nor did the evidence show that Frias had anything of substance to say at the
meeting on October 15, 2005, which was, in my opinion, the triggering event in relation to the
discriminatory actions taken against Gustavo Betencourt.
In my decision I had concluded that the original efforts by the employees to obtain
reimbursement for higher gasoline prices was not viewed disfavorably by Moya. My conclusion
was that the thing that tipped the apple cart was when certain drivers, on October 15, 2005,
raised the ante by making demands on other issues and when Betancourt threatened to go to

1 This was corroborated by Betancourt who testified that he overheard the conversation between
Markles and Frias. I think he is mistaken about this. He testified that he also heard Markles say that Frias
was being fired because of a mistake he had made at one of the hospitals.
2 In my opinion, the receipt of what amounted to a final warning is not the kind of thing one would
easily forget.
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the Department of Labor if the new demands were not met. (At this meeting, Frias did not have
anything to say about these issues.)
Thus, while the evidence pointed to the likelihood that Moya retaliated against
Betancourt because of his role in the October 15 meeting; more specifically his threat to go to
the Department of Labor, the evidence was wholly lacking to show any reason why she would
have wanted to retaliate against Frias who played no role in the October 15 discussions and
who otherwise had no unique role in shaping the original employee demand regarding gasoline
prices. (Also, the evidence did not show that Frias had anything to do with the preparation of
General Counsel Exhibit 11, which was a second petition setting forth the new demands. This
document seems to have been presented to the Respondent by Betancourt).
In my opinion, the Respondent discharged Frias, not because of any protected
concerted activity on his part, but because he missed pickups on his route. One of these
incidents occurred around September 26 and the other occurred on or about October 14, 2005.
(The day before the meeting). The credited testimony of Jack Buckley, Antech’s traffic
manager, shows that the Respondent’s only customer was concerned about these missed
pickups and that he conveyed his concern to the Respondent. Considering the fact that Frias
had received what amounted to a final warning back in March 2005, I conclude that the
Respondent discharged him for reasons wholly apart from any protected activity that he may
have engaged in.
In short, even if I were persuaded, (which I am not), that the General Counsel had
presented sufficient evidence to show that “a” reason for Frias’ discharge was because of his
alleged protected concerted activity, (or because the Respondent thought he had engaged in
such activity), I would nevertheless find that the Respondent had, in fact, discharged him for
reasons unrelated to those activities, but rather because of his failure to properly perform his job
duties.
Accordingly, I reaffirm my original decision to dismiss the allegations of the Complaint
insofar as they alleged that Frias was illegally discharged because of his protected, concerted
activities.
Dated, Washington, D.C., June 29, 2007.
_____________________
Raymond P. Green
Administrative Law Judge