J.A.H. Carting Corp.

National Labor Relations Board - Board Decisions

Apr 8, 1996

320 N.L.R.B. 1127 (N.L.R.B. 1996)

1127
320 NLRB No. 145
J.A.H. CARTING CORP.
1 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’s exceptions assert that the judge’s decision evi-
dences bias and prejudice. On our full consideration of the entire
record in these proceedings, we find no evidence that the judge pre-
judged the case, made prejudicial rulings, or demonstrated bias
against the Respondent in her analysis and discussion of the evi-
dence.
2 In the first paragraph of sec. II,B of her decision, the judge found
that the Respondent received the Union’s written demand for rec-
ognition in late September or early October 1994. In her Conclusion
of Law 6, however, the judge states that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by refusing to bargain with the Union
‘‘since on and after September 21, 1994.’’ In order to more accu-
rately reflect the state of the record on this matter, we shall modify
that conclusion of law by substituting ‘‘since late September or early
October 1994’’ for ‘‘since on and after September 21, 1994.’’ This
modification does not, however, affect the correctness of the judge’s
finding in the final paragraph of sec. II,C of her decision, which we
adopt, that the bargaining order remedy for the 8(a)(1), (3), and (4)
violations should date from September 21, 1994, the date that the
Respondent embarked on its clear course of unlawful conduct to un-
dermine the Union’s majority status.
1 Counsel for the General Counsel and counsel for the Respondent
are urged, in future, to read their briefs before they are served and
filed. I note that the brief filed on behalf of Respondent is replete
with factual statements that are not supported by the record; these
are too numerous to list. I have based my findings of fact on the
record herein and I have disregarded purported facts stated for the
first time in Respondent’s brief.
J.A.H. Carting Corp. and Local 813, International
Brotherhood of Teamsters, AFL–CIO. Cases
29–CA–18595, 29–CA–18657, and 29–CA–18762
April 8, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 10, 1995, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding 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,1 and con-
clusions,2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board orders that the
Respondent, J.A.H. Carting Corp., Flushing, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Ann Goldwater and Diane H. Lee, Esqs., for the General
Counsel.
Joseph M. Mayerhoff, Esq., of Flushing, New York, for the
Respondent.
Michael Lieber, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on February 15 and
16 and May 23, 1995. The complaint alleges that Respondent
engaged in numerous violations of Section 8(a)(1) of the Act,
that Respondent discharged employees Dino De Cesare and
Ralph Diaz in violation of Section 8(a)(3) and (4) of the Act
and that Respondent failed to bargain with the Union in vio-
lation of Section 8(a)(5) of the Act. The complaint seeks as
a remedy, inter alia, a bargaining order based upon authoriza-
tion cards. The Respondent denies that it has engaged in any
violations of the Act and asserts that the Board lacks juris-
diction herein.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent on July 26,
1995, I make the following1
FINDINGS OF FACT
I. JURISDICTION
The Respondent, which maintains a place of business in
Flushing, New York, is engaged in garbage collection for
commercial customers. On October 5, 1994, Respondent stip-
ulated on the record in a hearing held in Case 29–RC–8357
that it ‘‘performs services valued in excess of 50,000 dollars
for various enterprises located in the State of New York,
each of which enterprises in turn meet a direct Board stand-
ard for the assertion of jurisdiction exclusive of indirect in-
flow and indirect outflow.’’ The Respondent further stipu-
lated on the record in that case that it is engaged in com-
merce within the meaning of the Act. In its answer to the
instant complaint, however, Respondent denied that it is en-
gaged in commerce. Counsel for Respondent stated on the
record on the first day of the hearing herein that he had
made the stipulation in the representation case in error be-
cause he had been misled by Regional Director Blyer in a
conference conducted before the representation hearing. In
the brief submitted herein by Respondent, counsel maintains
that he was misled by Board Agent Roth. Notwithstanding
these assertions, counsel for Respondent also argued on the
record herein that Respondent had entered into the stipulation
‘‘legitimately,’’ but that circumstances had changed in the
time between the commencement of the representation pro-
ceeding and the service of the complaint herein. Having
heard the arguments of the parties concerning jurisdiction at
the hearing, I ruled that Respondent was bound by its stipu-
lation in Case 29–RC–8357 and I struck that portion of Re-
spondent’s answer which denied that the Board had jurisdic-
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In this case, Respondent wishes to compare its business in the
12 months before September 1994, when the representation proceed-
ing began, with a purported lesser amount of business in the 12
months before December 1994, when the instant complaint was
issued. Respondent was able to cite only one account it lost after
the date of the stipulation.
tion over the Respondent. See Dollar Rent A Car, 250 NLRB
1361 (1980). However, I permitted Respondent to read into
the record an offer of proof and to introduce certain evi-
dence. Counsel for the General Counsel also attempted to in-
troduce certain evidence concerning jurisdiction, but the doc-
ument was rejected pursuant to the objection of Respondent.
In Spring Valley Farms, 274 NLRB 643, 644 (1985), the
Board affirmed the administrative law judge’s finding that a
respondent is bound by its stipulation in a prior representa-
tion case that it meets the criteria for the assertion of juris-
diction ‘‘in the absence of any evidence submitted by Re-
spondent that it no longer meets the [jurisdictional criteria]
established in the representation case.’’ I read this language
to mean that Respondent is bound by its stipulation unless
it can show that after the stipulation was entered into cir-
cumstances changed and that by the time the unfair labor
practice proceeding was commenced it no longer met the ju-
risdictional criteria. I reject the suggestion of Respondent that
the 12-month period before the representation petition was
filed should be compared with the 12-month period before
the issuance of the complaint. Adoption of that method
would produce a situation where changes in circumstances
which took place before the stipulation was entered into
could be cited to undermine the stipulation; this lack of final-
ity would encourage relitigation of matters established in rep-
resentation proceedings.2 In the instant case, Respondent pro-
duced testimony that it lost one $32-per-week account in
February 1995. Respondent’s brief represents that in the 12
months before it entered into the stipulation on October 5,
1994, Respondent had revenue of approximately $72,000.
The loss of the one account cited would not bring Respond-
ent’s income below the $50,000 level required for the asser-
tion of jurisdiction herein. I reject as inaccurate Respondent’s
statement that by permitting its offer of proof I abrogated my
ruling that its answer denying jurisdiction must be stricken.
The state of the record herein is that I have ruled that Re-
spondent is bound by the stipulation on jurisdiction it entered
into on October 5, 1994, and I find that the record contains
no evidence justifying a reversal of that ruling.
Respondent cited its failure to be served with two of the
charges herein. The complaint was served on January 4,
1995, a date within 6 months of the events alleged as unfair
labor practices. Buckeye Plastic Molding, 299 NLRB 1053
(1990).
Respondent admitted that Local 813, International Brother-
hood of Teamsters, AFL–CIO is a labor organization under
the Act.
I find that J.A.H. Carting Corp. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Credibility of the Witnesses
Jose Ralph Diaz and Dino Di Cesare testified that they had
worked for Respondent and they each recounted the incidents
that are the basis for the instant complaint. Both of these wit-
nesses had some difficulty recalling dates and the sequence
of events. As to several of the incidents they testified about,
their narratives were so confused that I shall disregard their
testimony completely. However, some of their testimony had
the ring of truth. It was clear to me that Diaz and Di Cesare
did recall accurately several conversations with a manager of
Respondent and I shall rely on their testimony where war-
ranted. Rick Carnivale, the executive management consultant
of Respondent, testified on behalf of Respondent. His testi-
mony was often in response to leading questions by counsel
for Respondent and I have evaluated the answers given in
this manner carefully. Further, a great deal of Carnivale’s
testimony was obvious hearsay and was predicated on infer-
ences or suppositions stated by him on the record; although
much of this hearsay testimony was unobjected to by counsel
for the General Counsel, I shall not rely on it to find any
facts that are material to the allegations herein. Finally,
Carnivale’s testimony was inconsistent and self-contradictory.
Often, Carnivale gave two different versions of the facts in
the course of a single answer; he would begin a response to
a question with one version of the facts and conclude with
a different version. Carnivale’s demeanor in the hearing
room showed that he was hostile to the legal process. I was
convinced from my observation of him as he testified that he
readily fabricated testimony as he went along. I shall not rely
on Carnivale’s testimony where it is contradicted by more
credible evidence or where its inherent contradictions make
it unlikely that the testimony is accurate. Thomas Gioia, a
business agent for the Union, testified on behalf of the Gen-
eral Counsel. I shall credit his testimony.
B. Facts, Discussion, and Conclusions
Local 813 Business Agent Gioia met with three employees
of Respondent on September 8, 1994. The men discussed the
benefits of union membership, and Dino Di Cesare and
Mukhtiar Singh (often referred to as Gill) signed union au-
thorization cards on that day. Jose Ralph Diaz was at the
meeting. He signed a card on September 22, 1994. Respond-
ent stipulated that at the end of September or the beginning
of October 1994 it received a letter from the Union request-
ing recognition as the exclusive representative of the employ-
ees and bargaining on behalf of the employees.
Di Cesare testified that he began driving a garbage truck
for Respondent about August 1, 1994. He was hired by Rick
Carnivale to whom he showed his commercial driver’s li-
cense. For a few days Carnivale accompanied Di Cesare to
teach him how to drive a garbage truck. After that period,
Carnivale told him that he was a good driver and permitted
him to drive on his own. Carnivale told Di Cesare that the
job was permanent because his former driver, Sewa Dhillon
Singh (also called Sam), had hurt his back and was gone. At
first, Di Cesare received $300 per week for driving 6 nights
per week; after he asked for a raise, he was given $350 per
week. Di Cesare was paid in cash or was given his wages
1129J.A.H. CARTING CORP.
3 Di Cesare could not recall whether Carnivale was telephoning
from Florida or from New York.
4 The hearing was postponed to October 5, 1994, after the union
agent and the men arrived at the Regional Office. 5 Linda Healey did not testify herein.
half in cash and half by check. Di Cesare had two helpers
on the truck whose job it was to toss garbage bags or to
empty containers into the back of the truck: these were Diaz
and Gill. Twice a week, Diaz collected fees from the cus-
tomers of Respondent. Diaz also kept track of how much
garbage each customer disposed of; this task took 1 minute
at each stop. A few weeks after Di Cesare began work for
Respondent, Carnivale went to Florida. Carnivale and Di
Cesare spoke by telephone during this period, and Di Cesare
informed Carnivale that all was well with the business.
Di Cesare testified that on September 21, 1994, Carnivale
called him at home and asked whether he had signed a card
for the Union. When Di Cesare replied that he had signed
a card, Carnivale reminded Di Cesare that he had told him
never to sign any union cards and to stay away from the
Union.3 A few days after this conversation, Carnivale met
with Di Cesare, Diaz, and Gill at a diner at about 10 or 11
a.m. Carnivale told the three employees that they had to
change their minds about joining the Union. He told them
that he would increase their pay by $100 per week. Carnivale
instructed Di Cesare to tell the Labor Board that he had been
hired as a temporary worker; he told Diaz to say that he was
only a bill collector; and he told Gill to say that he was the
sole helper. Carnivale told the men that they should tell the
Board that they signed the union authorization cards in the
belief that they were for magazine subscriptions. He said that
if the men signed with the Union it would cause a lot of
problems and break down the Company. Carnivale said that
there would never be a union; he would change the company
name; and he would make things even worse for the men.
He told Di Cesare, ‘‘I’ll fire you. You and Ralph [Diaz] will
get fired.’’ Carnivale told the men that there were three
things he hated, the ‘‘Feds,’’ the City Department of Con-
sumer Affairs, and unions.
Di Cesare tried to recall an occasion when he and Diaz
believed that Carnivale was following them around as they
met with a union agent before proceeding to the first day of
the scheduled hearing in the representation case.4 His testi-
mony is too confused on this point for me to find any unfair
labor practices based on this evidence. However, Di Cesare
testified credibly concerning events following that day. Ac-
cording to Di Cesare, the night after the hearing was post-
poned, he went to work, but Carnivale said that he would
drive the truck himself, and he instructed Di Cesare to go
home and spend time with his new baby. The next night, Di
Cesare again reported for work and again Carnivale sent him
home. Di Cesare asked whether he was fired and Carnivale
said, ‘‘No, not right now,’’ and explained that he would see
what happened the next day at the Labor Board. Di Cesare
testified at the representation hearing the next day. After the
hearing, he and counsel for the Union, Michael Lieber, Esq.,
spoke to Carnivale. Lieber asked Carnivale whether Di
Cesare had been fired. Carnivale said, ‘‘[Y]es.’’ A few days
later, Di Cesare went to Carnivale’s home to return the keys
to the garbage truck and to receive $60 which was owed to
him. Carnivale’s wife, Linda Healey the president and owner
of Respondent, came to the door. According to Di Cesare,
she began screaming at him, calling him a ‘‘fucking idiot’’
and ‘‘an asshole,’’ saying that Di Cesare had caused a prob-
lem with the Union and that he had known the job was non-
union when he was hired.5
Diaz testified that he had worked as a helper for Respond-
ent for about 5 years. His job was to pick up garbage and
throw it into the truck. On Thursdays and Fridays, he col-
lected money from Respondent’s customers. He also kept a
record of how many bags or containers of garbage Respond-
ent’s customers disposed of each week. He was paid $350
per week; $225 of this was by check and the rest in cash.
Diaz recalled that Carnivale met with the employees at a
diner in late-September 1994 and told them that the Union
could not get in; and he would get rid of whoever tried to
bring the Union. Carnivale expressed his willingness to give
the men a raise to $400 per week for testifying as he wished
in the representation proceeding; he wanted Gill to pretend
that he could not speak English; he told Di Cesare to say that
he only worked 3 days a week; and he told Diaz to testify
that he was not a helper but that he was a bill collector.
Carnivale stated that if they did not do as he wished, he
would get rid of them; he would sell the Company; or
change its name. Diaz testified that on the night that
Carnivale sent Di Cesare home instead of permitting him to
work, Carnivale took Diaz aside and told him what to say
when he went to the representation hearing. He called Diaz
an ‘‘inconsiderate mother-fucker,’’ and said he would break
Diaz’ arms if he did not testify as instructed. Carnivale said
that he had gotten rid of Di Cesare and that he would get
rid of Diaz in the same manner if he continued with his
union support. Nevertheless, Diaz testified truthfully at the
hearing. On the night of the hearing when Diaz reported to
work, Carnivale cursed him and said that he would get rid
of him for testifying contrary to Carnivale’s instructions.
Diaz had been caring for Carnivale’s dog for several years,
and Carnivale instructed him to go home and bring the dog
to Carnivale’s home. Diaz had left the dog with his former
landlord and he made arrangements to pick him up on the
weekend. However, Carnivale refused to let Diaz work the
next night and again he sent him home to get the dog.
Carnivale cursed him and threatened to break his legs. On
the third night, Diaz again told Carnivale that he would bring
the dog on the weekend. Carnivale yelled at Diaz. He said
that he had told Diaz what to do; he said that Di Cesare was
not there any more; and that Diaz would be the next one to
go. Carnivale did not permit Diaz to work that night. Eventu-
ally, Carnivale picked up the dog at Diaz’ former residence.
When Diaz next attempted to report to work, Carnivale told
him that he was fired.
Attorney Lieber testified that on October 5, 1994, after the
representation hearing he asked Carnivale about the employ-
ment status of Di Cesare. Carnivale stated that Di Cesare had
been fired. On October 11, the second day of representation
hearings, Lieber asked Carnivale about Diaz. Carnivale re-
plied that Diaz had been fired.
Carnivale testified that he is a Florida resident and that he
took his wife to Florida for medical treatment on August 19,
1994, and returned to New York on September 25. Respond-
ent maintains that Di Cesare was a temporary employee who
was filling in while Carnivale went to Florida. Carnivale stat-
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I find all of Carnivale’s testimony about the dog to be particu-
larly disingenuous.
ed that he had been driving the garbage truck for a ‘‘few
months’’ ever since the regular driver, Sam Singh, left for
an operation on his back or because of lung disease.
Carnivale testified that Singh left in July and that Di Cesare
began driving the truck on August 1. Carnivale then stated
that before he drove a truck, Di Cesare did work in the yard
and that weeks after this he spent 7 to 10 days teaching Di
Cesare to drive the truck. When shown a check from Re-
spondent to Di Cesare for $150 dated August 20, 1994,
Carnivale said that this payment was for yard work or me-
chanical work and not for driving. Carnivale maintained that
he had offered to pay Di Cesare $10 per hour or $75 per
day whichever was greater and that Di Cesare wanted to be
paid off the books. Carnivale testified that Di Cesare was not
an employee of Respondent, and that he was not paid by Re-
spondent but was paid personally by Carnivale for driving
the truck as his own replacement. Carnivale asserted that he
drove the truck while he waited for Sam Singh to return to
work. He insisted that he intended to keep driving the truck
himself until Singh’s return. At the time of the instant hear-
ing in 1995, Carnivale had not spoken to Sam Singh since
July 1994, but he had met a friend of Singh’s who told him
that Singh was partially paralyzed and was in Canada or
California. Carnivale also testified that he was looking for a
good driver at the time of the instant hearing and that he was
using a temporary driver ‘‘until I find the right one’’ at
which time he would fill the job. On cross-examination,
Carnivale admitted that he does not have the commercial
driver’s license that is required in order to drive a garbage
truck. Carnivale testified that he had met with the employees
on the night of September 25 to thank them for working in
his absence. He denied that anyone mentioned the Union on
this occasion. According to Carnivale, September 25 was the
last night Di Cesare worked as a truckdriver for him.
Carnivale stated that he did not learn about the union petition
until September 28, and that he told the men that they were
not to discuss it with him. As stated above, I found that
Carnivale was not a reliable witness and I shall not rely on
any of this testimony.
I credit Di Cesare’s testimony that he was hired to drive
Respondent’s garbage truck about August 1, 1994, and that
Carnivale told him the job was permanent. I find that Di
Cesare was an employee of Respondent. I credit Di Cesare’s
testimony that Diaz was a helper on the truck and regularly
tossed garbage into the truck. I credit Di Cesare that
Carnivale called him at home on September 21, 1994, asked
him if he had signed a card for the Union, and told him to
refrain from union activities. I credit Di Cesare that some
time after this conversation, Carnivale met with all three em-
ployees and told the men to refrain from supporting the
Union and to repudiate the Union, promised to increase their
pay if they followed his instructions, and urged them to lie
to the Board about their membership in the Union and their
employment status with Respondent. I credit Di Cesare that
Carnivale threatened the men with adverse actions and with
discharge if they supported the Union and that Carnivale told
them that seeking membership in the Union was futile. Thus,
I find that Respondent violated Section 8(a)(1) of the Act.
I credit Di Cesare’s testimony that the owner and president
of Respondent cursed at him for joining the Union and for
bringing the Union to Respondent. I find that Respondent
discharged Di Cesare because he joined and supported the
Union and because he testified at the representation proceed-
ing. Respondent thus violated Section 8(a)(3) and (4) of the
Act.
Carnivale testified that Diaz collected money from cus-
tomers and worked on the garbage truck as a clerical em-
ployee. Carnivale denied that Diaz was a helper and he stat-
ed that Diaz tossed garbage only when he felt like it. At the
instant hearing, Carnivale testified that Diaz spent 40 percent
of his time collecting money, 50 percent doing surveys, and
10 percent of his time eating a meal. At the representation
hearing, Carnivale had testified that Diaz spent 65 percent of
his time collecting money, 20 percent doing surveys, and the
rest of the time Diaz threw garbage into the truck. Carnivale
denied threatening his employees and he denied telling them
how to testify in the representation proceeding. Carnivale de-
nied that he had discharged Diaz. He stated that he had sent
Diaz home to get his dog and to pick up certain route
records but that Diaz did not come to work and did not call.
Respondent contends that Diaz voluntarily quit his job. Nev-
ertheless, Respondent proffered testimony by Carnivale that
he was becoming dissatisfied with Diaz’ performance. I shall
not rely on this testimony: as stated above, I do not find that
Carnivale was a credible witness and Respondent does not
contend that Diaz was discharged for poor performance.6
I find that Diaz was employed by Respondent as a helper
on its garbage truck. I credit Diaz that Carnivale said that
he would discharge employees who tried to bring in the
Union and that he promised the men a raise to testify falsely
at the representation proceeding. I credit Diaz that Carnivale
threatened to discharge anyone who did not testify as he
wished and that he threatened to sell the Company or change
its name. In addition to the unfair labor practices found
above, I find, based on the testimony of Diaz, that Carnivale
threatened to sell the Company if the employees persisted in
their support for the Union, threatened Diaz with bodily
harm if he did not testify in favor of Respondent at the rep-
resentation proceeding, and that he threatened Diaz with dis-
charge if he continued to support the Union. I find that
Carnivale told Diaz that he had discharged Di Cesare for
joining the Union. I find that Carnivale discharged Diaz be-
cause he testified contrary to Carnivale’s instructions at the
representation hearing and because he joined and supported
the Union. Respondent thus violated Section 8(a)(1), (3), and
(4) of the Act.
C. The Request for a Bargaining Order
The record establishes that in September 1994, Respondent
had three employees: these were Mukhtiar Singh, Dino Di
Cesare, and Jose Ralph Diaz. I do not find that Sewa Dhillon
Singh was an employee: he had not been heard of for
months, Carnivale had no idea of his whereabouts, and he
was said to be partially paralyzed. Indeed, at the time of the
hearing in 1995, Carnivale testified that the job of driver
would be filled as soon as he found the right candidate. The
record establishes that the following employees of Respond-
ent constitute a unit appropriate for collective bargaining:
All chauffeurs and helpers employed by the employer
at its Flushing facility, excluding all office clerical em-
1131J.A.H. CARTING CORP.
7 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.
ployees, guards and supervisors as defined in Section
2(11) of the Act.
The record shows that on September 8, 1994, the Union
had received signed authorization cards from two of the three
employees of Respondent. On September 22, the Union re-
ceived a card from the third employee.
The General Counsel contends that Respondent has en-
gaged in unfair labor practices so serious and substantial that
the possibility of erasing the effects of these unfair labor
practices and of conducting a fair election by the use of tra-
ditional remedies is slight. The General Counsel urges that
the employees’ sentiments have been expressed through au-
thorization cards and that they would better be protected by
the issuance of a bargaining order.
I have found above that Respondent unlawfully interro-
gated its employees and directed them to refrain from sup-
porting the Union and to repudiate the Union, directed the
employees to testify falsely at the representation hearing,
threatened them with bodily harm and discharge if they did
not abandon the Union and testify falsely at the representa-
tion proceeding, threatened to sell the Company and render
their selection of the Union a futile act, offered employees
a raise to abandon the Union and to testify falsely, informed
an employee that another employee had been fired because
he joined the Union, and I have found that Respondent dis-
charged two employees because they joined the Union and
refused to abandon their membership in the Union and be-
cause they gave truthful testimony at the representation pro-
ceeding. By discharging two of the three unit employees, Re-
spondent effectively rid itself of the employees who resisted
its threats and who continued unwavering in their support for
the Union. All of the unfair labor practices were committed
by the manager of Respondent who ran the Company and
who hired and fired employees; this manager is the husband
of the president and owner of Respondent. These unfair labor
practices are outrageous and pervasive, and their coercive ef-
fects cannot be eliminated by the application of traditional
remedies. A fair and reliable election cannot be held among
the Respondent’s employees. NLRB v. Gissel Packing Co.,
395 U.S. 575, 613–614 (1969). A bargaining order is war-
ranted to best protect employees’ rights.
I have found above that on September 8, 1994, the Union
received signed authorization cards from a majority of the
employees in the appropriate unit. I find that on September
21, 1994, when Carnivale interrogated Di Cesare and told
him to stay away from the Union, Respondent embarked on
a clear course of unlawful conduct to undermine the Union’s
majority status. Thus, the bargaining order should date to
September 21, 1994. Trading Port, 219 NLRB 298, 301
(1975), and Drug Package Co., 228 NLRB 108, 111 (1977).
CONCLUSIONS OF LAW
1. By coercively interrogating its employees, instructing
them to refrain from union activity and to repudiate the
Union; instructing its employees to testify falsely at a rep-
resentation proceeding; promising employees a raise if they
repudiated the Union and testified falsely at a representation
proceeding; informing its employees that seeking member-
ship in the Union was futile; threatening its employees with
adverse action and with discharge if they continued to sup-
port the Union, threatening to sell the Company if the em-
ployees supported the Union; threatening its employees with
bodily harm if they did not testify in Respondent’s favor at
a representation hearing; and informing its employees that an
employee had been discharged for joining the Union, Re-
spondent violated Section 8(a)(1) of the Act.
2. By discharging Dino Di Cesare and Jose Ralph Diaz be-
cause they joined and supported the Union, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
3. By discharging Dino Di Cesare and Jose Ralph Diaz be-
cause they testified truthfully at the representation hearing,
Respondent violated Section 8(a)(4) and (1) of the Act.
4. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All chauffeurs and helpers employed by the employer
at its Flushing facility, excluding all office clerical em-
ployees, guards and supervisors as defined in Section
2(11) of the Act.
5. Since September 8, 1994, Local 813, International
Brotherhood of Teamsters, AFL–CIO has been the exclusive
representative of all employees in the bargaining unit for pur-
poses of collective bargaining within the meaning of Section
9(a) of the Act.
6. By refusing to bargain with the Union since on and
after September 21, 1994, Respondent has violated Section
8(a)(5) and (1) of the Act.
7. The General Counsel has not proved that Respondent
engaged in any other violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Because of the Respondent’s egregious and widespread
misconduct, demonstrating a general disregard for the em-
ployees’ fundamental rights, I find it necessary to issue a
broad Order requiring the Respondent to cease and desist
from infringing in any other manner on rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 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.’’
ORDER
The Respondent, J.A.H. Carting Corp., Flushing, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about union
support; instructing employees to refrain from union activity
and to repudiate the Union; instructing its employees to tes-
tify falsely at a Board proceeding; promising employees a
raise if they repudiate the Union and testify falsely at a
Board proceeding; informing its employees that seeking
membership in the Union is futile; threatening employees
with adverse action and with discharge if they continue to
support the Union; threatening to sell the Company if the
employees support the Union; threatening its employees with
bodily harm if they do not testify in Respondent’s favor at
a Board proceeding; and informing its employees than an
employee has been discharged for joining the Union.
(b) Discharging employees because they join and support
the Union and because they testify truthfully at a Board pro-
ceeding.
(c) Refusing to bargain with the Union.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Dino Di Cesare and Jose Ralph Diaz immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of this decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.
(c) 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.
(d) On request, bargain with the Union as the exclusive
representative of the employees in the appropriate unit found
above concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding in
a signed agreement.
(e) Post at its facility in flushing, New York, copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Local 813, International Brother-
hood of Teamsters, AFL–CIO, or any other union and WE
WILL NOT inform you that employees have been discharged
for joining the Union.
WE WILL NOT discharge you for testifying truthfully at a
Board proceeding.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT instruct you to refrain from union activity
and to repudiate the Union.
WE WILL NOT instruct you to testify falsely at a Board
proceeding, WE WILL NOT promise you a raise to repudiate
the Union and testify falsely at a Board proceeding and, WE
WILL NOT threaten you with bodily harm if you testify truth-
fully at a Board proceeding.
WE WILL NOT inform you that joining the Union is futile,
WE WILL NOT threaten you with adverse action and discharge
if you support the Union and, WE WILL NOT threaten to sell
the Company if you support the Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for our employees in the bargaining
unit:
All chauffeurs and helpers employed by J.A.H. Carting
Corp. at its Flushing facility, excluding all office cleri-
cal employees, guards and supervisors as defined in
Section 2(11) of the Act.
1133J.A.H. CARTING CORP.
WE WILL offer Dino Di Cesare and Jose Ralph Diaz im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings, plus in-
terest.
WE WILL notify each of them that we have removed from
our files any reference to his discharge and that the discharge
will not be used against him in any way.
J.A.H. CARTING CORP.