Joseph Victori Wines, Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 469 (N.L.R.B. 1989)

JOSEPH VICTORI WINES
Joseph Victori Wines, Inc. and Local 1814, Interna-
tional Longshoremen 's Association , AFL-CIO.
Cases 29-CA-12050 and 29-CA-12105
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 22, 1987, Administrative Law Judge
Eleanor MacDonald issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel filed cross-excep-
tions and a supporting brief. The Respondent filed
an answering brief to the General Counsel's cross-
exceptions.
The National Labor Relations Board has delegat-
ed 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 1 and
has decided to affirm the judge's rulings, findings, 2
and conclusions and to adopt the recommended
Order.3
i In its brief, the Respondent has requested oral argument The request
is denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties
2 Both the Respondent and the General Counsel have excepted to
some of the judge's credibility findings The Board's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record
and find no basis for reversing the findings
The General Counsel has excepted to the judge's failure to find that
the Respondent unlawfully laid off Sharaz Edoo on September 26, 1985,
as a result of his union activities More specifically, the General Counsel
challenges the judge's credibility finding regarding Edoo and urges that it
be reversed The judge found that Edoo's testimony was strongly shaded
to the disadvantage of the Respondent and accordingly discredited those
portions of Edoo's testimony which are contradicted by more reliable
evidence In arriving at this finding, the judge noted, inter alia, that
Edoo's testimony differs from the affidavit he gave in this proceeding in
that his testimony was much more favorable to the General Counsel's
cases than was his affidavit The General Counsel submits that this find-
ing is in error and that Edoo's testimony should have been fully credited
We find that the judge's credibility finding regarding Edoo is supported
by the record A comparison of his affidavit and his testimony reflects a
number of inconsistencies which the judge specifically noted In addition
to these, the record reflects several others For example, Edoo's affidavit
states that on September 7, 1985, after Carlos Prior had asked Edoo if he
had signed a card for the Union, Prior said "OK" and left The affidavit
further states that Prior did not then go on to speak to other workers
However, Edoo testified that Prior went on to talk to other employees
and spoke to everyone in the plant Accordingly, we agree with the
judge that Edoo tended to shade his testimony and we affirm her finding
concerning Edoo's credibility
We further correct several inadvertent errors in the judge's decision
Although the judge at one point in sec II,A of her decision incorrectly
states that the Respondent's greatest sales in 1984 occurred in October,
she elsewhere correctly identifies that peak sales occurred in September
At sec II,D,2 of her decision, the judge incorrectly states that the layoff
took place on Friday, August 6, 1985, rather than on Friday, September
6, as elsewhere indicated in her decsion
3 In adopting the remedy recommended by the judge that the employ-
ees discriminatorily laid off be made whole for loss of earnings and other
benefits, we note the seasonal nature of the Respondent's business, and
469
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Joseph Vic-
tori Wines, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
the judge's recognition that a showing had been made that at some point
there would have been a layoff, in view of the gradual decline in sales
and the Respondent's prior layoff in October 1984 What effect this, as
well as the Respondent's installation of a palletizing machine, will have
on the Respondent's backpay and reinstatement obligations shall be re-
solved in compliance proceedings
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after January 1, 1987, shall be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to January 1, 1987 (the effective date of the 1986 amend-
ment to 26 U S C § 6621), shall be computed in accordance with Florida
Steel Corp, 231 NLRB 651 (1977)
Alison C. Fairbanks, Esq., for the General Counsel.
Arthur R. Kaufman, Esq. and Doroth Rosensweig, Esq.
(Kaufman, Frank, Schneider & Rosensweig, PC), of
Melville, New York, for the Respondent.
Anthony Thomas Scotto, Esq. (Bogucki, Dichiara & Scotto),
of New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was heard in Brooklyn and New York, New
York, on 16 days between 23 April and 4 September
1986 The consolidated complaint, issued on 29 Novem-
ber 1985, alleges that Respondent, in violation of Section
8(a)(1) and (3) of the Act, interrogated its employees, di-
rected its employees to refrain from union activities,
threatened its employees with discharge, and laid off and
discharged its employees. Respondent denies that it vio-
lated the Act and alleges that the layoffs were due to
economic considerations.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties in December 1986, I make
the following'
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation with a plant at
31st Street, Brooklyn, New York, manufactures and sells
alcoholic beverages. The parties agree, and I find, that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and that
Local 1814 , International Longshoremen's Association,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
i Certain errors in the record are noted and corrected
294 NLRB No. 35
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has engaged in the wine importing and
distributing business for a number of years. In 1984, Re-
spondent entered the wine cooler business by purchasing
the plant at issue at 31st Street , Brooklyn .2 The wine
cooler business is relatively new, commercially bottled
wine coolers having first been sold around 1981 and first
produced in New York State since 1984. In 1984, Re-
spondent began producing and selling "Calvin Cooler" in
assorted flavors and sizes of bottles . The equipment in its
plant was old and Respondent had no prior experience
with wine coolers. Respondent had to learn by trial and
error which of its flavors would be successful and to
what extent there would be a market for its products.
Respondent 's records show that in 1984 it had its largest
sales in September .3 Respondent laid off excess employ-
ees at the end of October 1984.
Although industry statistics through 1986 show that
wine cooler sales are highest in June, July, and August,
the sales experience of each wine cooler company de-
pends very much on the identity and the efforts of its in-
dividual distributor . Each producer employs a different
distributor and thus sales results are distinct for each en-
terprise . Further , in 1984 , Respondent 's greatest sales
were in October contrary to the industrywide experi-
ence . In 1985 , Respondent operated the plant with new
or improved machinery and techniques , and its work
force gained expertise Noubar Boursalian was engaged
as the new plant manager on 3 June 1985.
Changes were made in the plant and by summer of
1985, the plant was operating with two 12-hour shifts for
6 days a week excluding Sundays. The shifts began and
ended at 6 a m. and 6 p . m. About 35 rank -and-file em-
ployees were employed on each shift . The plant operated
by means of a production line with various machines to
wash , fill, cap , and box the bottles of cooler Employees
took the boxes filled with bottles of cooler from the pro-
duction line and n}anpally stacked them on pallets. In
August 1985 , a machine , called a palletizer, was put into
operation to perform this function ; this will be discussed
in greater detail below About 30 employees worked on
the production line per shift.
The plant , while not divided into formal departments,
contained a batching and mixing area where the cooler
was blended . About three to five employees worked at
mixing and batching per shift.
There was also a shipping area . The day supervisor of
this area was George Merritt ; about four hi-1o drivers
were employed here to load and unload trucks . At night,
Sergio Larrondo worked part-time to oversee the load-
2 Wine cooler is a beverage made by combining wine with sweeteners,
flavors, and chemicals Respoident's cooler is apparently carbonated.
Respondent 's records show the following numbers of cases sold in
1984
August 46,403
September 87,788
October 73,611
November 48,897
December 42,034
ing and unloading of trucks , with about three hi-lo driv-
ers.
The instant case arises out of two events which took
place at the plant during the first week of September
1985: (1) The Union 's organizing campaign , which was
conducted on the afternoon of Thursday , 5 September,
and continued during the day and night of Friday, 6 Sep-
tember ; and (2) the layoff of 10 day-shift employees at 6
p in. on 6 September and the layoff of the entire night
shift at 6 a.m on Saturday , 7 September.
Certain facts about these two events are not seriously
controverted.
The union organizers met with employee Sharaz Edoo
away from the plant on 5 September and discussed the
organization of the plant . Edoo signed an authorization
card . In the afternoon of that day , the union organizers
took up positions outside the plant and began talking to
employees . A group of employees congregated openly
with the union agents outside the plant after the day shift
ended at 6 p.m. Before 6 p.m., the Union also spoke to
arriving night -shift employees . Many employees signed
cards on these occasions . The Union made no attempt to
hide its organizing effort ; indeed , it even asked permis-
sion , which was denied , to go inside the plant . Union or-
ganizers introduced themselves to any supervisors they
happened to see around the plant , including Plant Man-
ager Boursalian . Respondent 's plant manager and Vice
President Jose Nodar were aware of the Union's cam-
paign from its inception on 5 September 1985. Indeed, on
either the first or second day of the campaign, Union
Agent Michael Porta told Boursalian the Union had
enough cards to file a petition.
It is not disputed that Respondent told certain day-
shift employees they were laid off at 6 p.m. on 6 Septem-
ber 1985 . Boursalian stood in the office while employee
Carlos Prior called certain employees in as they came up
to the tinreclock to punch out for the day; ' Prior told the
employees in Spanish that there was no more work for
them. Some employees who worked in shipping were
given the same information by Merritt.
After the night -shift employees concluded work at 6
a.m. on Saturday , 7 September, they were laid off as
well Boursalian was there and LeRoy Dixon made the
announcement in English while a Spanish -speaking
worker translated.
The Union filed a petition on 10 September 1985.
B. Credibility of Witnesses
1. General Counsel's witnesses
A large number of witnesses testified in support of the
General Counsel 's allegations . I find that some of these
witnesses were not reliable and I shall not credit their
testimony where it is contradicted by more reliable evi-
dence. Jose Luis Diaz testified that he completed and
signed his own union authorization card ; the evidence
shows that Diaz did not complete the card Diaz uncon-
vincingly and implausibly testified about his ability to un-
derstand a phrase spoken by Supervisor George Merritt
in English when it was clear that he could not repeat
anything else in English . I shall not credit the testimony
JOSEPH VICTORI WINES
of Jose Luis Diaz. However, Diaz' testimony that Carlos
Prior asked him if he had signed a union card is consist-
ent with Prior 's own testimony as will be seen below; I
shall credit this portion of Diaz' testimony.
Jose de Jesus testified as to unlawful statements alleg-
edly made by a manager, but he was unable to state con-
vincingly whether the individual was Vice President
Jose Nodar or Plant Manager Noubar Boursalian. His
testimony differed in a material respect from his affidavit
given to a Board agent and his testimony was shifting
and contradictory. I shall not credit the testimony of
Jose de Jesus.
Francisco Fermin gave implausible , seemingly fabricat-
ed testimony about the completion of his union authori-
zation card His willingness to testify inaccurately ren-
ders all his testimony suspect. Thus, I shall not credit
Fermin's testimony that Carlos Prior told him he would
be fired for signing a union card and later fired him for
signing the card. However, Fermin's testimony that
Prior asked him if he had signed a union authorization
card is consistent with Prior's own testimony; I shall
credit that portion of Fermin's testimony.
Ramon Mejia testified that Prior interrogated him, told
him he could be fired for signing a union card, and then
told him he was fired because he had signed; however,
Melia did not include these blatantly unlawful statements
in his affidavit given soon after he was fired. Moreover,
he was uncooperative on cross-examination. I shall not
credit Mejia's testimony. However, based on Prior's ad-
mission, I credit Mejia's testimony that Prior asked if he
had signed a card.
Joel Zelman gave admittedly fabricated testimony
about the circumstances surrounding his signing of a
union card, his testimony contradicted his affidavit in
several material respects, and he was uncooperative on
cross-examination . I shall not credit Zelman 's testimony.
Dennis Guerrero was uncooperative and evasive on
cross-examination by counsel for Respondent He could
not recall the names of the supervisors who allegedly
made unlawful statements to him and his testimony dif-
fered from his affidavit in a material respect. I shall not
credit Guerrero's testimony.
Wahid Bacchus testified for the General Counsel. Bac-
chus admitted that he initially withheld his cooperation
from the General Counsel because he wanted certain
help from Respondent. This willingness to refrain from
supplying evidence based on financial considerations
makes all of Bacchus ' testimony suspect. In addition,
some of Bacchus' testimony is implausible and contrary
to the testimony of other witnesses. I shall not credit
Bacchus' testimony.
Jose Ramos testified for the General Counsel. Ramos'
testimony was highly implausible, was not supported by
the testimony of any other witness, and was contrary to
certain uncontested facts. I shall not credit the testimony
of Ramos.
Carlos Mora testified for the General Counsel. His tes-
timony was full of contradictions, and I am convinced
that he had no recollection of the material events. I shall
not credit the testimony of Mora.
Sharaz Edoo testified for the General Counsel. Edoo
was the employee responsible for calling the Union to
471
organize Respondent 's employees . Edoo's testimony dif-
fered from his affidavit given to a Board agent in that his
testimony was much more favorable to the General
Counsel's case than was his affidavit given soon after the
relevant events took place. Edoo testified as to matters
which it appeared he could not have heard or observed
or which he could not have understood because they
were spoken in Spanish. I am convinced that Edoo's tes-
timony is strongly shaded to the disadvantage of Re-
spondent, and I shall not credit those portions of his tes-
timony that are contradicted by other more reliable evi-
dence.
Michael Porta, the union delegate in charge of the or-
ganizing campaign at Respondent 's plant , testified for the
General Counsel. Porta testified to an alleged unlawful
statement made by Sergio Larrondo to several workers
on 5 September 1985 at 10:30 p.m., but this statement
was not in Porta's affidavit given to a Board agent on 29
October 1985 . It is implausible that a union organizer
would have heard an unlawful statement and not recalled
it a few weeks later when giving a sworn affidavit. In
addition, Porta testified to another alleged unlawful
statement by Larrondo to Edoo on 6 September 1985 at
10:30 p.m., yet Porta's affidavit states that he left the
plant at 8 p in. on that day. There was obviously some
confusion in Porta's mind about threats made at 10:30
p.m.; I am convinced that Porta had no clear recollec-
tion of who made the threats or when they were made.
Therefore, I shall not credit those portions of his testi-
mony.
Tony Tatum testified for the General Counsel. He had
a truthful demeanor, did not contradict himself, and gave
his evidence in a forthright, cooperative manner. I shall
credit Tatum's testimony. Pedro Arias testified for the
General Counsel. He had a truthful demeanor , did not
contradict himself, and was obviously cooperative and
forthright during cross-examination. I shall credit Arias'
testimony. Nestor Nova testified for the General Coun-
sel. He gave his evidence in a forthright and cooperative
manner, and I shall credit his testimony.
Julio Martinez testified for the General Counsel He
tried to be cooperative on cross-examination and had an
extremely impressive demeanor as a truthful witness.
There was some confusion in Martinez ' testimony but I
attribute this to difficulties involved in the translation of
the questions and answers by the interpreter. Martinez'
testimony was in accord with his affidavit given to a
Board agent on 11 October 1985. I give no weight to the
fact that a questionnaire Martinez received at home and
filled out on 3 November 1985 with the help of a relative
was inconsistent with his affidavit; the lack of formality
and precision in the questionnaire process leads me to
conclude that the answers Martinez gave were not well
considered and should not be accorded any significance.
2. Respondent's witnesses
George Merritt, the warehouse supervisor, testified for
Respondent. Merritt was cooperative and forthright, and
I shall credit his testimony.
Bertram Silk testified for Respondent. He was a truth-
ful witness and I shall rely on his testimony.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jose Nodar is the vice president of Respondent. As to
several subjects Nodar's recollection was inexact or con-
trary to the documentary evidence. In these instances,
discussed below, I shall not rely on Nodar's testimony.
Noubar Boursalian, the plant manager, testified for Re-
spondent . Some of Boursalian's testimony about neigh-
borhood protests at the plant conflicted with the dates
on the documentary evidence and with the testimony of
Jose Nodar. Boursalian shaded his testimony about these
protests to favor Respondent' s case , and I shall not credit
it. Boursalian 's testimony about his method of choosing
people to be laid off was implausible and contradictory,
as will be discussed in detail below. Finally, I do not
credit Boursalian's testimony about alleged Supervisor
Carlos Prior.
Carlos Prior testified for Respondent to deny his al-
leged supervisory status and that he had made certain
unlawful statements to employees. Although Prior stated
that he did not assign work or direct the employees, he
also testified that he frequently told employees to clean
the plant, pick up debris, made sure that employees were
operating machines properly, and corrected their mis-
takes and recommended employees for specific duties on
the production line. Based on his contradictory testimo-
ny and his demeanor on the stand, I conclude that Prior
displayed a willingness to shade his testimony to benefit
his employer. Prior admitted asking employees if they
had signed authorization cards for the Union: when
asked about incidents with specific employees, he was
unable to recall the facts. I do not find that Prior is a
credible witness and I shall not rely on his testimony
where it is contradicted by more reliable evidence.
Sergio Larrondo testified for Respondent. He was an
obviously well-prepared witness. Larrondo was eager to
testify that he had no authority or discretion on the job,
often volunteering statements about his lack of authority
when such statements were not responsive to the ques-
tion before him. Larrondo also showed a reluctance to
answer questions on cross-examination by the General
Counsel and he was uncooperative. Finally, Larrondo's
testimony was inconsistent with that of George Merritt,
another witness for Respondent, on the subject of Lar-
rondo's duties and authority on the job. I shall not rely
on the testimony of Larrondo.
C. The 8(a)(1) Allegations
1. Allegations concerning LeRoy Dixon
Based on the testimony of Tony Tatum, I find that
LeRoy Dixon became a production supervisor on the
night shift in July or August 1985.4 Dixon was the only
person in charge of employees on the 6 p.m. to 6 a.m.
shift. If employees had problems, they went to Dixon.
Dixon changed job assignments on the production line.
Dixon compiled production figures for management. He
promoted competition in productivity between the night
shift and the day shift. When the night shift exceeded the
* Dixon did not testify to deny any of the allegations made about him
No witness for Respondent identified anyone other than Dixon as being
in charge of the night shift Although Day -shipping Supervisor George
Merritt sometimes worked late, he did not work 24 hours per day and, in
any case, he did not supervise production employees.
production of the day shift, Dixon personally treated em-
ployees to their night meal. Dixon was the supervisor
who laid off the night shift; because he spoke only Eng-
lish, Dennis Guerrero translated for the Spanish-speaking
employees. Dixon was paid $16/hour while the rank-and-
file employees were paid $3.75/hour.
I find that Dixon observed a group of 15 employees
talking to the union organizers outside the plant. Tatum
signed an authorization card for the Union on this occa-
sion . After he had signed the card, Tatum went back to
work. Later, Dixon came up to Tatum working at his
machine and asked if he had signed the card. Tatum said,
"yes." Dixon shook his head from side to side and then
walked away.
I find that Dixon's question was an unlawful interroga-
tion. Dixon was seeking specific information about
Tatum's membership. The interrogation took place
during working hours at Tatum's assigned machine.
There is no testimony that Tatum initiated a conversa-
tion about the Union. When Tatum affirmed his support
for the Union, Dixon shook his head from side to side.
This gesture means "no" and denotes disapproval. In
sum, Supervisor Dixon sought specific information
whether Tatum had joined the Union, and he indicated
disapproval when he obtained an answer. This action
interfered with Tatum's rights and coerced him in viola-
tion of Section 8(a)(1) of the Act. Rossmore House, 269
NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985);
Southwire Co., 282 NLRB 916 (1987) (asking employees
"extent" of support for the Union "could reasonably be
seen as a basis to initiate action against them").
2. Allegations concerning Carlos Prior
Julio Martinez and Pedro Arias were both employed
on the production line during the day shift from 6 a.m.
to 6 p.m. Both testified as to Carlos Prior's duties. Based
on their testimony, I find that Prior spent much of his
time as a mechanic while he repaired and maintained the
machines but that he also possessed supervisory powers.
Prior gave instructions to the employees on the produc-
tion line. If the production line was halted because of a
breakdown, he assigned other tasks to the idled employ-
ees such as cleaning , picking up debris, and the like.
Prior refused permission to employees who wanted to
leave early on the grounds that some other employee
would be absent. He granted employees the right to
leave early on several occasions. He told employees to
stop performing certain jobs on the production line and
switched them to other tasks. If employees lingered too
long at lunch, Prior called the employees back to work.
Prior was entrusted with keys to the plant.
Prior's own credited testimony also supports a finding
that he was a supervisor. Prior shared an office with Ed
Nesnick, the production manager . Prior had the author-
ity to ensure that machine operators were performing
their tasks properly and he told employees to correct
mistakes in their performance. Prior effectively recom-
mended to Plant Manager Boursalian that "Rafael" be
returned to operate the filler machine instead of remain-
ing at the labeling machine. In contrast with the
JOSEPH VICTORI WINES
$3.75/hour wage, received by the rank-and-file employees
at the plant, Prior was paid $20/hour.
.Prior and Boursalian both testified that whenever
Prior gave an order or gave any information to employ-
ees, it was at the direction bf Boursalian or else pursuant
to detailed instructions from Boursalian that rendered
Prior 's act routine . I have found above that both Prior
and Boursalian were unreliable and shaded their testimo-
ny to favor Respondent 's case . Thus, I shall not credit
their assertion that Prior was merely a conduit for Bour-
salian 's orders. Significantly , Production Manager Nes-
nick, Prior 's direct supervisor , did not testify at the trial.
Indeed , the record is bare of any detailed information re-
garding Nesnick 's duties and how they meshed with
Prior 's. This omission leads me to conclude that in fact
Nesnick and Prior both supervised the production em-
ployees. My conclusion is supported by the fact that
Prior said he spent 15 to 30 minutes a day with Boursa-
lian, but up to 4 hours a day with Nesnick , Were I to
credit Respondent 's version of the facts, I would have to
find that Plant Manager Boursalian made all decisions re-
garding employees , even the most minute ones such as
whether to grant a few hours off to one employee. This
version of the facts completely bypasses Production
Manager Nesnick, and I conclude that Nesnick was not
brought into the proceedings because his testimony
would not have favored Respondent's case.
Moreover, even if I did not find that Prior was a su-
pervisor, I would find that he acted as an agent of Re-
spondent . The record shows that most of Respondent's
production employees spoke Spanish and understood
English only slightly . Neither Plant Manager Noubar
Boursalian nor Production Manager Ed Nesnick spoke
Spanish, and Prior was used by management to convey
information and instructions to Spanish -speaking employ-
ees. Prior testified that he translated "everything" for
Boursalian and Nesnick . Prior was the one who gathered
information from employees; thus, he testified that he
canvassed the production employees to see if they
wanted to work on a Sunday . Prior stated that employ-
ees came to him with problems "many times." Employ-
ees asked him for more money and days off. Prior stated
that he took these requests to Boursalian and conveyed
the response to the employees . Prior was the one who
informed the day -shift production employees about the
layoffs. From the point of view of the majority of Re-
spondent 's rank-and-file employees , Prior was their only
conduit to management . They would have had no way
of ascertaining that any exercise of authority by Prior
was other than that delegated to him by management.
Clearly, Respondent placed Prior "in a strategic position
where employees could reasonably believe he spoke its
behalf." B. P. Custom Buildinq Products, 251 NLRB 1337
(1980).
The credited testimony of Martinez , Arias, and Nestor
Nova establishes that Prior interrogated them concerning
their membership in the Union . Prior admitted that he
asked a number of employees if they had signed authori-
zation cards . Nova stated that the day after he signed a
card , Prior asked him if he had signed for the Union.
Nova said , "no." Prior said, "those union business are no
good for you , that 's only for the purpose of taking your
473
money ." Prior had a list during this encounter , but Nova
did not read it.5 Arias stated that on the morning of 6
September , Prior asked Arias if he had signed a union
card . Arias said , "yes." Prior said the Union was "not
good " 8• Martinez stated that he signed a card for the
Union on 5 September outside the plant . On 6 Septem-
ber, Prior came up to him at the packing machine and
said , "you signed the card ." Martinez denied that he had
signed . Prior said he had list of those who had signed
and that all those would be "like this ." So saying, he
drew his finger across his throat as if to cut it.7 Martinez
stated that Prior then asked three employees standing
nearby if they had signed.8
Prior. asked the employees for specific information
whether they individually had joined the Union. To
Nova and Arias , Prior indicated his disapproval of the
Union . Prior confronted Martinez with the information
that he knew Martinez had signed a card and then
threatened him by a hand gesture indicating a cut throat.
Prior was the only member of supervision or manage-
ment in contact with the employees who spoke their lan-
guage and who could communicate with them . There is
no evidence that these employees were open supporters
of the Union or had initiated conversations about the
Union with Prior . Respondent thus violated Section
8(a)(1) of the Act by interrogating Nova and Arias and
by threatening Martinez.
D. The 8(a)(3) Allegations
1. Background
The General Counsel asserts that Respondent laid off
and discharged its employees on the day shift and on the
night shift because they joined and supported the Union.
In the alternative, the General Counsel asserts that the
layoff was premature and accelerated as a result of the
union organizing campaign.
Respondent explains the layoff on the day shift by the
advent of the palletizer machine and asserts that the
layoff of the entire night, shift was due to a downturn of
business after Labor Day.
Boursalian testified that customer orders were received
by the order department of Respondent at its Second
Street main offices. Every Wednesday or Thursday,
Boursalian received a production schedule at the plant
indicating the number of cases of wine cooler the plant
was to produce in the next 2 weeks beginning with the
next Monday . The schedule showed specific quantities to
be produced everyday. The schedule was prepared by
Joseph Umbach , the president of Respondent.9
According to Nodar , orders were usually filled within
2 weeks of their receipt.
5 Nova was not laid off
8 Arias was laid off
' Martinez was laid off
8 Although I have not generally relied on the testimony of Diaz,
Fermin, and Melia, I find based on their statements and Prior's admission,
that Prior asked each of these day-shift , employees whether they had
signed cards and that all three answered in the affirmative All three
were laid off
9 Umbach did not testify in the instant proceeding
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Boursalian, the production schedule in
July 1985 called for 18,000 cases per day. Boursalian
stated that after the first or second week in August 1985,
orders were not coming in as heavily as before. Boursa-
lian could not recall the number of cases per day re-
quired by the September 1985 production schedule He
said that it was "very low."
Nodar testified that by the end of August, Respondent
was producing 21,000 cases per day. He also testified
that in late August he met with members of Respond-
ent's sales department who told him that September
would not be as strong as August. After Labor Day,
Nodar stated he saw that orders "were not heavy" so he
decided to lay off the night shift on Friday, 6 September
Boursalian testified at great length that cases of coolers
were accumulating all over the warehouse adjacent to
the plant and on the sidewalks surrounding the plant. He
tried to show that this was true mostly in late August
1985. He also testified at great length about neighbor-
hood protests over the fact that goods were stacked out-
side the plant, and that the night-shift operation created
noise from the factory, arriving and departing trucks,
and loitering employees. Neighborhood activists called in
a number of environmental and law enforcement agen-
cies in an effort to curb Respondent's operations. Various
local politicians also responded to neighborhood com-
plaints by attempting to effect a change in the plant's op-
erations. Boursalian tried to show that these events were
concentrated in the last weeks of August and caused the
night shift to be laid off on 6 September. However, the
evidence shows that the neighborhood problems ran
throughout the summer of 1985 and that cases of wine
cooler were stacked outside the plant throughout the
summer as well. In addition, the testimony of Vice Presi-
dent Nodar, the manager who made the decision to lay
off, was that as long as he had orders to fill, no local au-
thorities or neighborhood activists would be allowed to
interfere with production and the operation of the night
shift at the plant. In the face of Nodar's testimony, I
cannot find that neighborhood protests had anything at
all to do with the layoffs at the plant.
Boursalian testified that in the last week of August
1985, Nodar told him orders were slowing up and that
"We're going to have to make a decision one of these
days." On Tuesday, 3 September, Nodar remarked on
the fact that men were standing around the floor due to
the advent of the palletizer. The two managers discussed
the fact that orders were slowing down and that they
would have to make a decision by Friday.
On Friday, 6 September, Boursalian and Nodar met at
Nodar's office at Second Street. Nodar told Boursalian
to shut the night shift down that day and to lay off 10
men from the day shift.
2 Layoff of the day shift
Plant Manager Boursalian testified that the palletizer
machine automatically puts a case full of wine cooler on
a wooden pallet. The machine performs a task that,
when manually performed by Respondent 's employees,
was done by six or seven employees . The testimony and
documentary evidence show that the palletizer was de-
livered to Respondent's warehouse in the summer of not an employee with long seniority
1985 but was not then in a condition to be operated. In
August 1985, Respondent engaged a repair service to put
the palletizer into operation. A technician spent 2 weeks
at the plant fixing the machine and adjusting it so that it
would function as part of the production line. The tech-
nician was on the premises for the last 2 weeks of
August; he traveled home to Alabama on Saturday, 31
August. The next Monday was Labor Day, and the
layoff took place on Friday, 6 August.
Boursalian testified that he did not lay off any of the
men who had been filling pallets as soon as the palletizer
machine was actually in operation because he wanted to
be sure the machine worked properly. Boursalian stated
that he kept the men 1 week extra as insurance in case
the machine broke down and pallets once more had to
be loaded manually.
According to Boursalian, on Tuesday, 3 September, he
and Vice President Nodar discussed the fact that men
were standing around idle because of the installation of
the palletizer. Nodar told Boursalian to lay off 10 men
from the day shift. Boursalian decided to lay off 9 em-
ployees; he discharged an employee named Roberto
Velez. Velez worked in quality control and, according to
Boursalian, he was fired for incompetence.
On the basis of the record before me, I do not find
that the discharge of Velez was unlawful. Respondent's
witnesses testified that Velez was discharged for incom-
petence, and the General Counsel produced no evidence
to counter this testimony. Thus, I find that Velez was
discharged for incompetence.
According to Boursalian, he called the payroll office
to determine the nine least-senior employees on the day
shift However, after obtaining the information, Boursa-
lian made exceptions in six out of the nine cases. Boursa-
han testified that six employees who were lowest in se-
niority were not laid off for various reasons:
(1) Nestor Nova knew which labels had to be
supplied to the production line.
(2) Rene Sanz was trusted to check that no pilfer-
age took place while loading, and he was related to
Boursalian's nephew.
(3) Juan Torres was learning to operate the palle-
tizer.
(4) Luis Castillo was learning to operate the pal-
letizer.
(5) Sharaz Edoo mixed batches in the syrup
room.
(6) Jose Rodriguez had worked for the company
before he quit and was rehired on 30 August
1985.10
The explanations given by Boursalian are not very
convincing. As to Nestor Nova , Boursalian testified that
he had received no specialized training but that "on oc-
casion" over the course of 2 or 3 days, Boursalian had
shown him where labels were kept. Although Respond-
ent urges that there are a great variety of labels and that
it is difficult to distinguish among them, a careful reading
10 Boursalian testified that Rodriguez was considered a "rehire" and
JOSEPH VICTORI WINES 475
of the record shows that Nova performed a very simple
task. Nova, was paid $3.75/hour. He denied joining the
Union when Prior interrogated him. As to Torres and
Castillo, Boursalian did not explain why they were re-
tained while Jose de Jesus, an experienced and skilled
palletizer operator on the night shift, was laid off the
same day. As to Jose Rodriguez, Respondent implies that
he was really a long service employee. However, Bour-
salian 's testimony shows that he was considered a rehire
and as such would normally have been treated as a new
employee with the lowest seniority in the plant.
According to Boursalian he decided which employees
would be laid off, and he gave Prior a list of the employ-
ees at about 5.30 p.m. on the production floor. Prior
called the Spanish-speaking employees into the office at
6 p.m. and told them they were laid off for lack of work
and would be called back if they were needed.
However, Julio Martinez, whose testimony I credit,
testified that Prior told him, "Julio, you're out of work,
you signed the card."
Boursalfan also testified that on the afternoon of 6 Sep-
tember, Prior told him that he knew some of the employ-
ees who had signed for the Union. Prior also said he
thought most of the employees had signed. Boursalian
recalled that Prior said Sharaz Edoo and Jose and
Diones Rodriguez had signed. These employees were not
laid off on 6 September. I find that this testimony is not
accurate. I have found that Boursalian shaded his testi-
mony to favor Respondent's position. As detailed above,
Prior admitted asking the day-shift production employees
if they had signed cards for the Union. Sharaz Edoo
denied to Prior that he had done so and there is no evi-
dence that Jose and Diones Rodriguez had joined the
Union. I am convinced that Boursalian inaccurately testi-
fied that Prior told him these three men were union sup-
porters to make it appear as if Respondent retained
known union members. Prior did not testify that he
named these three men to Boursalian. Significantly,
Boursalian was unable to recall any of the other names
supplied by Prior on this occasion
Respondent urges that the inference of unlawful moti-
vation is negated if it can be shown that not all union
supporters were discriminatorily laid off or if it can be
shown that some who were laid off did not support the
Union. This argument has no merit Fredonia Valley
Quarries, 272 NLRB 843, 847 fn. 23 (1984).
The day-shift employees laid off, not including Velez,
were: 11
(1) Pedro Arias who told Prior he had signed a union
card. Arias filled pallets, (2) Julio Martinez who was
confronted by Prior with the fact that he had signed a
card. Martinez did a variety of production work; (3)
Ramon Melia who told Prior he had signed a card. He
worked on the filler machine; (4) Jose Castellanos; (5)
Francisco Fermin who told Prior he had signed a union
card; (6) Juan Torres (Paco); (7) Jose Luis Diaz, a hi-lo
driver in the shipping department. Diaz signed a card;
I I Boursalian testified that he told George Merritt the names of the
three least-senior forklift drivers on the day shift and told Merritt to lay
them off
(8) Tyrone Brown,, a hi-lo driver in the shipping depart-
ment; and (9) an unidentified employee.
Boursalian testified that 2 weeks after the day-shift and
night-shift layoffs, he recalled three night-shift employees
to work on the day shift. Boursalian gave as his reason
that he had "forgotten" that these three employees had
worked on the day shift but had moved to the night shift
at Respondent's request sometime during the summer.
The' three employees were: (1) Ramdat Sambhu, a
batcher; (2) Bartolo Tejia, a forklift operator; (3) Alberto
Diaz, a labeling machine operator. Boursalian did not ex-
plain why three day-shift employees were not laid off to
make way for these three employees. Indeed, Respond-
ent seems to argue that six or seven employees were laid
off on 6 September because of the advent of the pelletiz-
ing machine and three more were added to this number
because three experienced night-shift employees were
transferred to the day shift. This argument does not com-
port with the evidence. The three night-shift employees
were laid off on 6 September when the entire night shift
was told of the layoff. Two weeks later, the three "expe-
rienced" employees were recalled to the day shift. I am
not convinced by Boursalian's lame excuse that he
"forgot" about these three employees. In all of Boursa-
lian's testimony about the day shift, he firmly recalled
that he was told to lay off 10 employees. If he had
indeed been instructed by Nodar to lay off 10 employees
and transfer 3 from the night shift, he would have done
so on 6 September and he would have testified to this
effect at every opportunity during the trial. I am con-
vinced that Respondent needed to lay off six or seven
employees because their work was being done by the
new machine. I am also convinced that Respondent used
this occasion to rid itself of union adherents Prior admit-
ted asking workers whether they signed cards and that
he knew who had signed. Further, employees freely
signed cards right outside the plant. Prior was admittedly
used as a conduit to management. I find that Prior in-
formed Boursalian of the names of suspected union sup-
porters and that these were chosen for layoff on 6 Sep-
tember. Because Respondent needed only to lay off six
or seven due to the palletizer, but had laid off more due
to the union drive, it then recalled three long-term and
"reliable" employees 2 weeks later
Respondent admittedly laid off six of nine day-shift
employees out of order of seniority Its reasons for re-
taining low-seniority employees in most cases are not
persuasive. Thus, none of these employees had skills that
could not quickly be learned on the job and all were
paid $3.75/hour. Two employees who were learning to
operate the palletizer were retained even though a fully
trained night-shift palletizer operator was laid off. Two
low-seniority day-shift employees retained had denied to
Respondent that they supported the Union. Finally, Prior
said to Julio Martinez, "you're out of work, you signed
the card." Based on my analysis above, I find that Re-
spondent discriminatorily selected day-shift employees
for layoff and that Respondent thus violated Section
8(a)(3) of the Act.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Layoff of the night shift
As outlined above, Nodar and Boursalian testified that
the night-shift layoff on 6 September was prompted by a
downturn in business. The evidence shows that produc-
tion schedules are sent to Boursalian every Wednesday
and that they call for specific daily production for a 2-
week period commencing the next Monday. Thus, the
production schedule for the week of 2 September would
have been sent to Boursalian on 21 August and again on
28 August. The production schedule for the week after
the layoff would have been prepared on 28 August and 4
September. Nodar testified that he met with the sales
staff in late August and was told September would not
be as busy as August. Nodar and Boursalian testified that
they discussed a possible layoff in the last week of
August.
The most convincing evidence of the fact that a down-
turn was expected would have been the production
schedules issued on 21 and 28 August. Although several
people received production schedules every week, Re-
spondent was unable to produce any of these at the trial,
explaining that they had been destroyed.
Thus, the alleged expected downturn must be evaluat-
ed in the light of all the other evidence. First, Respond-
ent hired five employees between 26 and 30 August.
That was the week immediately preceding the layoff
when, assertedly, Nodar and Boursalian had already dis-
cussed the possibility of a layoff after Labor Day. The
hiring of five employees does not support Respondent's
contentions about the layoff. Second, although Boursa-
lian and Nodar testified explicitly that they recalled that
the production schedules called for between 18,000 and
21,000 cases per day in August, they could not recall
what number of cases per day the production schedules
for September required. This failure to recall is extreme-
ly surprising in view of Respondent's contention that the
downturn in September caused discussions of a layoff to
take place in August and caused the layoff of 6 Septem-
ber. Surely if Nodar and Boursalian had discussed so ex-
treme a measure as the layoff of half the entire work
force because of a lessening of orders for September,
both men would have been fully conversant with the
extent of the orders for the relevant period. Both Nodar
and Boursalian purported to recall with specificity the
discussions preceding the layoffs but they could not
supply the vital detail supposedly justifying the layoff of
the night shift. There is no reason shown why the two
managers could recall figures for August but could not
recall figures for September. This lack of testimony seri-
ously undermines Respondent's contentions about the
reason for the layoff. Finally, those records that are
available do not fully support Respondent's contentions.
Respondent's monthly sales and production figures for
1985 are as follows.
Cases Sold Cases Produced
January 46,314 35,263
February 75,589 92,868
March 70,053 87,245
April 113,287 133,946
Cases Sold Cases Produced
May 165,883 142,885
June 324,475 316,301
July 425,094 422,219
August 498,173 515,481
September 279,293 260,849
October 181,447 157,491
November 91,797 70,825
December 136,297 135,980
These figures show the gradual buildup and waning of
the busy season in the summer of 1985. However, these
figures are not too helpful in analyzing Respondent's de-
fense that it decided on a layoff on 6 September because
of a decline in orders. The evidence shows that Re-
spondent's plant operated by filling orders within 2
weeks of their receipt. Thus, in deciding on a layoff for 6
September, Respondent's managers would have been
looking at orders received 2 weeks earlier and their
effect on the weekly production schedules. As noted
above, neither the production schedules nor the orders
were produced. Thus, instead of looking at the informa-
tion available to Respondent on 6 September , it is neces-
sary to draw inferences from other data which are avail-
able now. The production figures for September show a
sharp decline; this is to be expected due to the layoff of
half of Respondent's production force. However, the
comparative figures for sales show no clear precipitate
decline.
Using the figures made available by Respondent, and
bearing in mind that Respondent shipped and sold cool-
ers 6 days per week, in August 1985, Respondent sold on
the average of 18,450 cases per day. It produced on the
average of 19,091 cases per day. Daily production varied
from 14,494 to 23,869 cases.
In September, sales during the week of Labor Day
before the layoff averaged 12,622 cases per day. Produc-
tion averaged 16,546 cases per day. The week after the
layoff, Respondent sold 22,259 cases per day and the
second week after the layoff, it sold 13,345 cases per
day. Due to the layoff, however, production averaged
9037 cases per day during the 2 weeks after the layoff.
According to the testimony of Respondent's witnesses,
when Nodar and Boursalian thought about and then dis-
cussed the possibility of a layoff during the weeks of 26
August and 2 September, they would have had before
them figures showing expected shipments and sales of
about 12,622 and 22,259 cases per day over the next 2
weeks. These figures do not represent such a precipitate
drop in sales as would justify an immediate layoff, in
view of the fact that August sales averaged 18,450 cases
daily. Although Respondent's witnesses testified that
there was excess inventory by early September, Re-
spondent offered no figures or statistics to support this
assertion. Although Respondent's witnesses testified that
by late August, cases of coolers were stacked on the
sidewalk awaiting shipment, all the testimony taken to-
gether shows that this was normal and that there were
always cases of coolers stacked outside Respondent's
plant.
JOSEPH VICTORI WINES
I am persuaded that the motivating factor in the 6 Sep-
tember layoff was the union organizing campaign. The
General Counsel has met her burden by showing that the
night shift was laid off within about 48 hours of the com-
mencement of the Union's vigorous and open campaign,
after interrogations and threats and after Respondent's
managers were told the Union had enough signatures to
file a petition. Although Respondent has shown general-
ly that at some point there would have been a layoff
given the gradual decline in sales and given its prior his-
tory of laying off employees in October 1984, Respond-
ent has not shown that the layoff would have occurred
on 6 September 1985 even in the absence of the union
campaign. Orders were not shown to have declined pre-
cipitately and Respondent had hired five employees the
week before the layoffs. I find that Respondent acceler-
ated its decision to implement a layoff when it saw that
the employees supported the Union in significant num-
bers. Thus, I find that the layoff was due to the union
activities of the employees and was in violation of Sec-
tion 8(a)(3) of the Act. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); Hunter Douglas Inc., 277 NLRB
1179 (1985), enfd. 804 F.2d 808 (3d Cir. 1986); Corrugat-
ed Partitions West, 275 NLRB 894 (1985).
E. Layoff of Sharaz Edoo
Edoo worked from 2 p.m. until various hours late at
night mixing wine cooler. Boursalian testified that he laid
off Sharaz Edoo on 26 September 1985. The asserted
reason for the layoff was that Edoo was no longer
needed because the night shift had been laid off and
there was too little work for him. Edoo's timecards show
that in the 3 weeks following the layoff, he worked 27-
1/2 hours, 36-1/2 hours, and 32-1/2 hours.
Edoo testified that on 26 September 1985, he was laid
off by Nodar who reproached him for being responsible
for the layoff of so many employees due to their union
activity. There is no other evidence that Respondent
knew of Edoo's activities in bringing in the Union. In
fact, Edoo testified that he denied any union involve-
ment to Prior. Nodar denied making any statement to
Edoo about the Union I have found that Edoo tended to
shade his testimony and that, in some respects, Nodar's
testimony was inaccurate. I have also found that Boursa-
lian's testimony was inaccurate. Thus, all three of these
witnesses are somewhat unreliable. Because the General
Counsel has the burden of proof, and because Edoo's tes-
timony is unconvincing, I do not find that the General
Counsel's burden has been met as to the discharge of
Sharaz Edoo.
F. The Offer to Recall
Respondent urges as further proof of its good faith in
carrying out the layoffs that it recalled the employees for
the 1986 busy season . Nodar testified that he told his sec-
retary to send telegrams to the laid-off employees in
1986. However, Nodar's testimony and the documentary
evidence cannot be reconciled. A number of telegrams
were sent to some (but not all) laid-off employees on 10
March 1986 by the law firm that then represented Re-
477
spondent.12 The telegrams stated "Joseph Victori has a
job available for you to come back to work immediate-
ly." Employees were requested to telephone Nodar by
14 March 1986. Similar telegrams were sent out on 13
and 24 March, with later telephone dates. Then, on 28
March, telegrams were sent to a few workers, stating,
"We have been unable to contact you by telephone. If
you are still interested in working with us, please report
to work at the plant on Tuesday, April 1, 1986, at 12
noon." A few other telegrams were sent to employees,
apparently confirming that some workers had indicated a
desire to return to work. Nodar testified that after the 6
September 1985 layoffs, no employees were hired until
May 1986, when the busy summer Season was to begin
again. Nodar stated the telegrams were sent in March
"to see if they were going to be available to come back
to us." Nodar testified, "I just wanted to have an idea of
how many people were willing to come back to. work
for us so we can plan our night shift again." The tele-
grams were sent in order "to alert people."
From Nodar's testimony, it is clear that Respondent
wanted to hire workers for the busy months of the
summer of 1986 and was only testing the future availabil-
ity of the workers when it sent them telegrams in March
1986. The telegrams were not an immediate offer of rein-
statement, despite the language on their face Thus, the
fact that Respondent sent these telegrams does not show
its good faith in trying to rehire laid-off employees, and
the telegrams are not relevant to the good faith of Re-
spondent in making the layoffs in September 1985. I note
further that Respondent's managers were aware that
most of the laid-off employees spoke Spanish and that
Respondent used Spanish-speaking employees to translate
instructions on the shop floor. Yet all the telegrams were
sent in English. Although the telegrams instructed the
employees to call Nodar himself, Nodar testified that he
told his secretary, Flora, to follow up on the offers of
recall and speak to the employees. Flora does not speak
Spanish.
Julio Martinez testified that, although he did not re-
ceive a telegram from Respondent, he and his cousin Ar-
senio Martinez went to the plant to ask for their jobs
back on 26 March. The Union had asked them if they
received telegrams and Union Agent "Arturo" drove
them to the plant. Martinez and his cousin saw Prior but
the latter told them there was no work. Then Prior took
them to the manager, whom Martinez identified as
"Nova." 13 Noubar Boursalian said there was no work.
Finally, Prior told the two men that they were trying to
get him into trouble, "that we had said that they had
been fired because they had filled out a union card." On
1 April 1985, Martinez and his cousin again returned to
the plant to seek work. They saw Prior who told them
there was no work. These two incidents are further evi-
dence that Respondent did not make a good-faith offer
12 Only those employees named In the original complaint were sent
telegrams
13 Martinez is Spanish speaking It is clear from the record that by
"Nova" he meant "Noubar " Boursalian's last name was difficult for the
employees to pronounce and he was commonly known as "Noubar" in
the plant
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of immediate reinstatement to its employees in March
1986.
CONCLUSIONS OF LAW
1. By interrogating its employees about their member-
ship in the Union and by threatening its employees with
discharge if they joined the Union, Respondent violated
Section 8(a)(1) of the Act.
2. By discriminatorily laying off the following employ-
ees because they joined or supported the Union, Re-
spondent violated Section 8(a)(3) and (1) of the Act:
Joel Zellman Pedro Arias
Jose De Jesus Ramon Mejia
Richard Mena Francisco Fermin
Arsenio Martinez Ivan Gammie Donovan
Dennis Guerrero Julio Martinez
Harvey Lightburn Samuel Fanqui
Deodath Seojan Marcial Montero
Jose Diaz Tyrone Brown
Pedro Giraldo Gabriel Palacio
Khalid Hussain Guillermo Davila
Sajjiad Ahmed Rafael Valerio
Tony Tatum Ramdatt Sambhu
Muzhar Hussain Jaimram Hariram
Zafar Mahmed Jose Castellanos
Fausto Amigon Reuben Cevallos
Mushtaq Ahmed Marvin Campbell
Mario Abreo Gilberto Collado
Percio Gomez
3. Respondent did not violate the Act by discharging
Roberto Velez and by laying off Sharaz Edoo.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent having discriminatorily laid off its employ-
ees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits com-
puted on a quarterly basis from the date of layoffs to the
date of proper offer of reinstatement, less any net interim
earnings , as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
Respondent must remove from its records any mention
of the unlawful layoffs.
The General Counsel's request for a visitatorial order
is denied.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent, Joseph Victori Wines, Inc., Brook-
lyn, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating its employees about their membership
in the Union and threatening them with discharge if they
join the Union.
(b) Laying off its employees because they joined or
supported the Union.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to the em-
ployees named in paragraph 2 of the Conclusions of Law
to their former jobs or, if these jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority and other rights and privileges, and make them
whole for their loss of earnings and other benefits in the
manner set forth in the remedy section of this decision.
(b) Expunge from its files any references to the layoffs
and notify the employees that this has been done and
that the layoffs 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 pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its 31st Street plant copies in English and in
Spanish of the attached notice marked "Appendix."ib
Copies of the notice in English and Spanish 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 receipt 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, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
14 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
15 In the event that the Board's 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 Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
JOSEPH VICTORI WINES 479
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL " offer the following employees 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 other rights and
privileges previously enjoyed and WE WILL Make them
whole for any loss of earnings plus interest:
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
To refrain from the exercise of any or all such
activities
WE WILL NOT lay off our employees for joining the
Union or engaging in concerted activities.
WE WILL NOT interrogate our employees about their
union membership.
WE WILL NOT threaten our employees with discharge
if they join the Union.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
Joel Zellman
Jose De Jesus
Richard Mena
Arsenio Martinez
Dennis Guerrerod
Harvey Lightburn
Deodath Seojan
Jose Diaz
Pedro Giraldo
Khalid Hussai
Sajjiad Ahme
Tony Tatum
Muzhar Hussain
Zafar Mahmed
Fausto Amigon
Mushtaq Ahmed
Mario Abreo
Percio Gomez
Pedro Arias
Ramon Mejia
Francisco Fermin
Ivan Gammie Donovann
Julio Martinez
Marcial Montero
Tyrone Brown
Gabriel Palacio
Guillermo Davila
Rafael Valerio
Ramdatt Sambhu
Jaimram Hariram
Jose Castellanos
Reuben Cevallos
Marvin Campbell
Gilberto Collado
Samuel Fanqui
WE WILL remove from our records any mention of the
unlawful layoff of the employees.
JOSEPH VICTORI WINES, INC.