La Famosa Foods, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1986

282 N.L.R.B. 316 (N.L.R.B. 1986)

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
La Famosa Foods, Inc. and Local 27, Paper Prod-
ucts, Miscellaneous Drivers , Warehousemen and
Helpers, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and Eddie Nevarez and Bernardino
Vina Cepeda.
La Famosa Foods, Inc. and La Famosa Foods, Inc.,
Debtor in Possession and Eddie Nevarez and
Bernardino Vina Cepeda . Cases 29-CA-11560,
29-CA-11713, 29-CA-11713-2, 29-CA-
11713-3, and 29-CA-11713-4
28 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 4 April 1986 Administrative Law Judge
Robert T. Snyder issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
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 and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, La Famosa
Foods, Inc., Staten Island, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
The General Counsel filed exceptions only to the judge's failure to
find that the Respondent discharged, effective 13 July 1984, the four dis-
criminatees involved in this case, thereby violating Sec. 8 (a)(3) and (1) of
the Act.
The judge inadvertently stated, as noted by the General Counsel in his
brief, that Respondent's president , John Agosta, threw Union Business
Representative Robert Carrao out of his office on 8 August 1984. The
record shows that Agosta threw Union Vice President Pat Crapanzano
out of his office, not Carrao.
Patricia M. Bartels, Esq., for the General Counsel.
Norman D. Fiedler, Esq., of New York, New York, for
the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. These
consolidated cases were heard by me on 10 through 13
and 18 through 20 June 1985 in Brooklyn, New York.
The second consolidated amended complaint, which
issued on 9 April 1985, alleges that La Famosa Foods,
Inc. (La Famosa or Respondent) engaged in various acts
282 NLRB No. 52
violative of Section 8(a)(1) of the Act by threatening its
employees with discharge if they did not abandon their
strike, by offering and promising its employees increased
wages and other benefits if they would abandon their
strike and activity on behalf of Local 27, Paper Prod-
ucts, Miscellaneous Drivers, Warehousemen and Helpers,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Local 27 or the
Union) and, after the conclusion of the strike, by offering
and promising its employees reinstatement, wage in-
creases, and other benefits if they would abandon their
support of the Union. The complaint also alleges that La
Famosa unlawfully discharged four named employees be-
cause they engaged in union activities and, after subse-
quently reinstating two 'of them, Respondent harassed
and subjected them to more onerous terms and condi-
tions of employment and, finally, unlawfully discharged
them again in violation of Section 8(a)(3) and (1) of the
Act. The last discharge of these two employees was also
alleged to have violated Section 8(a)(4) and (1) of the
Act because it was motivated by their having given testi-
mony under the Act in support of charges filed by Local
27 in Case 29-CA-11560. By oral amendments, offered
and granted over objection during the hearing, it is also
alleged that the strike described above was converted by
the unfair labor practices into an unfair labor practice
strike, and that La Famosa unlawfully refused to rein-
state the four employees on the Union's offer on their
behalf to return to work at its conclusion. By answer
filed on 3 June 1985, and orally amended at the hearing,
Respondent denied the substantive allegations of the vio-
lations contained in the complaint and as amended at the
hearing.
On the entire record, including my observation of the
demeanor of the witnesses, and after careful consider-
ation of the posthearing briefs filed by the General
Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION, EMPLOYER, AND LABOR
ORGANIZATION STATUS
Respondent is a New York corporation with its princi-
pal office and place of business located at 201 Arlington
Avenue, Staten Island, County of Richmond, State of
New York (the Staten Island plant), where it is, and has
been at all times material, engaged in the wholesale sale
and distribution of cheese, flour, and related products.
During 1984, which period is representative of its annual
operations generally, Respondent La Famosa, in the
course and conduct of its business, purchased and caused
to be transported and delivered to its Staten Island plant,
foodstuffs and other goods and materials valued in excess
of $50,000, of which goods and materials valued in
excess of $50,000 were transported and delivered to its
plant by interstate commerce directly from States of the
United States other than the State of New York. -
On 27 February 1985 Respondent La Famosa filed a
bankruptcy petition under Chapter XI of the Bankruptcy
Act bearing Docket No. 185-50276-21 in the United
States Bankruptcy Court for the Eastern District of New
LA FAMOSA FOODS
'York, which petition at the time of°1earing was pending
in that court, and since that date has been continued in
possession as a Debtor In Possession (Respondent
Debtor) with full authority to continue operations and
exercise all powers necessary to the administration of the
business of Respondent La Famosa. By virtue of the
foregoing events, Respondent Debtor is, and has been at
all times material, a successor in bankruptcy to Respond-
ent La Famosa.
Respondent La Famosa and Respondent Debtor admit,
and I find, that they are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
The complaint alleges, Respondent orally amended its
answer to admit, and I find that Local 27 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Labor Relations History of Fontana d'Oro Foods,
Inc. and its Relationship to La Famosa
Prior to establishment of Respondent, its president and
chief operating officer, John Agosta, had been president,
chief executive, and owner of 50 percent of the stock
(his brother-in-law Angelo Guarnieri holding the other
50 percent) of Fontana d'Oro, Inc. (Fontana), which was
engaged in the same business later engaged in by La
Famosa, selling and distributing food products to pizza
stores in the greater metropolitan New York City and
surrounding areas. It operated from a principal place of
business a few doors from the location at which La
Famosa later began operations. Its complement of seven
employees all later became employees of La Famosa at
the time it began doing business, including Rocco Castel-
lano, a supervisory employee and the son-in-law of John
Agosta, and they continued in its employ into July 1984.
About 3 January 1983 a fire in the premises on the
floor directly above Fontana's resulted in heavy water
damage and the permanent cessation of Fontana's busi-
ness operations and, on 7 January 1983, Agosta's com-
mencement of the same business a few doors away under
the newly formed corporation La Famosa. Agosta owns
20 percent of Respondent's stock, his wife 40 percent,
and his four daughters, including Rosary (Mrs. Rocco)
Castellano, 10 percent each.
Separate complaints were issued against Fontana in
1981 in Case 29-.CA-9095 charging it with a refusal to
bargain with Teamsters Local 210 the recently certified
bargaining representative of its drivers and helpers, by
making unilateral changes in wage rates and, by its presi-
dent, Agosta, and other agents and supervisors, soliciting
employees to sign a petition to decertify Local 210 in
violation of Section 8(a)(1) and (5) of the Act, and in
Case 29-CA-9123 alleging that it refused to pay certain
benefits to an employee in violation of Section 8(a)(1)
and (3) of the Act.
These two complaints were settled by a single infor-
mal settlement agreement providing a remedy for each of
the violations of the Act alleged, not containing a nonad-
mission clause, approved 19 May 1982 by the Regional
Director for Region 29.
317
-On- 7 September 1982 a complaint was issued in Case
29-CA-9846 alleging that Fontana had violated Section
8(a)(1) and (5) of the Act by refusing to bargain with
Local 210 notwithstanding its agreement to do so in set-
tlement of the prior cases. On 4 February 1983, in 266
NLRB No. 25 (unpublished), the Board issued a Deci-
sion and Order finding that Fontana had violated the Act
as alleged, granting a Motion for Summary Judgment
filed by the General Counsel after Respondent Fontana
had failed to file an answer to the complaint and to re-
spond to a Notice to Show Cause issued by the Board in
response to the General Counsel's motion. The Board's
Order was enforced by the Court of Appeals for the
Second Circuit on 7 June 1983.
B. Union's Campaign and Subsequent Strike,
Respondent's Reaction, Including Alleged 8(a)(1), (3),
and (4) Violations
On 2 July 1984 Local 27, a different local union from
Local 210 but affiliated with the same International
union, obtained signed authorization cards from seven of
La Famosa's eight drivers and helpers. A ninth employ-
ee, Tony Olivia, was then on vacation. On the same day,
on receiving the agreement of the employees to seek
union recognition from their employer, Union Represent-
ative Robert Carrao spoke to Agosta in front of the en-
trance to the Staten Island plant. Carrao informed
Agosta that his employees would like representation
from Local 27 and Carrao had to have a letter of recog-
nition if they would recognize Local 27 as the sole col-
lective-bargaining agent for the people. Agosta would
not agree to sign such a letter or grant recognition. On
being informed of the results of his meeting with Agosta,
the employees determined to go, out on strike until La
Famosa recognized Local 27 as their exclusive bargain-
ing agent. The strike commenced 3 July 1984 and was
participated in by all La Famosa's drivers and helpers
with the exception of Olivia, who also stayed away from
Respondent's premises until just before the strike ended.
The striking employees carried picket signs and patrolled
in front of the Staten Island plant, the signs read,
"Chauffeurs Warehousemen and Helpers of La Famosa
Foods, 201 Arlington Avenue, Staten Island, New York
10303 Are On' Strike, Local 27 I.B. of T. 27 Union
Square West, N.Y. 10003 YU9-1771."
On 11 July 1984 the Union filed a petition for certifi-
cation of representative in Case 29-RC-6206 seeking a
unit including all production and, maintenance employees
including warehousemen, drivers, and, helpers employed
by La Famosa. Also on 11 July 1984 Respondent sent
mailgrams to the striking employees informing them that
if they did not return to work on 13 July they would be
terminated as of that day. Employees Jose Ruiz Gonza-
lez (nicknamed Chefo), Eddie Nevarez, and Bernardino
Vina Cepeda (nicknamed Manny) received copies and
gave them to Carrao at the picket line, but Jose Reyes
did not because he had moved and Respondent did not
have his current address, although he saw the mailgram
received by another striking employee. Less than an
hour later Respondent dispatched another set of mail-
grams to replace the first. These informed the strikers
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the previous mailgram was rescinded and should be
disregarded, and that if they did not report for work on
13 July 1984, they would be permanently replaced as of
the same day. The one employee who recalled receiving
this second mailgram, although counsel stipulated that it
was mailed to each of the eight strikers on 13 July, testi-
fied he thought it was the same as the first one.
Apparently in response to these mailgrams, and after
receiving them, employee John Radwan, one of the driv-
ers, abandoned the strike and later returned to work. Al-
though Agosta testified that John Radwan later came
back a week or so after sending the mailgrams , his name
first appears on Respondent's payroll for the week
ending 17 August after the strike ended.
At approximately the same time, about 2 weeks after
commencement of the strike, Stephen Cales, a helper,
also abandoned the strike but he did not return to work.
Gonzalez, Nevarez, Cepeda, and Reyes each testified
in a highly, consistent and corrobative manner to conver-
sations Respondent's supervisor Castellano and alleged
agent Jose Santiago held with them in a group on the
picket line, in front of one of their homes and, individ-
ually, at each of their homes except that of Gonzalez.
Respondent's vigorous cross-examination of each of them
failed to shake the essential nature of their testimony in
this regard.
During the second day of hearing, Respondent's coun-
sel acknowledged on the record that Rocco Castellano
had certain authorities and exercised indicia of a supervi-
sor within the meaning of the Act, not including the au-
thority to hire and fire,' and orally amended its answer
to admit the paragraph of the complaint that alleges his
supervisory status. (Tr. 345.) This stipulation and admis-
sion followed testimony by two employee witnesses who
described Castellano's direction of their work, his being
in charge along with Guarnieri of the warehouse in
Agosta's absence, his assignment of work tasks in the
warehouse and routes for delivery of the merchandise,
and his offers and promises to striking employees on the
picket line to return to work under certain conditions.
Castellano's status as husband of one of Agosta's daugh-
ters who owned 10 percent of Respondent's stock has
been noted.
In reliance on this concession, the General Counsel ex-
amined two more employee witnesses, and examined and
cross-examined President Agosta without adducing fur-
ther evidence concerning Castellano's supervisory status.
Then, at the conclusion of Castellano's direct examina-
tion during presentation of Respondent's defense, Re-
spondent's counsel moved to amend its answer to with-
draw its earlier concession and to now deny paragraph
7(b) of the complaint in which Castellano's agency and
supervisory status is asserted. That motion was denied on
grounds 'of prejudice and because its grant would also
excessively delay completion of the hearing. (Tr. 2374-
2375.)
' At the time, Respondent's counsel did not dispute the General Coun-
sel's taking note of the fact that during the representation proceeding, to
be discussed , infra, La Famosa stipulated that both Guarnien and Castel-
lano were supervisors in that they had the power to hire and fire
The General Counsel separately alleges that employee
Jose Santiago, a salesman and driver, was an agent of
Respondent acting on its behalf. Each of the four em-
ployees who testified discussed Santiago's role from time
to time in translating both Agosta's and Castellano's
work instructions and directions to them. Another of the
employees, driver Felix Guzman, also acted in this role.
Agosta spoke a little Spanish. Castellano, who dealt
much more frequently with the Spanish-speaking em-
ployees, Gonzalez, Nevarez, Cepeda, and Reyes, whose
understanding of English was very limited, did not speak
Spanish.
Gonzalez testified credibly that when the employees
asked Agosta for an increase in wages they did so in
Spanish through Santiago, who took their requests to
Agosta and returned to them with Agosta's response, in-
variably negative. Gonzalez also noted that the employ-
ees who relied on his translations of supervisory direc-
tions to them trusted Santiago in particular because of
the confidence Agosta had placed in him based on his
position as Agosta's oldest employee in terms of service,
his promotion to the position as the firm's salesman, and
his frequent and regular collections of money on behalf
of the firm.
A composite of the four employees' testimony shows
that within a few days to a week after the strike started
Castellano, accompanied by Santiago, approached them
on the picket line. Castellano, speaking in English with
Santiago repeating his words in Spanish, told the assem-
bled group that the Respondent wanted them to return
to work but without the Union, and if they did so they
would receive an increase in pay of $20 to $25, what
they had been asking for. The employees responded that
they would not return unless it was with the Union. Cas-
tellano again accompanied by Santiago approached the
striking employees on one or two more occasions during
the following few weeks, repeating his urging that his
father-in-law wanted them back inside, but without the
Union, and they would receive a raise and they would
have to sign a paper, not otherwise described but pre-
sumably renouncing the Union. On each occasion San-
tiago repeated Castellano's words in Spanish and the em-
ployees voiced their refusal to return without the Union.
The strike and picketing continued and Respondent
continued to operate with no appreciable decline in sales
although experiencing some difficulty in, obtaining sup-
plies from vendors who were now requiring cash pay-
ments on COD deliveries. Respondent operated with
Castellano, Guarnieri, and Santiago making the deliveries
and with several striker replacements in addition to
Radwan.
On 31 July 1984 a preelection conference was held in
Case 29-RC-6206 at which the parties executed an
agreement providing that the only employees eligible to
vote in the upcoming election were the eight drivers and
helpers who had struck on 3 July 1984. Thus, Respond-
ent had not "replaced" any of the strikers as it stated it
would do, effective 13 July, in its second mailgram. The
strike continued after entry of this agreement because, as
explained by Carrao, the people were being solicited by
management about returning back to work with an in-
LA FAMOSA FOODS
crease in wages if they would sign-some type ^ ^k^ter
disregarding the Union. This was information he had re-
ceived from the employees at the picket line after they
had been solicited by Castellano.
On 8 August 1984 an election was conducted among
Respondent's employees in the representation proceed-
ing. The Union won by a vote of five in favor, one op-
posed. After the counting of the ballots Carrao and
Union Vice President Pat Crapanzano meet with Re-
spondent's president, Agosta. At the meeting the union
representatives told Agosta they were discontinuing the
strike and made an offer on behalf of the employees to
return to work. They also requested that Agosta take the
strikers back in their order of seniority.
According to' Carrao, Agosta responded that because
the strike business had fallen off quite a bit and as it
picked up he would rehire the people back, to work. He
then indicated that George Moncado, a helper, would be
the first employee taken-back and that Stephen Cales, an-
other helper, who had abandoned the strike, would also
be reemployed.
Carrao recalled that inasmuch as Moncado was the
most senior helper, employees gathered at the plant fol-
lowing the vote count agreed on, and did not dispute, his
return to work ahead of the others.
According to Agosta, he told the union delegates2 he
would only take the people that he needed at that time
and that he would call the others as needed. Agosta testi-
fied under questioning by me that "Whoever was outside
I took." (Tr. 2109.) He explained this to mean that he
took back the people who were standing outside in front
of the door. Agosta swore that the few people who were
there were Tony Olivia, Rolando Folgar, and George
Moncado. In fact, as Agosta had earlier explained under
questioning by the General Counsel, on the occasion of
the conclusion of the strike and the Union's offer on
behalf of the employees to return to work on 8 August
after the election had been held, he informed Crapanzano
that he wanted and had work for George Moncado,
John Radwan, Rolando Folgar, and Steven Cales.
Among these named individuals, and including Tony
Olivia, who Agosta later described as having been called
back to work, only George Moncado had remained on
strike and picketed for the full 5 weeks. As noted earlier,
Radwan had abandoned the strike, thereafter had been in
contact with Agosta, and showed up on Respondent's
payroll for the week ending 17 August. Folgar was an
employee who had been terminated the previous 30
April, apparently 'because of a drinking problem. His
name first reappears as a regular employee for the week
ending 7 September 1984. Olivia, on vacation earlier
when the strike started, had come to the facility before
the end of the strike, had never participated in it, and
was returned to Respondent's payroll in the last week of
the strike when he worked 49.5 hours. Agosta acknowl-
edged that Olivia had an arrangement with him permit-
ting Olivia to work a while and then leave his employ
for weeks or longer at a time. In fact, after the week
3 Apparently, Agosta was responding by this time only to Crapanzano,
because, as Agosta exclaimed on the record, "I threw him out," meaning
Carrao, after having referred to Carrao as a criminal.
319
eadilig' 17 August ,1984, Olivia's name does not thereafter
appear on Respondent's payroll until the week ending 7
September. Cales abandoned the strike and never re-
turned to work. He did not respond to Agosta' s mail-
gram to return to work on 13 August Yet, Agosta con-
tinued to hold a place open for him, in preference to the
strikers, except for Moncado, well after the conclusion of
the strike.3
The alleged discriminatees, Gonzalez, Nevarez,
Cepeda, and Reyes each testified that they had all been
waiting outside of Respondent's plant for the conclusion
of the meeting between the union agents and Agosta fol.-
lowing the election, but that, as against Agosta's claim,
neither Olivia nor Folgar was present during or immedi-
ately following the conclusion of that meeting. When
later pressed by the General Counsel, Agosta could not
remember if Gonzalez and Reyes were present in front
of the plant when he went outside to select employees
for recall, and he believed Cepeda was not there and he
did not see Nevarez.
When Cales did not respond to a mailgram to report
on 13 August, no one else was hired for the place re-
served for Cales. Agosta explained that he and his son-
in-law Castellano were used to doing the work as helper,
so they did it themselves. Agosta added that business
was going down, but that response did not explain the
offer of a job as helper to Cales.
In spite of Agosta's promise to recall the other em-
ployees as needed, made on 8 August, he never recalled
Gonzalez or Reyes, and did not recall Cepeda and Ne-
varez to employment until more than 5 months later, in
the latter part of January 1985, with the adverse conse-
quences to these two employees to be described and dis-
cussed, infra.
Certain alleged events transpired following the ending
of the strike that, if credited, go a long way in explaining
Respondent's refusal and failure to reinstate any of the
four alleged discriminatees after 8 August and to only
offer different employment to two of them months, later.
Sometime in late August or early September 1984, Ne-
varez testified that Jose Santiago , who lived in the
Bronx, drove to his house on East 12th Street in Manhat-
tan, New York City, and approached Nevarez in front of
his house. Santiago informed him that the owner of the
Company wanted them back and he would give them
money, he did not say the amount, but that he did not
want the Union.
According to Gonzalez, Reyes, and Cepeda, sometime
in September , Santiago came by in his car to see Reyes
at his home on Staten Island, about 20 minutes drive
from Respondent's Staten island plant. At the time, Gon-
zalez, Reyes, and Cepeda were sitting on Cepeda's car
and chatting in front of Reyes' house. Santiago told them
that the boss wanted them back but without the Union
and the boss would raise their pay. The three employees
rejected this overture, telling Santiago they would not
3 A New York State Unemployment Insurance Division form signed
by Agosta or an agent in November 1984 shows Cales failed to report for
work after having being informed by the State Division at Agosta's initia-
tive that work was available for him. Cales application for unemployment
benefits was opposed by La Famosa.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return without the Union, Cepeda, in particular, recalling
that they told Santiago he should not bother them any-
more.
Cepeda also testified that during the same month,
probably before the incident just described, Santiago had
visited him at his home on Staten Island. In the presence
of his ' wife, Santiago told him that the boss said if he
would return, the boss would give him $250. This
amount was a substantial increase over his prestrike
weekly pay of $200 for a 40-hour week. Cepeda' replied
that he wanted to see the boss, and the same day he vis-
ited the plant alone . When he arrived he saw Castellano
and Santiago. They did not invite him on to the prem-
ises , but conversed outside in front. Castellano told him
he would give Cepeda $250 because he was the person-
nel chief. Cepeda said he wanted to talk to Agosta. Cas-
tellano repeated that he was in charge of the personnel.
He said he would give Cepeda the job but Cepeda
would have to go to the Board and sign a paper re-
nouncing the Union. During the interchange, Santiago
translated for both participants. Cepeda would not agree
to such terms and Castellano told him to leave.
According to Nevarez, Santiago approached him again
in either November or December 1984 around the corner
from his Manhattan, New York City residence. At the
time Santiago appeared, Nevarez was with his wife, but
she quickly left. Santiago told him the owner wanted to
see them come to an agreement or some kind of an ar-
rangement . Nevarez said, "let's see what the rest of my
coworkers think." Santiago also told Nevarez that he
had told this to Felix Guzman. On 11 December Ne-
varez, accompanied by Reyes and Cepeda, went to the
workplace but Agosta was not there and Castellano told
them to return on Friday. On Friday, 14 December, they
returned, this time with Gonzalez.
Because Nevarez knew a little more English than the
rest he asked for Agosta. Castellano said the owner was
in but that he did not want to see them. Castellano ex-
plained that the Company was doing poorly and it was
their fault because they went out on strike.4 Nevarez
asked him, "if its so bad why do you have so many new
employees." (In the week ending 14 December, Re-
spondent's payroll discloses that in addition to Moncado,
Folgar, Olivia, and Radwan, a Jacob Khalil was also em-
ployed. Khalil's name first appeared on, the payroll for
the week ending 21 September 1984. According to some
of the Spanish-speaking employee witnesses, when they
returned to the plant on occasion after the strike they
saw new workers. In addition to Khalil, a Barry Blue
and a Joseph Kerrigan appear on the payroll for certain
weeks in November.)5
4 Two of the four employees, Reyes and Cepeda, recalled that Castel-
lano made reference to operating without a union.
5 Nevarez testified that when he was later recalled to work in January
1985 he saw other new employees, who he recognized as working at the
plant on 14 December 1984, including an individual named Price and an-
other named Carmello. The fact that these names do not appear on Re-
spondent's payroll is not determinative because Cepeda 's name does not
appear for the days in late January he was reemployed . Furthermore,
witnesses testified credibly that from time to time Agosta had offered to
pay them some money in- lieu of a wage increase off the books Finally,
Respondent 's payroll and other records including timecards, trip sheets,
Castellano replied that the new employees did not
work every day (not true for Khalil). When Nevarez
then asked, "Why don't you take us to do the work that
they're doing," he said, "No, that they were going to
stay the way they were."
On December 6, 1984, Local 27 filed the first charge,
followed later by charges and amended charges filed by
Nevarez and Cepeda on which the consolidated and
amended complaint was ultimately issued and which re-
sulted -in the instant hearing. That initial charge in Case
29-CA-11560 alleges the unlawful discharge of the four
alleged discriminatees, Nevarez, Gonzalez, Reyes, and
Cepeda (identified as Bernadino Vina), among others,
was about 13 July '1984, because the employees engaged
in a strike. By covering letter dated 6 December from
the Regional Director for Region 29, La Famosa was
mailed a copy of the charge and asked to submit its posi-
tion on the investigation. A copy of the charge was also
served personally at the Company's Staten Island plant
on 19 December. Then, on 18 January 1985, the first
complaint in Case 29-CA-11560 was issued, alleging,
inter alia, the strike from 2 July to 8 August 1984, the
promises of reinstatement and wage increases and other
benefits if the employees would abandon their union ac-
tivity, the 11 July threat to discharge and 13 July dis-
criminatory discharge of the four named employees, and
a hearing was scheduled for 11 March 1985, but was sub-
sequently postponed.
An affidavit of service of the complaint and notice of
hearing on La Famosa and the Charging Union shows
that on a first mailing to La Famosa by certified mail the
document was refused and returned to the Region on 25
January. On the same day that the complaint issued, 18
January 1985, Respondent sent mailgrams to Cepeda and
Nevarez instructing them to report for work on 21 Janu-
ary or be replaced if they failed to do so.
On 21 January 1985 Cepeda reported for work. Al-
though he, along with other employees, had punched a
timecard in the past, and the present complement of em-
ployees continued to do so, there was no card for him.
Castellano later handed him route papers that included
invoices for 15 stops in 4 boroughs of New York City;
the other 2 drivers, Radwan and Khalil, had assignments
of 7 to 8 stops each. Furthermore, Cepeda was told his
helper would be Price, who spoke no Spanish, although
three other helpers then working, Folgar, Moncado and
Carmello, all spoke English and Spanish. This assignment
was in stark contrast to the arrangement during Cepeda's
previous tenure when Agosta had assigned Gonzalez,
who is Spanish-speaking and knows some English, as Ce-
peda's regular helper. Cepeda speaks and reads, no Eng-
lish, and understands only a few words. Even Agosta ac-
knowledged that Cepeda needed the help of another em-
ployee on the truck who knew English.6, During Cepe-
and invoices appear to have been altered substantially, or to have been
incomplete.
B Agosta explained that he offered to rehire Nevarez at the same time
he made his 21 January offer to Cepeda because Cepeda "needs some-
body else Eddie knows English and he could . help guide the
man." (Tr 2091 and 2092.)
LA FAMOSA FOODS 321
da's employment before the strike, Cepeda was responsi-
ble for the cash receipts received from customers on
route and for accounting for them the next morning to
Agosta. For a considerable period of time Cepeda and
Gonzalez were assigned to a steady delivery route cover-
ing Brooklyn and Long Island.
That morning on 21 January the temperature was -2
degrees Fahrenheit. When Cepeda first arrived he en-
tered the premises through the heated office. The other
employees were gathered there, some having coffee. Cas-
tellano immediately sent Cepeda to the warehouse with
the command "Manny to the warehouse please." That
space is unheated, although it does contain a space heater
not then operative because the warehouse was not yet in
operation for the day. Even when operative it only pro-
vides a high blast of hot air in a narrow circumference,
likely to burn anyone directly in its path. Cepeda re-
mained there for 20 minutes without any particular as-
signment , while all other employees remained in the
heated office. At 12 noon all employees were sent home
because the severe cold had affected the operation of the
delivery trucks.
The following day, 22 January 1985, Cepeda again
found no timecard to record his hours and he was again
assigned the same non-Spanish-speaking helper although
the same three bilingual helpers were all available. His
route again included 15 stops, more than the other driv-
ers. On this day, in a deviation from the past practice
prior to the strike, Castellano instructed Cepeda that his
helper, Price, would collect and retain the collections
from customers overnight and, further, that Cepeda
would have to leave the truck and key with Tony Olivia
at Tony's house on his return from the deliveries.
Cepeda was not given any reason for these changes.
Prior to the strike, not only did Cepeda retain the pro-
ceeds overnight but it was also customary for him to
keep the truck overnight.
On 22 January, Cepeda completed the route deliveries
at 10 p.m, left the truck and keys with Olivia at his
house in Staten Island, and walked back to the plant
where he had kept his car. Although there was some dis-
pute about the time it took Cepeda to walk from Olivia's
house to the plant, it was acknowledged that the weather
was wet and extremely unpleasant, the ground was icy
from the extreme cold, and Cepeda ultimately estimated
the distance to be at least 6/10s of a mile.
The next morning again there was no timecard for
Cepeda. Castellano again assigned Cepeda the same
helper, Price, and the same number of stops, 15, this time
located not only in Manhattan, the Bronx, and Brooklyn,
but also including 6 in New Jersey. Again, the three
Spanish-speaking helpers were working that day. Cepeda
recalled having delivered to New Jersey only once
before, with Gonzalez, to a stop in Bayonne and they
had gotten lost. Gonzalez, on the witness stand, separate-
ly corroborated this single trip to New Jersey with
Cepeda. Neither Cepeda nor Price knew the locations in-
volved, which included Perth Amboy and Bayonne,
among others.
Given these concerns, Cepeda looked for Carmello,
who spoke English and Spanish, to explain to Castellano
that he did not know the route he had been given and
that he should be given Rolando Folgar or Georgie
Moncado as his helper. If Castellano could not resolve
this problem, he had to talk to John Agosta. Carmello
told Castellano that Cepeda wanted a helper who spoke
both English and Spanish, as Price did not know Spanish
and did not know the routes. Castellano told Cepeda
through Carmello that he would have to talk to Agosta.
Castellano took Cepeda to the office. Cepeda heard
Castellano tell Agosta in English about problems with
Manny about the routes. Cepeda than spoke with Agosta
in Spanish. Agosta asked what was going on. Cepeda
said, "The only thing is that I was never sent before to
that route to New Jersey, why do you send me now."
Agosta replied, "How do you mean to come here, to the
Labor Board, to testify, the same way you have to know
the routes in English too."7 At this point, Cepeda
begged Agosta to give him Georgie or Rolando as help-
ers because they were assisting somebody that knew the
routes and knew English and to give that assistance to
him. Agosta told him no, he was in charge. Cepeda
could no longer discuss the matter with him Agosta
then told Cepeda that for today there was no work for
him. He opened the door, and Cepeda left.
The following day, 24 January, Cepeda reported for
work and again did not find any timecard for himself. As
he was looking for it, Agosta, who was nearby, asked
Tony Olivia why was Cepeda looking there. As Cepeda
attempted to address Agosta in Spanish, Agosta spoke to
Tony who told Cepeda Agosta was not going to speak
anymore in Spanish with him. Through Tony, Cepeda
said he was reporting for work. Agosta, with Tony
translating, told Cepeda he was "trying" him and added,
"My friend, there is no more work for you. You didn't
want to do the stop yesterday." Cepeda responded, "The
one that [sic] didn't want was you. Because I wanted a
helper. I begged you." Then Agosta opened the door,
told Cepeda he should go home, and Cepeda left.
About January 1985, shortly after Cepeda's firing, San-
tiago, while at Reyes' home, told Reyes that he knew
Manny would be fired, he knew that they were going to
take them one by one, each of them, and fire them, and
not the court nor the Union could back them up.
Nevarez did not receive Respondent's mailgram offer-
ing reinstatement on 21 January until 22 January On
contacting La Famosa, he was told to report on 28 Janu-
ary.
Athough previously employed, Nevarez, who was
hired in January 1983, had spent substantially all his
time , after some early occasions of helping on the deliv-
Although the Board interpreter was clearly experiencing some diffi-
culty at this point in translating in coherent English prose Cepeda's an-
swers given in Spanish to the General Counsel's questions phrased in
English, it is readily apparent that what Cepeda was conveying was that
at this interview and exchange on 23 January, Agosta was expressing the
view that because Cepeda knew how to visit the Labor Board to testify
in support of the Union's charge in Case 29-CA-11560 he also had to
know the routes in English The element of sarcasm in Agosta's comment
could not have been lost on Cepeda In Cepeda's own words, "I under-
stand that he didn't like it because of [my coming here-to the Labor
Board-to testify] " (Tr 781 ) Prior to this conversation Cepeda had vis-
ited Region 29 twice for interviews and to provide affidavits in connec-
tion with the charge in Case 29-CA-11560 on which the complaint had
issued on 18 January 1985
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ery truck, as a warehouseman. In this capacity, and until
the strike in early July 1984, he unloaded the trucks that
delivered the merchandise from suppliers, loaded the
trucks for deliveries, in both cases using a hi-lo machine,
cleaned the warehouse, fixed broken boxes and contain-
ers, maintained and organized inventory, and, with the
assistance of warehouse helper Reyes, while the drivers
and helpers were out making deliveries, picked the mer-
chandise for the following day's stops. Gonzalez, who
had preceded Nevarez as the employee with primary
warehouse responsibilities, was the only other employee
who had regularly operated the large hi-lo machine. The
other, smaller machine which lifted and moved merchan-
dise on pallets, was generally operated by Reyes. Ne-
varez and Reyes, except when out making deliveries as
helper, worked a regular 8 a.m. to 5 p.m. shift unlike the
drivers and helpers who normally delivered until 8 p.m
or later.
Not only had Nevarez in the time before the strike, on
,paydays, and on a number of occasions told Agosta
among others that he liked being in the warehouse be-
cause he like to .organize, but he had heard from Jose
Santiago that the boss of the Company liked the way he
worked and how he had organized the warehouse. Ne-
varez viewed this as a form of praise about his work.
The multiple employee witnesses who addressed the
matter uniformally agreed that , either Castellano or
Angelo Guarnieri, Agosta's brother-in-law, directed the
loading of the trucks each morning and instructed the
helpers and drivers about what items should be placed
on individual trucks. The merchandise included boxes
containing large cans of tomatoes, 50- to 100-pound bags
of flour, 57- or 58-pound boxes containing 8 to 10 whole
cheeses, and pepperoni, pepper, and garlic in 3- to 5-
pound bags. The bags of flour and boxes of cheese and
tomatoes were, the heaviest items the employees loaded.
Nevarez testified, as did Reyes, that prior to the strike,
the heavy merchandise loading work was distributed
fairly evenly among all the employees.
On his return to the plant on 28 January 1985, Ne-
varez did not find his timecard. He believed they did not
have it ready. Jose Santiago came to him and told him to
go out on the truck as a helper to Tony. As Nevarez
then explained it, he said, "I thought when I return to
work again, when they called me back that I would be
given the same job that I had before." Santiago respond-
ed, "That [is] what the owner of the Company hoped I
would do, that when he gave me a different job-to see
if t would refuse to do it." Then Santiago said, "Don't
pay attention," and Nevarez said, "If I have to do it I'll
do it, and I wasn't going to refuse or leave my job."
Nevarez set to work loading the trucks along with Ro-
lando Folgar,, Price,, and George Moncado. He was not
assigned to his former job as warehouseman, he did not
prepare orders for stops for the next day, and he was not
permitted to operate the hi-lo. As Nevarez described the
matter, he went to touch the machine once and Angelo
told him, "no," that Angelo was the one in charge of it
now. Angelo was now using the machine for, among
other jobs, loading the trucks.
In the loading process, Castellano assigned Nevarez to
loading the heaviest items, the boxes of tomatoes and
cheese and large bags of flour, while the other three
helpers were given a much higher proportion of the
other, lighter produce to load, which weighed consider-
ably less in comparison. That day, 28 January, Nevarez
served as Olivia's helper, traveling to customers in New
Jersey and as far as Philadelphia, and not returning until
8 p.m., when Olivia let Nevarez off at the Staten Island
ferry for his trip home to Manhattan.
The following day, 29 January, Nevarez was again as-
signed as helper on Olivia's truck. He also noticed , again,
that he was given the heavier merchandise to carry and
load onto the trucks, in comparison with the other help-
ers.
On the next day, 30 January, Nevarez" reported to the
New York State Unemployment Compensation office to
report that he had started working for his old firm. Later
in the day, he received a telephone call from Christine
Agosta, a daughter of John Agosta and an office clerical
employee, who told him that he had to report to work to
Tony Olivia's house at 3 a.m. the'next morning to go on
a trip upstate to Albany, New York. According to
Agosta, "nobody wants to go on the road," except Tony
Olivia or John Radwan, sometimes. (Tr. 2144, 2316.)
That night, Nevarez telephoned Olivia about the trip.
Olivia told Nevarez that because they lived in different
'boroughs, Nevarez in Manhattan and Olivia in Staten
Island, Olivia would'get another helper who lived near
him. Nevarez also called Santiago. After discussing the
extremely early departure hour and the danger to Ne-
varez from traveling by ferry at that hour, Santiago ad-
vised Nevarez that he had no obligation to go.
The following morning, Thursday, 31 January, Ne-
varez reported to the Staten Island plant at his regular
worktime and did not find his timecard again . Castellano
asked why he had not gone with Tony. Nevarez ex-
plained that he had problems getting up so early. Castel-
lano said all right. Next, Agosta came to him and said if
the next, time he did not call earlier on a trip like that,
that he would be fired. That day as well as the next, 1
February, Nevarez was again conscious of having been
assigned to carry heavier loads, consistently, than the
other workers. On these two days, Nevarez continued to
go out on delivery runs as helper to a driver. On 31 Jan-
uary he had been out until I1 p.m. on a truck with Jose
Santiago.
Friday, 1 February, was the regular payday for the
week ending the prior workday. Nevarez calculated he
had 3 days' pay coming to him because he had 'not
worked 30 January. He was also concerned about receiv-
ing pay for the 12 overtime hours he had worked on the
3 days. When Nevarez received his pay, apparently at
the end of the workday, he asked Agosta if he had been
paid the 12 hours he had worked extra on overtime.
Agosta came over to him and said, "If you don't like
what I have paid 'you can leave." He added that he was
not going to pay Nevarez more because he did not have
a contract with the Union.8 Nevarez responded he was
8 La Famosa's practice was to pay time and a half for overtime hours
worked that only exceeded a 40-hour workweek. Nevarez' work hours
for the 3 days that week had only totaled 36 hours. It is apparent that
Continued
LA FAMOSA FOODS
not going to leave his job and he, knew where heenuld
go if Agosta was not going to pay him the amount he
was entitled to. At this point Agosta called Nevarez an
"asshole," an extremely intemperate form of address that
Agosta had never used with Nevarez -before. Nevarez,
upset at the unexpected way in which Agosta had sud-
denly become antagonistic personally and in stressing the
Company's continued freedom from union relationship or
obligations, and disturbed and distracted by the nasty
language, turned and walked out of the plant, inadver-
tantly taking both his paycheck and its net equivalent in
cash with him. He had both in his possession because of
a custom of employee endorsement and return of the
paycheck and retention of the cash provided at the same
time . Although Agosta shouted something after him, in
Nevarez' distressed state and anxiousness to leave Ne-
varez did not understand or heed whatever was said.
After Nevarez reported to work on Monday, 4 Febru-
ary, and got an assignment to load a truck, Castellano
first asked Nevarez for his pay envelope or check and,
when Nevarez said he did not have, it with him, told him
"Don't be stupid." To Nevarez' reply, "No, you're
stupid," Castellano started cursing Nevarez and using ob-
scenities . This conduct was in complete contrast to the
supervisor's generally civil behavior toward Nevarez in
the past. Castellano told Nevarez, to leave. Nevarez
asked, "Are you firing me?" At this point Agosta came
in and asked what was happening. Nevarez accused Cas-
tellano of firing him and Castellano denied it. Agosta
then asked about the pay envelope or check'and Nevarez
explained again he did not have it. Castellano continued
to accuse Nevarez of being stupid. By this time Nevarez
had become so upset with the ' nasty and vindictive per-
sonal remarks, now being made by both his bosses, that
he blurted out, "You are animals." At this Castellano and
Agosta started to laugh in his face. Nevarez immediately
left the plant in an unsuccessful attempt to contact Union
Representative Carrao by telephone about his problem.
Nevarez shortly returned to work. After a while Agosta
approached him with a paper containing block printing
in English and told Nevarez to sign it, Agosta did not
read what he had written and Nevarez does not, read
English. Nevarez testified he did not know what Agosta
had written. Nevarez refused to sign it. Agosta then told
him to leave. Nevarez asked if he was fired, and Agosta
said yes.
The paycheck that Nevarez had received, along with
an equal amount of cash, totaled $125.91 on gross earn-
ings for the week of $163.52. Nevarez retained and never
cashed the check and, at a later point in the hearing, the
check was handed over to Respondent's counsel on the
record.
Apparently, the very brief conversation between Ne-
varez and Agosta was in Spanish. If so, it was halting
and probably proceeded with gestures because of Agos-
ta's very limited facility in the language . Recall that
Agosta had refused to continue conversing with Cepeda
in Spanish on the day of his second discharge, and that
Nevarez was not aware of this practice, having worked a regular 40-hour
workweek much of the time prior to the strike, and Agosta made no at-
tempt to explain it.
323
-he ° failed 'to read of otherwise explain the writing to Ne-
varez. It states, "Received check for 125.91 Salary from
La Famosa Foods Inc. Eddie Nevarez."9
On 1 March 1985 Cepeda came to the plant to person-
ally serve Agosta with copies of the charges Nevarez
and he had filed in Cases 29-CA-11713 and 29-CA-
11713-2. This method followed Respondent's refusal to
accept service of the complaint earlier issued in Case 29-
CA-11560. When Agosta saw the papers, he threw them
on the floor, stamped on them, called Cepeda a "mother
fucking dirty pig," grabbed him by the arm and almost
banged the arm against the door before slamming the
door on Cepeda, While at the plant, Cepeda saw three
drivers, Olivia, Radwan, and Khalil, as well as four help-
ers, Moncado, Folgar, Carmello, and Price.
C. Respondent's Version of the Critical Exchanges
and Events and Credibility Resolutions
Agosta's version of certain incidents, such as his re-
sponse to the union representatives' offer on behalf of
strikers to return to work at the conclusion of the strike
after the election on 8 August 1984, has been described.
See infra.
Agosta took the witness stand and testified at length
both as a witness called by the General Counsel under
Rule 611(c) of the Federal Rules of Evidence and as a
witness in Respondent's presentation of its case. He
proved to be largely unreliable, self-contradictory, inter-
nally inconsistent on substantial points, prone to unre-
sponsive outbursts, and irrational. Early in his testimony,
while undergoing examination by the General Counsel,
Agosta testified that although he ultimately agreed on 31
July 1984 at a conference called on the Union's represen-
tation petition to an eligibility list of the eight striking
employees, he had initially sought inclusion of both
Tony Olivia and Rolando Folgar. Concerning Folgar, it
was Agosta's claim that during the strike he saw Ro-
lando out on the picket line but not carrying a sign.
After he was confronted with a pretrial affidavit he had
given on the investigation of the case in which he had
sworn that Folgar did not go out on strike and was away
from work a couple of weeks prior to the strike, and did
not come to work' or go on strike, Agosta then explained
lamely that at the time he gave the statement he had
probably neglected to say so but Folgar was there on
strike for the first day. Regarding' Folgar, Agosta even
took the position that an entry on La Famosa's payroll
records for the week ending 4 May 1984, on a page con-
taining only Folgar's name and a listing of 8.5 hours,,
reading "Terminated 4-30-84" (G.C. Exh. 24) was not
on the Company's records when they were produced
pursuant to trial subpoena for examination by the Gener-
al Counsel. A superficial comparison of this entry with
entries on other company payroll' and related records,
admittedly made by office clerical employee Emily Bont-
kowski during 1984, shows a strong likeness with the dis-
puted entry, and demonstrates the absurd lengths to
9 A duplicate carbon copy, which accompanies the original has the im-
print of other words and a variety of smudge marks Much, if it was the
very document which Nevarez was directed to sign, would have been
somewhat confusing, particularly to someone who is illiterate
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Agosta was prepared to go to avoid responsibility
for his actions in this case . It is also notable that at no
time did Agosta seek the inclusion of long-time driver
and salesman Jose Santiago in the unit of employees eli-
gible to vote in the election . The Company 's payroll
records show that Santiago , unlike the regular drivers
and helpers , did not have an hourly rate of pay but in-
stead received a weekly salary of $250.
Agosta disputed that Castellano or he assigned the
helpers to any particular truckdriver , and that the drivers
among themselves selected their own helpers , as against
the corroborative and credible testimony of Cepeda and
Gonzalez, among other employees,'in particular Cepeda's
description of the assignment of a non -Spanish-speaking
helper to him on his return to La Famosa in January
1985, as well as Nevarez ' testimony of his assignment as
a helper on Olivia 's truck on his return to employment
the following week. Furthermore , Agosta also asserted,
contrary to the consistent and reliable testimony of Ne-
varez and Reyes , among other employees ,, that the hi-lo
machine was operated by whoever was near , including
helpers, and was not assigned to any particular employee
and that it was usually up to the helpers to determine
whether they went out with a driver or stayed in the
warehouse in the morning.
Agosta's successive descriptions of his reasons for pre-
paring and sending the two sets of mailgrams on 11 July
1984 illustrate to a rare degree the inconsistences in his
testimony , which undermine any possibility of reliance
on his credibility as a witness . Under questioning by me,
Agosta testified that on 3 July (actually 2 July ) when the
union representative approached him on behalf of the
employees , seeking a recognition agreement , he attempt-
ed, without success, to contact his lawyer , Fiedler, who
was away and that it was not until 10 to 12 days after 3
July, on 14 or 15 July, that he was able to make contact
with him . Thus, on 11 July when Agosta sent the mail-
grams he had not yet been in contact with Fiedler. (Tr.
2349 , LL. 22-24.) After sending the first mailgram, ter-
minating the striking employees if they failed to report
for work in 2 days , Agosta recalled that at the urging of
his children , who did not want to have any problems
with the Union , he reviewed his office files in the Fon-
tana labor litigation and found language in a prior tele-
gram using the terminology "permanent [ly] replaced" in-
stead of discharged . This convinced him to send the
second set of mailgrams informing the strikers they
would be permanently , replaced if they did not return by
13 July . His lawyer subsequently confirmed he did the
right thing . Shortly following this testimony, Agosta was
compelled to agree that he had sworn to a statement on
2 January 1985 , in which he had described a completely
different scenario for preparing the second set of mail-
grams. In the statement, Agosta swore he had this mail-
gram drafted based on, the information given to him by
his lawyer . He wrote down what Fiedler told him to
send, but he lost the note and had the mailgram of 11
July drafted as stated . Later that day , on advise from his
lawyer , he quickly dispatched corrected mailgrams. This
complete turnabout on a crucial aspect of the case-an
alleged threat to ' discharge a whole complement of em-
ployees for exercising their protected right to strike
under the Act-renders Agosta 's attempted justification
for his full 11 July contact with them unbelievable and
strengthens the conclusion that his motivation for dis-
patching the initial mailgram was discriminatory. Agos-
ta's true feelings of abhorence for his employees ' strike
activity and the impact it was having on his business op-
eration was made clear in his first and uninhibited effort
to coerce their return to the workplace , whether his at-
torney or his search of old files later convinced him that
his first efforts were imprudent or illegal.
Another example of the ease with which Agosta nulli-
fied and contradicted statements previously made by him
on subject matter germane to this proceeding is present-
ed on the impact of a fire to premises located directly
above La Famosa's in the same building and resultant
water damage to the Company's inventory and ability to
operate in a solvent manner . Agosta testified that his in-
ventory had been declining since the strike, earlier seem-
ing to attribute this decline to a requirement imposed by
his suppliers after the onset of the strike of payment in
cash on deliveries. When asked on cross-examination to
agree that the reason for the decline in inventory was
due to the fire damage , Agosta replied in the negative.
Yet, in connection with the bankruptcy proceeding in
Federal court, Agosta filed an affidavit executed about
25 February 1985, in which he swore, inter alia, that
"the debtor [La Famosa] suffered a fire at his premises
which destroyed debtor's inventory and disrupted debt-
or's operation ." Furthermore, in the same affidavit
Agosta describes the strike as lasting 8 weeks, whereas in
truth it lasted 5 weeks. Also, Agosta admitted incorrect-
ly understating to the Bankruptcy Court the cost of exe-
cuting contracts for the lease of three delivery trucks by
three times the actual amount, to wit, $400 as listed, as
against actual lease figures totaling $1595 per month.
It was Agosta's position, that Jose Santiago was not the
interpreter for Spanish-speaking employees at La
Famosa. However, Agosta was not asked whether he or
Castellano used Santiago to pass along instructions or in-
formation to these employees . Agosta also denied that
Santiago had any authority to talk to the men on behalf
of La Famosa before or' during the strike. Neither did
Santiago report to him during the strike about discus-
sions he had with the strikers, nor did he ever tell San-
tiago to go to strikers' homes or to talk to the strikers.
Castellano , who also testified for Respondent , admitted
using Santiago only once as an interpreter with the strik-
ing employees. This was the occasion when Cepeda
drove up to the plant and spoke in Spanish. Castellano
asked Santiago to tell him what Cepeda said, which was
that if Castellano gave Cepeda $25 he would have noth-
ing to do with the Union.
Santiago was not called as a witness by Respondent,
having last worked for Respondent in the payroll period
ending 10 May 1985 , a scant month prior to the opening
of the hearing . Respondent did not deny that it possessed
Santiago 's address and could have contacted him.
I find incredible Castellano 's denial of any reliance on
Santiago or any one else as an interpreter (Tr. 2380),
other than the one occasion, to pass along instructions or
information to the Spanish-speaking employees , particu-
LA FAMOSA FOODS
larly when Castellano admittedly could not speak or :un-
derstand the language (Tr. 2377-2378) and the four dis-
chargees had little ability to communicate in English,
even though Felix Guzman acted as an interpreter on oc-
casion . I also reject the remarks Castellano attributes to
Cepeda. Given the strong union solidarity of the Span-
ish-speaking group of employees, manifested on each oc-
casion they were approached alone or in a group to
abandon the Union, and the continued and repeated un-
successful attempts by Respondent to split the workers
and break their resolve, I do not believe that Cepeda was
ready to renounce the Union on the occasion described.
If he was, why did not Castellano jump at the opportuni-
ty presented to immediately hire Cepeda? This was prob-
ably the occasion in September 1984, when, as Cepeda
testified, Castellano insisted on a union renunciation at
the Board which Cepeda promptly rejected.
Castellano insisted, in contrast with Agosta, that
Agosta spoke with the employees in Spanish, but limited
such interchanges to an occasional conversation. Castel-
lano also denied that he made offers of increased pay to
the striking employees, that he offered or reported that
his father-in-law, Agosta, offered to take them back
without the Union, or that he ever asked strikers to sign
a paper and thereby get an increase . Significantly, Castel-
lano also denied that he spoke with the striking workers
on the picket line or asked Santiago to speak with the
strikers. Five witnesses, the four alleged discriminatees,
and the Union's, agent Carrao testified to the contrary
and I credit them over Castellano's denial.
Although acknowledging that either Agosta or he go
over and assign routes to the drivers, Castellano, after a
leading question on the matter had been stricken, swore
that the assignment of helpers is worked out between the
drivers and the helpers themselves. (Tr. 2369.) This testi-
mony flies in the face of the testimony already alluded to
by all the dischargees, in'particular Cepeda and Nevarez,
concerning the assignment of helpers after their recall to
employment.
Agosta's and Castellano's testimony that Cepeda on
the day of his rehire, with the frigid cold weather, just
walked in to the warehouse without being sent there is
also not worthy of belief.
Castellano's blatant exaggerations and inaccuracies on
the witness stand lead inescapably to the conclusion, that
just as with Agosta, his testimony on the whole is un-
trustworthy and will not be credited when it conflicts
with that of the dischargees.
Agosta never directly addressed his failure to recall
Gonzalez or Reyes, although he seems to claim that his
business, which since February 1985 has been subject to
a bankruptcy proceeding in which Respondent has con-
tinued as debtor in possession, does not warrant the hire
of additional employees. Concerning Cepeda and Ne-
varez, it was Agosta's view that because Tony Olivia
was going to leave (although he was still driving at the
time of Nevarez' recall 10 days later) and Cepeda and
Nevarez had been around looking for work and talked to
his son-in-law, he decided to give them "a chance." (Tr.
2090.) Because Cepeda could not go around alone and
needed somebody else, he also hired Nevarez. Signifi-
cantly, on the day Cepeda and Nevarez were directed to
325
"return to work, Monday, 21 January 1985, Respondent's
sales had declined precipitately, from $80,000 during the
week ending 20 December 1984, to $11,000 for the week
ending 18 January 1985. According to Agosta's own tes-
timony, he was aware of sales figures for the prior week
ending Thursday on the following, Sunday morning, the
day before Cepeda reported, for work and the week
before Nevarez did so. In spite of this drop off, Agosta
nonetheless hired and kept both men in his employ until
each was separated for reasons unrelated to Respondent's
business fortunes. Economics thus played no role in their
rehire or termination and could not be reasonably assert-
ed as a defense to a recall of Gonzalez or Reyes, particu-
larly in light of Respondent's hire of other new helper
employees, Carmello and Price, as well as the ^ extended
offer to Cales and rehire of and disregard of Folgar's
drinking problem.
It was Agosta's testimony that Cepeda was assigned
only three stops on Wednesday, 23 January 1985, the
morning Cepeda protested his assignment of a non-Span-
ish-speaking helper and a route including, six stops in
New Jersey in towns unfamiliar to either of them. Re-
spondent's records do not support this assertion and, in
any event, are in such a confused state that firm conclu-
sions may not be made attributing stops to Cepeda,
Olivia, or other drivers for that day. (G.C. Exh. 11.)
What is clear is that Agosta does not address in his testi-
mony Cepeda's concerns about the assignment, of a
helper with whom he could not communicate and who
was as unfamiliar as he was with the stops assigned.
Agosta does "recollect" that Cepeda went to Jersey
three or four times before the strike. He also disputes Ce-
peda's testimony that he was directed to drop off the
truck and keys to Olivia the prior day. By seeking to
minimize the distance Cepeda had to walk late on a
frigid night to get from Olivia's house to his car at the
plant to drive home, however, Agosta has conceded that
Cepeda did deliver the equipment to Olivia, but asserts
that Cepeda did it on his own because he did not want
to leave his car overnight in front of the locked plant
gate and he could not place the truck inside the plant
gate that was locked after 7 p.m. Agosta does not explain
why he did not supply a key to the locked gate for em-
ployees, like Cepeda, who returned to the plant after de-
liveries much later at night, or why, as he did for
Radwan, he did not offer or provide Cepeda with funds
to place the truck in a locked yard near the plant. (Tr.
2153.)
On his last day at the plant, 24 January, Agosta asserts
he again assigned Cepeda only three stops, including two
in Bayonne, New Jersey, to which Cepeda responded by
saying he was refusing to work. This conduct resulted in
his termination. I do not credit Agosta on this assign-
ment, sequence of events, or conversation. It was the
prior day, as Cepeda explained, that he was told, after
Agosta refused to discuss Cepeda's concerns regarding
his route and helper, there was no work for him. The
next day, after telling Cepeda he was "trying him,"
Agosta discharged Cepeda. I fully credit Cepeda's ver-
sion of the events. I found him to be dignified, calm,
courteous, straightforward, and well able to retain his
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
composure even under the stress of a vigorous cross-ex-
amination . Significantly, although asserting that before
the strike he had a good relationship with all the work-
ers, including Cepeda, Agosta was not asked by Re-
spondent's counsel about any deterioration in that rela-
tionship after the strike. (Tr. 2157-2158.)
Respondent also introduced in defense of Cepeda's
charge, two decisions rendered by administrative law
judges of the unemployment insurance division of the
New York State Department of Labor, the second of
which, following a hearing at which for the first time a
witness for Respondent testified, along with Cepeda,
again , with the assistance of an interpreter, reversed the
earlier determination and, granting the Employer's appli-
cation to reopen the case, reversed and reinstated an ini-
tial determination effective 24 January 1985, disqualify-
ing the claimant, Cepeda, from receipt of benefits be-
cause of loss of employment due to misconduct. It also
reaffirmed an initial determination that Cepeda's certifi-
cation that he did no work in the week ending 27 Janu-
ary 1985 was a willful misrepresentation subjecting him
to the forfeiture penalty imposed.
Regarding Nevarez, although Castellano testified he
had not been told he was not permitted to use the hi-lo
machine, that response misses the point, not contested is
that Nevarez was not assigned back to his prior regular
work in the warehouse on his recall in January 1985.
Agosta, as well as Castellano, also disputed that Ne-
varez was ordered to load heavier merchandise. Yet,
Agosta would also ask the Board to believe that at one
time Nevarez declined a $10-a-week wage increase be-
cause he only got to keep $7 of it and he wanted $20.
Agosta also denied ever offering $15 to Nevarez off the
book. I credit Gonzalez and Nevarez that each of them
received a $15 raise "off the books." In Gonzalez' case it
was as a result of a request for a raise, but Gonzalez
became a helper moving from the warehouse and, on his
protest, he did not receive the increase. (Tr. 77.) Nevarez
also protested and was then paid the increase in his regu-
lar salary with all deductions. (Tr. 309.)
According to Agosta, on Nevarez' last Friday working
for Respondent (established as 1 February 1985), he was
given a check with the cash as was customary and took
both of them and ran away. Agosta called him aside and
told him you take one or the other. Nevarez said, "I'm
taking both" and went away. When Agosta protested,
Nevarez called Agosta names, an animal, a guinea "bas-
tard," and other obscenities. When Agosta asked why,
Nevarez replied because Agosta did not pay him over-
time . Nevarez explained that after 8 hours he was sup-
posed to pay him overtime. Agosta said, "I always paid
you overtime after 40 hours and that's it." Nevarez said,
"We'll see, I'm going to go to the Union." Agosta re-
plied, "Go any place you want, this is my policy over
here for years." The conversation had continued from
the plant office on to the street in front in the presence
of Agosta's daughters who worked in the office and
other employees who were getting paid. None of these
people allegedly present, a number under Respondent's
control, were called as witnesses to corroborate Agosta's
testimony.
The next workday, Monday, 4 February, Agosta saw
Nevarez early in the morning and asked him, "Why
don't you punch your card." Nevarez said the heck with
him and went into the warehouse. A second conversa-
tion took place about 9 a.m. between them in the ware-
house in front of everybody. Agosta asked Nevarez to
give him his check back or sign a receipt to which a
copy is attached. Nevarez said, "I'm not going to sign
anything," and he left. Agosta understood Nevarez went
to make a phone call and then returned about 10:15 a.m.
Agosta told him he had to sign a receipt or give him his
check back. Nevarez said he was not going to do any-
thing. Nevar'ez asked if he was going to be fired. Agosta
said, "I'm not going to fire you, the only thing is you
will come back here when you give me a receipt or give
my check back." Nevarez said, "You're firing me."
Agosta denied it and told Nevarez he could come tomor-
row if he just gave him the receipt or the check and he
would be satisfied. According to Agosta, he never saw
Nevarez again at the plant.
Castellano testified that he was present in the ware-
house when Agosta asked Nevarez if he would sign a
piece of paper he was holding or gave him back the
check. Nevarez refused to do both. They started arguing
and Nevarez called Agosta an animal and then walked
out of the warehouse. About 45 minutes later he re-
turned. Agosta approached him again and told him he
had to either sign the paper or return the check and Ne-
varez said he was not signing anything. Nevarez then
just left around 11:30 a.m.
In Agosta's version, he fails to acknowledge that the
conversation was taking place in Spanish or in a mixture
of Spanish and English with a high probability of limited
understanding on Nevarez' part. Agosta does not say he
read the receipt to Nevarez or whether he assumed Ne-
varez understood English. Yet it includes Agosta's expla-
nation of his overtime payment policy. It is also apparent
that Agosta has omitted completely any sense of his ex-
treme antagonism and baiting evident in Nevarez' recital.
Agosta's version is also inconsistent with Nevarez' re-
served sensibilities, permitting him to utter the restrained
expletive "animals" only when goaded beyond his break-
ing point by his bosses incivility and viciousness. The
profanity attributed to him by Agosta is completely out
of character for Nevarez as I came to judge it on the
witness stand. Agosta, finally, fails to take note of Ne-
varez' repeated statement that he did not have the check
with him, and thus could not on 4 February satisfy
Agosta's demand for its return, even if Agosta provided
Nevarez with that option-an option I conclude was not
made or made clear to Nevarez when he was shown the
writing.
Castellano's version omits entirely any comments of an
obscene and goading nature attributed to him by Ne-
varez as well as the discussion about whether Nevarez
was being fired, which both Nevarez and Agosta includ-
ed.
I credit Nevarez' version. Agosta, who goaded Ne-
varez from the first question Nevarez asked about his
pay, hardened even more in his attitude and behavior
toward Nevarez, ultimately placing Nevarez in an intol-
LA FAMOSA FOODS
erable position, only after Nevarez-demonstrated his"con-
tinued adherence to the Union by (1) stating he knew
where he could go if he did not get his proper pay, the
inference being unmistakable that this was to the Union
as Agosta understood and even acknowledged it in his
recital, and by (2) leaving to seek assistance in respond-
ing to Agosta's demand for his signature, from a source
which Agosta could easily infer was the Union. It should
be emphasized that at no time in this series of events
over less than 4 work hours covering two consecutive
workdays has either Agosta or Castellano claimed that
Nevarez was stealing or converting money that belonged
to the firm for his own purposes. Finally, I conclude that
Nevarez' reaction was distracted and emotionally reac-
tive to a series of unlawful and provocative acts of har-
assment to which he was subjected on his recall to em-
ployment starting on 28 January, which were accurately
foretold by Jose Santiago on that very first day of Ne-
varez' return.
Having now referred to a statement attributed to San-
tiago, in his absence as a witness and on,,the basis of the
high degree of credibility of I.he four employee witnesses
for the General Counsel, , I am also prepared to and do
credit all statements attributed to him by the four.
Analysis
Respondent committed violations of Section 8(a)(1) of
the Act on the occasions when Supervisor Castellano ap-
proached the Spanish-speaking strikers on the picket line
during July 1984 and sought to induce them to return to
'work with a promise of a wage increase if they would
renounce the Union in writing. At each- such meeting
with the strikers Respondent used Santiago as its agent
to translate its illegal offers into Spanish and the employ-
ees' responses into English.
Respondent's efforts to break the strikers' resolve was
unsuccessful. While this illegal effort was underway,
Agosta dispatched mailgrams to all the strikers threaten-
ing them with discharge if they did not return to work
within 2 days. In a prior section of this decision I dem-
onstrated that Agosta never intended to withdraw that
threat by his subsequent forwarding of a corrective mail-
gram later the same day.1 ° Board law supports the con-
clusion that the second mailgram, having failed to satisfy
the standards for an effective repudiation of the first (the
threat to terminate the employees contained in the first)
constitutes a violation of Section 8(a)(1) of the Act. By
merely rescinding the first mailgram and substituting
"the appropriate message" that he would exercise his
right to replace economic strikers, Agosta did not make
sufficiently clear nor was he sufficiently specific in dis-
avowing the illegal threat. Nor did Agosta provide any
assurance to the striking employees in the second mail-
gram that in the future Respondent would not interfere
with the exercise of their Section 7 rights by such coer-
cive conduct. Dayton Auto Electric, 278 NLRB 551
YO Apart from Agosta's contradictory narrative of the events that led
him to "correct" the first mailgram, it became clear by 31 July, when
Agosta agreed to every striker's inclusion in the voting unit and was sep-
arately confirmed by Respondent's counsel (Tr. 131), that none of the
strikers had been permanently replaced in accordance with the mailgram
327
-f986) Passalant Memorial Area Hospital, 237 NLRB 138
(1978).
I am not prepared to conclude, as urged by the Gener-
al Counsel, that by the presumed results said to flow
from the first mailgram, Respondent thereby discharged
the striking employees effective on the deadline for their
return on 13 July 1984. As the record makes clear, Re-
spondent did not follow the action stated in either mail-
gram, as he agreed by 31 July to the inclusion of all
strikers on a list of employees eligible to vote in the rep-
resentation election. The General Counsel argues that
this agreement was a tactical move, and that had the
strikers responded to the mailgrams and returned, a con-
dition for their reemployment would have been abandon-
ment of the Union. Respondent's later conduct, when
Cepeda and Nevarez were recalled, belies this claim.
Both were recalled even though both had previously and
consistently repudiated Respondent's efforts to woo them
back with increased benefits provided they abandon the
Union. That Respondent's plan of harassment succeeded
in subsequently removing both of them from its employ
does not support the General Counsel's speculative inter-
pretation of events had the employees acted on Agosta's
1I July command.
Agosta's conduct on 8 August does warrant, however,
the conclusion that in rejecting the offers to return to
work of the Spanish-speaking union adherents, he was
motivated by their union loyalty and adherence through-
out the strike, and their rejection of his efforts to force
their renounciation of the Union as the price of their
recall. A number of factors point toward this conclusion.
The only employee who either did not abandon or notify
Agosta he opposed the strike and who was recalled was
George Moncado. Moncado apparently was not closely
associated with the -exclusively Spanish-speaking, group
of four and had not been approached on the picket line
during the strike to abandon his union support and return
to work. He was also the most senior helper employed
by Respondent before the strike who consistently
worked more overtime hours among those who had re-
mained on strike and Agosta needed an experienced
helper to get back into full operation. Furthermore,
Agosta's selection for recall, with one exception, of em-
ployees he knew had abandoned the strike (Radwan and
Cales), refrained from supporting the strike (Olivia and
Folgar), and had even been .fired for drinking sometime
before the strike began (Folgar), when only the four
Spanish-speaking employees, and not the ones selected,
were waiting outside the plant for Agosta's acceptance
of the Union's offer to their return to work , establishes
that union considerations were paramount in Respond-
ent's choice of employees to help achieve full operations
after the end of the labor dispute. What makes Agosta's
denial of unlawful motivation even more difficult to
credit is that he adopted as his standard of selection for
reinstatement the fact that there was a group of employ-
ees waiting at the plant entrance for the opportunity to
return to work. Those would be the ones selected for im-
mediate rehire. Yet, all employees selected but one, Mon-
cado, were not even outside the plant that afternoon, al-
though Olivia had already been placed back on the pay-
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll on 3 August, at the beginning of the workweek
ending on Thursday, 9 August.
Furthermore, although Agosta gave lip service to the
idea of recalling the old employees as business conditions
permitted, he did no such thing, but rather hired new
drivers (Khalil and others) and made an unsuccessful at-
tempt to bring back Cales and, when that failed, finally
hired new helpers who had not participated in the strike
and therefore could not have been implicated in with-
standing his pressure to denounce the Union (Price and
Carmello, among others). That there were job openings
for the four alleged discriminatees is proven by the ef-
forts La Famosa continued to make to get them back to
work but without their Union to represent 'them in col-
lective bargaining as well as by Agosta's lack of concern
for the drop in sales, which immediately preceded the
recall of Cepeda and Nevarez.
In September, when Cepeda was offered a $50-a-week
pay raise by Santiago, and the same day visited the plant
to see Agosta about the matter, it was Castellano who
confirmed the offer, but only if Cepeda would disavow
the Union at the Board. Similar offers were made to
each of the other dischargees (Nevarez, Gonzalez, and
Reyes), at the home of one or another of them by San-
tiago, who traveled extensively to do so, and who held
himself out as speaking for the owner in passing along
the illegal proposals.
Santiago's role as Respondent's agent in transmitting
these offers and in speaking for Respondent in other re-
spects, to be discussed infra, was placed in issue by the
General Counsel's assertion and Respondent's denial of
that status.
As previously noted, Santiago was often used to relay
instructions and assignments from Castellano or Agosta
to the Spanish-speaking employees. The employees also
trusted and had confidence in Santiago because of his
senior status as salesman and his handling of accounts on
behalf of the firm-even seeking him out to convey their
requests for ' raises to the owner. Santiago also relayed
the owner's approval of their work efforts, at least with
respect to one of them, Nevarez. It was also Santiago
with whom Olivia communicated during the strike to
obtain information about its status.
An agent with only apparent, rather than actual, au-
thority may bind his principal. An employer may create
such authority for an individual employee by his words
and deeds "[W]hich, reasonably interpreted, causes the
third person to believe that the principal consents to
have the act done on his behalf by the person purporting
to act for him." Restatement 2d, Agency § 27 (1958). See
also Jules V. Lane, D.D.S., 262 NLRB 118, 119 (1982);
Idaho Falls Consolidated Hospitals v. NLRB, 731 F.2d
1384, 1387 (9th Cir. 1984); May Department Stores Y.
NLRB, 707 F.2d 430, 433 (9th Cir. 1983).
Section 2(13) of the Act specifically provides that "In
determining whether any person is acting as an `agent' of
another person so as to make such other person responsi-
ble for his act, the question of whether the specific acts
performed were actually authorized or subsequently rati-
fied shall not be controlling." As cited in Bio-Medical Ap-
plications of Puerto Rico, 269 NLRB 827, 828 (1984). In
addition, the Board has held that the principal's denial
that the putative agent was authorized to act on his/her
behalf is not determinative of the agency issue. Id. at
828. The Ninth Circuit has held further that an agent's
remarks that his comments reflected personal opinion are
not conclusive on whether these remarks may be imput-
ed to the principal. Idaho Falls, 731 F.2d at 1387. The
Board has held, moreover, that failure of the principal to
disassociate itself from the actions of the alleged agent
may be a controlling factor in determining agency. Bio-
Medical, 269 NLRB at 828. The Board has also noted the
importance of considering whether the alleged unlawful
acts of the alleged agent coincide with similar actions by
the employer. Jules V. Lane, D.D.S., 262 NLRB at 119.
The latter bears on the question of whether it is reasona-
ble for employees to assume that an individual is acting
as the employer's agent:
On three occasions, the Board has relied on a bilingual
employee's role as translator as a factor in determining
agency. In Enterprise Aggregates Corp., 271 NLRB 978
(1984), the Board found an employee bookkeeper who,
inter alia, "was able to communicate with employees ef-
fectively because she spoke Spanish" to be an agent. In
Ja-Wer Sportswear, 260 NLRB 1229, 1234 (1982), the
Board affirmed an administrative law judge's conclusion
that an employee who "regularly translated the remarks
of [the employer] from English to Spanish for the em-
ployees" was an agent. And in NAB Construction Corp.,
258 NLRB 670, 674 (1981), the Board affirmed the
judge's fording that employee Carlos Ortz, who was spe-
cifically hired to solve the employer's problem of com-
municating with Spanish-speaking employees, was an
agent ., In fording the employer liable for Ortz ' comments,
the judge concluded: "I ford that respondent is responsi-
ble for Ortz' comments regarding the union situation as it
placed him in a position which identifies him with man-
agement and the employees could have reasonably be-
lieved that when making the comments under consider-
ation he was speaking and acting for management." Id.
at' 675.
Reliance may, be placed here not only on the use of
Santiago in transmitting management instructions, direc-
tions, and positions to employees who because of a lan-
guage barrier might not otherwise understand them, as
well as his purporting to speak for management after the
strike, but also on the fact that Santiago 's activities in
communicating with the employees after the conclusion
of the strike coincided with and closely paralleled the
conduct of Supervisor Castellano during the strike, and
in at least one important instance, that involving the
offer of $250 to Cepeda at his home, was immediately
adopted and repeated by Castellano at the plant en-
trance.", See Jules V Lane, D.D.S., cited, supra. Fur-
ther, the fact that Santiago went out of his way to visit
employees at their homes in other boroughs of New
York City is further evidence that he was not acting on
his own.
i i In another instance, when Santiago informed Nevarez that the
owner wanted to come to some kind of an agreement, Castellano at the
plant told the men when they followed up this proposal to return the
next day to see Agosta who was out but, significantly, did not reject their
approach to discuss the matter.
LA FAMOSA FOODS 329
All the circumstances presented justified the employ-
ees' belief that when he visited them at their homes and
offered jobs and benefits if they abandoned the Union,
and when he passed comments to Reyes in January 1985
about Cepeda, and to Nevarez later the same month
about Nevarez himself, and outlined an employer scheme
to rehire them and then to force them to quit or fire
them on pretexts that would pass muster in the courts,
Santiago was speaking for Respondent. Accordingly, I
conclude that Respondent clothed Santiago with appar-
ent authority and that in speaking to the strikers and to
the employees after the strike, he was acting as mange-
ment's agent 'whose actions bound his principal.
Although Respondent denied knowledge of Santiago's
actions, the parallel conduct of Supervisor Castellano un-
dermines that assertion. The small, intimate nature of the
Respondent's operation also adds weight to the view that
not only did it act so as to reasonably cause the employ-
ees to believe that it consented to Santiago's activities
and speech, but that Respondent, in fact, was aware of
his conduct. See NLRB P. Birmingham Publishing Co.,
7.62 F.2d 2, 8(5th, Cir. 1959).12 Neither did Agosta ever
disavow Santiago's participation as translator of the coer-
cive and illegal offers of benefit made'by La Famosa's
supervisor during the strike or his activities in approach-
ing the employees thereafter. His presence with Castel-
lano in conveying the offers and his later conveyance of
offers to Cepeda and others, which were confirmed by
Castellano , manifested a level of authority that placed on
Respondent a duty to disclaim his authority in any like
continued role. See Cosmetic & Novelty Workers Local
300, 257 NLRB 1335, 1338 (1981). Compare Knogo Corp.,
265, NLRB 935, 936 (1982).
Agosta's animus towards the union involvement and
activities of his employees has been well established on
this record. Agosta claimed he threw Union Agent
Carrao off his property as a "criminal ," He accused the
strikers of causing Respondent's bad business straits
when they visited the plant on 14 December after San-
tiago had pleaded ' to Nevarez that Agosta wanted them
to come to an agreement. Agosta referred to his not
having a union contract when he denied, harshly and
12 Birmingham Publishing is one of three cases cited by Respondent in
its abbreviated brief in opposition to Santiago's agency status. It appears
to support such status, placing reliance on the small size of Respondent's
shop , the alleged agent's meeting with a company vice president and
foreman about the matter , the alleged agent's free reign and his leader-
ship role among employees , in concluding that there would not be much
doubt about the Company's knowledge of his activities, thus that its fail-
ure to deny his authority to promise salary raises and other benefits lent
support to the inference that he was clothed with authority to speak for
the Company in circulating a decertification petition Neither of the other
two cases cited supports a contrary view. Cupples Co. Mfrs. Y. NLRB,
106 F.2d 100 (8th Cir. 1939), was decided prior to the 1947 amendments
to the National Labor Relations' Act which, inter aba, added to the defi-
nition of the term "employer" in Sec. 2 (2) thereof, any person acting "as
an agent of an employer' and added Sec. 2(13). See 12 Ann. Rep (1947),
App G. The court's analysis of the role of a certain forelady Weitzel in
allegedly acting as an agent of the employer in the formation of an em-
ployee association is therefore suspect and not controlling. In any event,
contrary to, Cupples Co. Mfrs. there is the evidence discussed that Santia-
go's activity was not disavowed. In NLRB v. Cherokee Hosiery Mills, 196
F.2d 286 (5th Cir. 1952), the alleged agent was a friend of the respondent
employer, Mayer, who acted entirely on his own initiative and without
respondent 's knowledge, contrary to the factual pattern found herein.
without explanation, Nevarez' request for overtime pay.
Agosta told Cepeda that because he knew how to go to
the Board he could learn to perform on the routes using
English, and also, a day or two later, that he was
"trying" him. Finally, Agosta physically intimidated and
cursed Cepeda, stamping on the papers, on the occasion
when Cepeda served him with the final charges in this
case. 13
Having concluded that after 8 August 1984, Santiago
acted as Respondent's agent in transmitting unlawful
promises to induce the employees' return to work if they
renounced the Union, I also ^ conclude that each such
transmission violated Section 8(a)(1) of the Act. Further,
Castellano's promises of like nature made when the em-
ployees followed up Santiago's promises and report of
the owner's desire to resolve the dispute and went in
person to the plant, are also violative of Section 8(a)(1)
of the Act. At least one instance occurred in December
1984, a period of time not alleged in the complaint.' As
this conduct was one in a series of continuing and related
transactions, the issue and facts regarding which was
fully litigated, I will also include it in the ultimate rec-
ommended conclusions of law.
Having concluded that Respondent was discriminatori-
ly motivated by their union activity in denying recall to
the four employees, Cepeda, Nevarez, Gonzalez, and
Reyes, on 8 August, and also fording that Respondent
has not overcome the General Counsel's prima facie
showing in that regard, NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 398-401 (1983), I will recom-
mend that Respondent be found to have violated Section
8(a)(3) and (1) of the Act for this conduct.
Independent of the foregoing, by denying reinstate-
ment to the strikers on and 'after 8 August 1984, on their
unconditional offer to return, when the record establishes
Respondent had jobs available for them, the four strikers
thereby became discriminatees and Respondent's failure
to reinstate them violated Section 8(a)(3) and (1) of the
Act. See Weather Tec Corp., 238 NLRB 1535 (1978). Re-
spondent's conduct after 8 August 1984, in continuing to
deny the employees' reinstatement on their infrequent
visits to the plant, because they continued to insist on
union representation and because Agosta blamed their
striking for the current state of his business, reinforces
the conclusion reached here.
There is also an independent basis for concluding that
Respondent violated Section 8(a)(3) and (1) on 8 August.
The economic strike, which commenced on 3 July 1984,
was converted into an unfair labor practice by virtue of
Respondent's promises of benefit and inducements to the
pickets to abandon the Union and by its 11 July threat to
discharge them if they failed to return to work on 13
July. These threats and inducements were discussed
among the employees and with their union delegate
Carrao, who was at the picket line, as were the coercive
mailgrams , three or four of which were given to the
union agent. These acts of intimidation became the sub-
ject of unfair labor practice charges and led the Union
13 This conduct, which followed Cepeda and Nevarez' discharges by a
month, may be appropriately considered as evidence of animus on both
the 8(a)(3) and (4) allegations. Jenks Cartage Co., 219 NLRB 368 (1975).
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and employees to prolong and to continue the strike and
picketing beyond the 31 July meeting at which an em-
ployee eligibility list and agreement for an election was
reached with the Company, and until the election results
were announced on 8 August, just because, in the words
of Carrao, the employees and Union could not trust an
employer who had engaged in such coercive tactics. See
NLRB v. Berger Transfer & Storage, 678 F.2d 679, 692
(7th Cir. 1982); NLRB v. Moore Business Forms, 574 F.2d
835, 840 (5th Cir. 1978); Winn-Dixie Altanta, 207 NLRB
290 (1973).
Respondent opposed the motions, both granted, one
made at the opening of the hearing to allege the strike's
prolonging and conversion, and the other near the con-
clusion of the hearing to allege the refusal to reinstate
the four unfair labor strikers , except for the reinstatement
of Cepeda and Nevarez in late January and February
1985, on their unconditional offer to return to work, as
discriminatory acts. However, Respondent did not object
on the ground that the latter amendment was time-barred
under Section 10(b) of the Act (Tr. 2276), and thus has
waived the right to raise that ground, which must be as-
serted as an affirmative defense, K & E Bus Lines, 255
NLRB 1022 (1981). As the matters raised in the motions
at hearing are clearly related to the issues raised in the
second consolidated and amended complaint, which alle-
gations are based on charges that were filed within the
10(b) period, Respondent's defense that the new matter
substantially alters the charges alleged in the consolidat-
ed and amended complaint is without merit, and the
ruling made by me on the record (Tr. 2277-2278) is reaf-
firmed, including that portion concluding that the mat-
ters raised in the latter amendment were fully litigated at
the hearing. NLRB v. Complas Industries, 714 F.2d 729
(7th Cir. 1983); Cobb Theatres, 260 NLRB 856 fn. 1
(1982); Glazier Wholesale Drug Co., 209 NLRB 1152,
1153 fn. 1 (1975). Because the subject matter had been
fully litigated it was not prejudicial to Respondent to
grant the motion to amend near the close of the hearing.
See Acme Markets, 277 NLRB 1656 (1986).
In their status as unfair labor practice strikers on their
unconditional offers to return to work on 8 August 1984,
the four employees were entitled to be hired ahead of
any applicants for employment on or after 8 August who
did not enjoy their status and to force the dismissal of
any replacements hired after the conversion of the strike.
NLRB v. Charles B. Bonanno Linen Service, 782 F.2d 7
(1st Cir. 1986); Seeberg Corp., 192 NLRB 290, 291 (1971).
Thus, by denying them reinstatement on 8 August, and
each time thereafter new drivers and helpers, were hired
in their place, Respondent committed violations of Sec-
tion 8(a)(3) and (1) of the Act.
It remains to consider the legal implications of Re-
spondent's conduct in harassing and then discharging
Cepeda and Nevarez almost immediately following their
recall in January, 1985.
As already found, early in September 1984, Cepeda re-
jected a return to work at a $50-a-week raise conditioned
on his renouncing the Union in writing to be submitted
to the Board. Later the same month, Respondent em-
ployed a new driver, Jacob Khalil, who continued there-
after on a regular, basis. It is evident that these events
were related. Throughout the strike and poststrike
period, until January 1985, Agosta attempted zealously
but without success to induce Cepeda, among the others,
and the only driver of the four discriminatees, to give up
the Union as a price of returning to work. By December,
when the Union's charge was filed in Case 29-CA-
11560, Agosta learned that the men had taken their com-
plaints about his threats and promises to the Union and
to the Board. Although Respondent refused to accept
certified mail delivery of a copy of the resulting com-
plaint in that case on 18 January 1985, there is good
reason to believe that the Region 29 designation on the
envelope or notice that the sender was the NLRB alert-
ed Agosta to the result of the Board's investigation of
the charge. By this time , Agosta was surely aware that
his attempts to cause a rift between the employees and
their Union would not succeed. He therefore implement-
ed a scheme to recall at least two of the men without
imposing any apparent illegal conditions on their return
to work with the ultimate aim of getting rid of them
again in such a way that he would be able to successive-
ly overcome a claim that their termination was related to
their union adherence. Santiago's comments to Reyes
made just after Cepeda's firing that he knew, Cepeda
would be fired, that "they" would recall and then fire
each of them in turn in such a way as to make it impossi-
ble for the Union to establish an unlawful act in court,
shows the existence of such a plan. Santiago's later com-
ment to Nevarez attributing to the "owner," Agosta, the
illegal device of assigning to Nevarez a different job
from the one he held in the past to see if he would refuse
to do it, after Nevarez had been assigned as a helper and
not to his prior job as warehouseman, also evidences the
implementation of the scheme. -
On Cepeda's return, he was immediately ordered to a
frigid warehouse and was next overloaded with extra
stops compared to his fellow drivers and the helper as-
signed to assist him, contrary to past, practice, did not
speak Spanish, in spite of the fact that the other three
helpers available were all bilingual and Agosta knew
Cepeda required the assistance of one of them. The next
day, Respondent removed Cepeda's responsibility to col-
lect and remit the money received from customers and
denied him the option of driving the truck home at
night, instead ordered him without explanation to drop
off the truck and keys with the driver he was supposedly
replacing, Olivia, and thereby forcing Cepeda to walk
some distance in the frigid cold, below 10 degrees Faren-
heit.^ These harassments and onerous conditions of em-
ployment were continued the following day when, in re-
sponse to Cepeda's inquiring about' assignment to a new
route that neither he nor his, English-speaking helper
were familiar and request for a Spanish-speaking helper
were met by Agosta, with whom he was obliged to
confer, with a provocation, acknowledging both his
union concerns and exercise of rights under the Act of
giving testimony in support of one of the consolidated
cases, and finally by sending him home. Cepeda's dis-
charge followed the next morning when, Agosta, first
telling Cepeda he was "trying" him, next falsely accused
Cepeda of not wanting to do the stops the prior day, and
LA FAMOSA FOODS
then let Cepeda go. All the foregoing circumstances war-
rant the conclusion that Agosta, following up on his
scheme, created a setting of harassment and onerous
terms and conditions of employment that placed Cepeda
in a position where he could not reasonably perform his
job and then fired him for pleading to remove the imped-
ments to his work performance.14 Agosta's extreme hos-
tility to Cepeda's union activities and giving of testimony
under the Act was later confirmed by the vehemence of
his fury and obscene language when Cepeda served him
personally with a copy of the amended charges he and
Nevarez had filed in Cases 29-CA-11713 and 29-CA-
11713-2 on 1 March 1985.
Nevarez' adverse treatment paralleled that of Cepeda
on his return to work 4 days later. Nevarez was not as-
signed his old job, nor was he allowed to operate the
equipment, which had been his main responsibility in the
warehouse. In his assignments as helper he was consist-
ently given heavier workloads than his cohorts. When he
questioned the employee, Santiago , who ordered him out
on a truck as a delivery helper, he was told the owner
was testing him to see if he would refuse the assignment.
The implication was clear-Respondent was looking for
a way to goad him and then to fire him without implicat-
ing itself in charges of discrimination.
Nevarez' deliveries the first day took him as far as
Philadelphia. Two days later Nevarez was given an as-
signment, generally disliked, to help on a delivery up-
state leaving ' at 3 a.m., requiring his much earlier travel
from another, borough of New York City by ferry. Even
after receiving word from the driver that another helper
for whom the assignment was less of a hardship would
be substituted, and from Respondent' s agent Santiago
that he had no obligation to go, he was still warned by
Agosta the following day about the "late" change. When
Nevarez questioned whether the 12 overtime hours he
worked the 3 days that week appeared on his paycheck,
Agosta first responded in an uncharacteristically testy
and hostile manner, and then made the point he had no
union contract requiring higher pay, without clarifying
that he did not pay overtime rates for less than a 40-hour
week. When Agosta then learned from Nevarez' re-
sponse that he intended to pursue the matter further with
his Union, Agosta cursed Nevarez with language unchar-
acteristic of their past relationship. Agosta's series of
provocations culminating in his ill treatment that day led
as 1 am not persuaded to adopt a contrary conclusion after reviewing
the unemployment compensation decisions received in evidence In the
absence of any transcript of those proceedings , and in light of the hostih-
ty and harassment to which he was subjected on the few days of his
return to employment, and the high degree of reliability I have attached
to his demeanor and testimony, I am not prepared to discredit Cepeda
because he certified for benefits for the week ending 27 January 1985 that
he did no work in employment. This apparently refers to an entry made
on a form , whether translated into Spanish remains unclear. See Precision
Plating, 243 NLRB 23Q (1979). I also conclude that the administrative
law judge fmdmgs there that Cepeda "refused to make a delivery to New
,Jersey," and without having "a compelling reason" are both contrary to
the findings I have made here based on the full record before me. Par-
ticularly in the absence of hearing minutes, or any information about the
nature of the hearing that was conducted or who testified in addition to
Cepeda or what evidence was adduced, I will not give these decisions
controlling weight in the instant proceedings See Magic Pan, Inc., 242
NLRB 840 (1979)
331
" Nevarez to leave the plant with both his check and cash.
When pressed and harassed the next day by both the su-
pervisor and owner to return the check, which Nevarez
did not have with him, Nevarez sought unsuccessfully to
contact the Union, and on his return to the plant was
fired when he refused to sign a paper which Agosta did
not explain and Nevarez could not read or understand.
Just as with Cepeda, the pressure and more onerous
working conditions placed on Nevarez forced him to
behave in such a way that Agosta's scheme was realized
and he was provided with the trumped up charge that he
then seized on to rid himself of a union adherent who re-
peatedly had refused to abandon the Union, although in-
cited to do so.' 5
The second discharges of Cepeda and Nevarez violat-
ed not only Section 8(a)(3) and (1) of the Act, but Sec-
tion 8(a)(4) as well. When Agosta finally acted to
remove Cepeda and Nevarez from his payroll for what
he believed was the last time Agosta was motivated by
both their union loyalty and their pursuit of charges of
unfair labor practices they had each filed with the Board.
Agosta acknowledged his concern about these charges in
his refusal to accept mail service of the first complaint,
his sarcastic comments about Cepeda's ability to visit the
Region's offices and ' relief at not having to pay union
contractual overtime rates to Nevarez, and finally his
physical and verbal abuse of Cepeda for serving the last
set of charges on him. These events, coupled with his
strong antipathy to union organization of his business
even after, the Union had clearly demonstrated majority
representation in the election, successfully establish Re-
spondent's dual unlawful motivation in January and Feb-
ruary 1985, which Respondent's pretextual defenses can
hardly hope to overcome.
CONCLUSIONS OF LAW
1. By virtue of a bankruptcy petition filed by it in the
United States Bankruptcy Court for the Eastern District
of New York under Chapter XI of the Bankruptcy Act,
Respondent La Famosa Foods, Inc. has continued in
possession as a Debtor in Possession, with full authority
to continue operations and exercise all powers necessary
to the administration of its business ' and thus constitutes a
successor in bankruptcy to Respondent La Famosa
Foods, Inc.
2. The Respondents, La Famosa Foods, Inc., and La
Famosa, Inc., Debtor in Possession, are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. Local 27, Paper Products, Miscellaneous Drivers,
Warehousemen and Helpers, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
is Particularly apt with respect to both Cepeda and Nevarez is the fol-
lowing language : "Because the animosity is inextricably intertwined with
the unionization dispute, reinstatement is appropriate in this case. An em-
ployer cannot provoke an employee through unfair labor practices and
then terminate the employee for becoming understandably hostile NLRB
v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir 1965). If an employer
could avoid a reinstatement remedy on this ground , a premium would be
placed on grossly offensive employer conduct. Id " NLRB v. United Hy-
draulic Services, 121 LRRM 2464 (4th Cir 1986), enfg 271 NLRB 107
(1984).
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America is a labor organization within the meaning of
Section 2(5) of the Act. '
4. The employees who went on strike about 3 July
1984 were engaged in a protected concerted activity
within the meaning of Section 7 of the Act.
5. By offering and promising the strikers wage in-
creases and other benefits if they would abandon their
work stoppage and strike, and abandon their membership
in, activity on behalf of, and support of the above-named
Union, by threatening the strikers with discharge for en-
gaging in an economic strike, and subsequent to the ter-
mination of the strike on 8 August 1985, by offering and
promising to its employees reinstatement, wage increases,
and other benefits if they would abandon their member-
ship in, activity on behalf of, and support for the Union,
Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
6. By engaging in the conduct described above, Re-
spondents prolonged the strike described above, and con-
verted the economic strike into an unfair labor practice
strike.
7. By failing to reinstate strikers Jose Ruiz Gonzalez,
Bernardino Vina Cepeda, Eddie Nevarez, and Jose
Reyes on their unconditional offer to return to work on
8 August 1984 when jobs were available and, alternative-
ly, by refusing reinstatement to unfair labor practice
strikers Jose Ruiz Gonzalez, Bernardino Vina Cepeda,
Eddie Nevarez, and Jose Reyes on 8 August 1984, Re-
spondents discriminated in regard to the strikers' hire
and tenure of employment, thereby discouraging mem-
bership in the Union and have thereby engaged in and
are engaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
8. By harassing and imposing more onerous terms and
conditions of employment on employees Bernardino
Vina Cepeda and Eddie Nevarez on their reinstatement
to employment on 21 and 28 January 1986, respectively,
and by discharging them on 24 January and 4 February
1986, respectively, Respondents discriminated in regard
to their hire and tenure of employment, thereby discour-
aging membership in the Union, and discriminated
against them because they gave testimony under the Act
in support of charges filed, inter alia, on their behalf by
the Union in Case 29-CA-11560, and have thereby en-
gaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(4), (3), and (1) of the
Act.
9. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
10. Except as it is set forth above, Respondents have
not otherwise violated the Act.
THE REMEDY
Having found that Respondents engaged in certain
unfair labor practices in violation of Section 8(a)(4), (3),
and (1) of the Act, I shall recommend that Respondents
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondents denied rein-
statement to the four strikers and discriminatees on their
unconditional offer to return to work on 8 August 1984,
although jobs were available and, alternatively, that the
strike which began on 3 July 1984 was prolonged by Re-
spondents' unfair labor practices, the four named strikers
and discriminatees were entitled to- reinstatement when
they unconditionally offered to return to work on 8
August, subject to the availability of their jobs.16 The
record also establishes that on Respondents' offer of rein-
statement to employees Cepeda and Nevarez on 18 Janu-
ary 1985, Cepeda was reemployed on 21 and 22 January
1985 and Nevarez was reemployed from 28 January to 1
February 1985.17 These limited periods will be excluded
from the period of time it is recommended that Respond-
ents will be ordered to make these employees whole for
any loss of earnings they may have suffered by reason of
Respondents' earlier refusal to reinstate them and subse-
quent discharge of them. I will therefore recommend
that Respondents be ordered to offer the four discrimina-
tees and unfair labor practices strikers immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, discharging, if necessary, any re-
placements in order to provide work for the strikers and
discriminatees, and that it make them whole for any loss
of earnings they may have suffered as a-result of the dis-
crimination against them by paying them backpay com-
puted on a quarterly basis as prescribed in F W. Wool-
worth Co., 90 NLRB 289 (1950), with' interest as pre-
scribed in Florida Steel Corp., 231 NLRB' 651 (1977); see
generally Isis Plumbing Co., 138 NLRB 716 (1962). Back-
pay will be computed from 8 August 1984, the date of
their unconditional offer to return to work, or the date
next thereafter when jobs were available, to the date of
Respondents' offer of reinstatement, excluding the period
21 and 22 January 1985 for Bernardino Vina Cepeda and
the period 28 January to 1 February 1985 for Eddie Ne-
varez, less their net earnings during such period.
I also conclude on the basis of the facts earlier set
forth in this decision that Respondent La Famosa and
Respondent La Famosa, Debtor in Possession, are alter
egos of Fontana d'Oro Foods, Inc., see Crawford Door
Sales Co., 226 NLRB 1144 (1976).18 As Fontana d'Oro
16 On Respondent president's own testimony he was prepared to offer
jobs on 8 August to four employees, in addition to a single striker, Mon-
cado, two of them drivers (Olivia and Radwan) and two of them helpers
(Folgar and Cales), all of whom abandoned the strike or were known to
have rejected or opposed the strike and the Union In addition, other
new employees were hired in September (a driver, Khalil), November
(helpers Blue and Kerrigan), and December or January (helpers Price
and Carmello). Thus, jobs were available for a driver and two helpers
almost munediately and for a third helper by November 1984.
17 On 23 January 1985 Cepeda was sent home without work and, early
on 24 January 1985, he was discharged. Early on 4 February 1985, Ne-
varez was discharged.
13 Just as in Crawford, La Famosa and Fontana d'Oro Foods, Inc have
had "substantially identical" management , business purpose, operation,
equipment , customers , and supervision , ' as well as ownership Even the
work force, the drivers and helpers and warehouse employees, was sub-
stantially identical The only limited exception, which does not detract
from this conclusion, is that Agosta's brother-in-law, Angelo Guarnieri, is
not an owner of 50 percent of the shares of La Famosa, havmg'been re-
placed by Agosta's wife and daughters, but he continues as an employee
close to Agosta and whom Agosta did not propose for inclusion in the
list of employees eligible to vote in the election. The location is also not
Continued
LA FAMOSA FOODS 333
Foods, Inc. has been found to have-committed significant
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, in a proceeding in which the Board's
Order was enforced by a circuit court of appeals, I con-
clude that its alter egos, Respondents La Famosa and La
Famosa as Debtor in Possession, have demonstrated a
proclivity to violate the Act warranting the issuance of a
broad order, Hickmott Foods, 242 NLRB 1357 (1979). I
also find a broad cease-and-desist order is necessary be-
cause of the character and scope of the unfair labor prac-
tices found herein, demonstrating a general disregard for
the employees' fundamental rights. See Soule Glass Co.,
246 NLRB 792 (1979); and Hickmott Foods, supra.
On these findings of fact and conclusions of law and
on the entire record, 19 I issue the following recommend
ed2o
ORDER
The Respondents, La Famosa Foods, Inc. and La
Famosa Foods, Inc., Debtor in Possession, Staten Island,
New York, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Offering and promising employees raises or other
inducements to return to work and cease participating in
a strike or other union or protected concerted activities
or threaten them with discharge if they do not abandon
their strike.
(b) Discouraging membership in Local 27, Paper Prod-
ucts, Miscellaneous Drivers, Warehousemen and Helpers,
International Brotherhood- of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other
labor organization, by refusing reinstatement to strikers
for whom jobs are available and by refusing reinstate-
ment to unfair labor practice strikers, on their uncondi-
tional request.
(c) Offering and promising employees reinstatement,
raises, and other inducements to abandon their member-
ship in, activity on behalf of, and support for the Union.
(d) Discouraging membership in the Union or any
other labor organization, and discriminating against em-
ployees because they give testimony under the Act, by
harassing, imposing more onerous terms and conditions
of employment on, and discharging, or in any other
manner discriminating against, its employees in regard to
their hire or tenure of employment or any term or condi-
tion of employment.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
identical, having moved a few doors down the same street because of the
water damage to Fontana d'Oro's premises. Both have been closed cor-
porations wholly owned by members of John Agosta's family, and he has
exercised substantial control over both.
19 The General Counsel 's motion ' to amend the transcript correcting
certain errors to more accurately refleci actual language spoken is grant-
ed and the record is corrected.
20 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
.2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Jose Ruiz Gonzalez, Bernardino Vina
Cepeda, Eddie Nevarez, and Jose Reyes 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,
dismissing, if necessary, any person hired on or after 8
August 1984, and make them whole for any loss of earn-
ings and other benefits they may have suffered as a result
of the discrimination practiced against them in the
manner set forth in the remedy section of the decision.
(b) 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.
(c) Post at its Staten Island, New York place of busi-
ness copies in English and Spanish of the attached notice
marked "Appendix."21 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 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.
(d) 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 in Case
29-CA-11560 is dismissed insofar as it alleges violations
of the Act not specifically found. -
21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT offer or promise our striking employees
wages increases or other inducements to work and cease
participating in a strike or other union or protected con-
certed activities or threaten them with discharge if they
do not abandon their strike.
WE WILL NOT discourage membership in Local 27,
Paper Products, Miscellaneous Drivers, Warehousemen
and Helpers, International Brotherhood of Teamsters,
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Warehousemen and Helpers of America, or
in any other labor organization, by refusing reinstatement
to strikers for whom jobs are available or by refusing re-
instatement to unfair labor practice strikers, on their un-
conditional request.
WE WILL NOT offer and promise our employees rein-
statement, raises, and other inducements to abandon their
membership in, activity on behalf of, and support for the
Union.
WE WILL NOT discourage membership in the Union or
any other labor organization, or discriminate against em-
ployees because they give testimony under the Act, by
harassing, imposing more onerous terms and conditions
of employment on, discharging, or in any other manner
discriminating against our employees in regard to their
hire or tenure of employment or any term or condition
of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Jose Ruiz Gonzalez, Bernardino Vina
Cepeda, Eddie Nevarez, and Jose Reyes, immediate and
full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits they may have
suffered by reasons of our discrimination against them,
together with interest.
LA FAMOSA FOODS, INC. AND LA FAMOSA
FOODS, INC., DEBTOR IN POSSESSION