Meyers Transport of New York, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 2003

338 N.L.R.B. 958 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
Meyers Transport of New York, Inc. and Local 707,
International Brotherhood of Teamsters, AFL–
CIO and Local 713, International Brotherhood
of Trade Unions. Case 29–CA–23523
April 14, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On September 5, 2001, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Charging
Party filed an answering brief, cross-exceptions, and a
supporting brief. The Respondent subsequently filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Meyers Transport of New York, Inc., Mel-
ville, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from

1 In its answering brief, the Charging Party moves that the Respon-
dent’s exceptions and brief in support thereof be stricken in their en-
tirety and disregarded because they failed to meet the requirements of
the Board’s Rules and Regulations. Although the Respondent’s sub-
missions do not strictly conform to the requirements of the Board’s
Rules, the exceptions, coupled with the brief, are not so deficient as to
warrant striking. Accordingly, we deny the Charging Party’s motion.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge held that the Respondent was responsible for the conduct
of William Massa on the grounds that he was both a supervisor and an
agent. We find it unnecessary to pass on the judge’s supervisory find-
ing because we agree with the judge that Massa was clearly an agent of
the Respondent.
3 We have modified the recommended Order to correct inadvertent
errors and in accordance with our recent decision in Ferguson Electric
Co., 335 NLRB 142 (2001). We shall substitute a new notice in accor-
dance with our recent decision in Ishikawa Gasket America, Inc., 337
NLRB 175 (2001).
(a) Directing or urging its employees to sign authoriza-
tion cards for or otherwise support Local 713, Interna-
tional Brotherhood of Trade Unions (Local 713).
(b) Threatening its employees with discharge or other
reprisals unless they sign authorization cards for or oth-
erwise support Local 713.
(c) Promising its employees wage increases, medical
benefits, or other improvements in their terms and condi-
tions of employment in order to induce them to sign au-
thorization cards for or otherwise support Local 713.
(d) Recognizing or bargaining with Local 713 as the
exclusive representative of its employees employed at its
facility in Melville, New York, unless and until Local
713 is certified by the Board as the collective-bargaining
representative of those employees.
(e) Giving effect to the collective-bargaining agree-
ment that it executed with Local 713 on May 22, 2000,
and any modifications or extensions of that agreement;
provided, however, that nothing herein shall require the
withdrawal or elimination of any wage increase or other
benefits, terms, or conditions of employment which may
have been established pursuant to the performance of that
contract.
(f) Discriminating against its employees in regard to
their hire or tenure of employment in order to encourage
membership in Local 713.
(g) Discharging, laying off, or otherwise discriminat-
ing against its employees because those employees en-
gaged in activities in support of or on behalf of Local
707, International Brotherhood of Teamsters, AFL–CIO.
(h) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local
713 as the collective-bargaining representative of its em-
ployees at its Melville, New York facility, unless and
until that labor organization is certified by the Board as
the exclusive representative of such employees.
(b) Make Dwight Melendez, Robert Aprile, Raymond
Albanese, Anthony Smith, and Thomas Winkler whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges or
layoffs of Dwight Melendez, Robert Aprile, Raymond
Albanese, Anthony Smith, and Thomas Winkler, and
within 3 days thereafter notify the employees in writing
that this has been done and that the discharges or layoffs
will not be used against them in any way.
338 NLRB No. 144
MEYERS TRANSPORT OF NEW YORK 959
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Melville, New York, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 15, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.

WE WILL NOT direct or urge our employees to sign au-
thorization cards for or otherwise support Local 713,
International Brotherhood of Trade Unions (Local 713).
WE WILL NOT threaten our employees with discharge or
other reprisals unless they sign authorization cards for or
otherwise support Local 713.
WE WILL NOT promise our employees wage increases,
medical benefits, or other improvements in their terms
and conditions of employment in order to induce them to
sign authorization cards for or otherwise support Local
713.
WE WILL NOT recognize or bargain with Local 713 as
the exclusive representative of our employees employed
at our facility in Melville, New York, unless and until
Local 713 is certified by the Board as the collective-
bargaining representative of those employees.
WE WILL NOT give effect to the collective-bargaining
agreement that we executed with Local 713 on May 22,
2000, and any modifications or extensions of that agree-
ment; provided, however, that nothing herein shall re-
quire the withdrawal or elimination of any wage increase
or other benefits, terms, or conditions of employment
which may have been established pursuant to the per-
formance of that contract.
WE WILL NOT discriminate against our employees in
regard to their hire or tenure of employment in order to
encourage membership in Local 713.
WE WILL NOT discharge, lay off, or otherwise discrimi-
nate against our employees because they engaged in ac-
tivities in support of or on behalf of Local 707, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
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 withdraw and withhold all recognition from
Local 713 as the collective-bargaining representative of
our employees at our Melville, New York facility, unless
and until that labor organization is certified by the Board
as the exclusive representative of such employees.
WE WILL make Dwight Melendez, Robert Aprile,
Raymond Albanese, Anthony Smith, and Thomas
Winkler whole for any loss of earnings and other benefits
suffered as a result of our discrimination against them,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges or layoffs of Dwight Melendez, Robert
Aprile, Raymond Albanese, Anthony Smith, and Thomas
Winkler, and WE WILL, within 3 days thereafter, notify
the employees in writing that this has been done and that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
the discharges or layoffs will not be used against them in
any way.

MEYERS TRANSPORT OF NEW YORK, INC.

Marcia A. Adams, Esq., for the General Counsel.
Denise Forte, Esq. and Scott Trivella, Esq. (Trivella & Forte
LLP), of New York, New York, for the Respondent.
Walter Kane, Esq. (Vladeck, Waldman, Elias & Engelhard,
PC), of New York, New York, for the Charging Party.
Peter Hasho, of Jamaica, New York, Party to the Contract.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by Local 707, International
Brotherhood of Teamsters, AFL–CIO (Local 707 or the Charg-
ing Party), the Regional Director for Region 29, issued a com-
plaint and notice of hearing on September 26, 2000,1 alleging
that Meyers Transport of New York, Inc. (Respondent) violated
Section 8(a)(1), (2), and (3) of the National Labor Relations
Act (the Act). The trial with respect to the allegations raised in
the complaint was held before me on February 6, 7, and 8,
2001. Briefs have been filed by the General Counsel, Respon-
dent, and the Charging Party, and have been carefully consid-
ered. Based upon the entire record, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, a corporation with its principal office and place
of business at 270 Spagnoli Road in Melville, New York, has
been engaged in the business of commercial trucking.
During the past year, Respondent purchased and received at
its Melville facility goods and materials valued in excess of
$50,000 from enterprises within the State of New York, which
enterprises in turn, purchased and received such goods and
materials directly from points located outside the State of New
York. It is admitted and I so find that Respondent is and has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
It is also admitted and I so find that Local 707 and Local
713, International Brotherhood of Trade Unions (Local 713) are
and have been labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. FACTS
A. Background
Respondent is a commercial trucking company located in
Melville, New York, where it handles general freight, such as
electronics, boxes, and mail.2 The Company was started in
1994, and its president and sole shareholder is Michael Meyers.
In May 1999, Respondent hired Louis Frisina as general man-
ager. Respondent admits that Frisina and Meyers are supervi-

1 All dates hereinafter are in 2000 unless otherwise indicated.
2 Respondent also has a yard in Deer Park, New York.
sors and agents. In July 1999, Respondent hired William
Massa. Massa’s status is very much in dispute, and was exten-
sively litigated.
B. Status of Massa
According to Massa he was hired as a “leadman.” Several
employees testified that they considered Massa to be a member
of management and or a supervisor. Massa received a salary of
$1000 per week, which is the same salary as General Manager
Frisina.
Respondent distributed a list of emergency phone numbers to
drivers to call for emergencies, including after hours. The cell
and home phone numbers of Massa is included on that list as
well as the numbers of Frisina and Meyers. Similarly, drivers
who worked for Southern Container, one of Respondent’s ac-
counts, were given a list of rules to follow in connection with
that account. One of the rules instructs employees to contact
either Frisina or Massa if they are stuck at a delivery stop for
more than a half hour, or if they must leave early or cannot
come in on a particular day.
Employees Harry Grota, Vito Scatigno, John Ballou, Dwight
Melendez, Raymond Albanese, and Thomas Winkler all fur-
nished testimony concerning Massa’s responsibilities, their
observations of his work, and various interactions that they had
with him. I found their testimony with regard to these matters
to be credible, and for the most part was not denied by Massa.
To the extent that their testimony is contradicted by Massa and
or Frisina, I credit the testimony of the employees.
All of the employees testified that they never saw Massa
driving a truck. However, the employees conceded that they
spent very little time at Respondent’s premises, so that they
could not be certain that he didn’t drive a truck as Massa testi-
fied for portions of the day.
They also testified credibly that Massa had an office in one
of the trailers at the Melville premises. Both Massa and Frisina
contend that there was an office there, that Massa sometimes
uses, but it was not his office, and that it was a “common” of-
fice used frequently by others. I credit the employees’ versions
with respect to this issue, particularly since neither Massa nor
Frisina furnished specific testimony as to who else used the
office on a regular basis, other than a driver or secretary wait-
ing to make a phone call.
Scatigno was hired on March 6, 2000, by Lou Frisina. He
was told by various other employees that Massa was a part
owner, a supervisor, a good friend of Meyers, and or a sales-
man. Massa would on occasion when the dispatcher, Vinnie—
was not available, tell Scatigno which truck to take out or
where he should be going. Scatigno observed Massa driving
around the yard in a Jeep Cherokee, and “coming and going as
he pleased.”
On one occasion, Scatigno had informed Vinnie that on a
particular day while servicing a Southern Container, one of
Respondent’s accounts that he had to leave early and Vinnie
said there will be no problem as long as you tell the people at
Southern Container. However, when he informed a Southern
Container employee about his intention to leave early, an ar-
gument ensued, in part based on a prior relationship that Sca-
tigno had with the individual at a prior job. The Southern Con-
MEYERS TRANSPORT OF NEW YORK 961
tainer employee called Massa and complained about Scatigno.
As Scatigno was returning to Respondent’s yard, he received a
call over the radio from Massa. Massa said that he heard that
Scatigno had a problem at Southern Container. Massa in-
formed Scatigno that he was not allowed to leave early and that
Respondent needed that account. He added that he would talk
to Scatigno when he returns to the yard.
When Scatigno reached Respondent’s premises, he spoke to
Massa in Massa’s office. Frisina was also present. Scatigno
explained his version of the incident, including that he had
informed Vinnie of his intent to leave early, as well as his past
dispute with the Southern Container employee from another
job. Massa then said, “I will not send you back there anymore.
You won’t have to go back there any longer.” Frisina agreed
and also said, “I don’t think we should send him back there.”
Thereafter, Scatigno was not assigned to service Southern Con-
tainer.
On another occasion, Scatigno pulled into a shopping center
in Respondent’s truck, and was about to buy a pack of ciga-
rettes. However, as he stepped out of the truck, he received a
call over the radio from Massa. Massa asked Scatigno, “Vito,
is that you in that truck?”3 Scatigno replied, “[Y]es.” Massa
then told Scatigno that he was not supposed to be in the lot
because he had U.S. Postal Inspectors around. Scatigno pro-
tested that the truck does not say “U.S. Mail” on it, and he was
allowed to park there, and he was just going for a pack of ciga-
rettes. Massa responded by saying, “We can’t allow that. If I
were you, I would take the truck back to the yard. I don’t want
to see you here again.” Scatigno complied with Massa’s in-
structions. Scatigno did not receive any written disciplinary
reports about the incident, nor was he spoken to about it again
by Massa or any other officials of Respondent.
Additionally, when Scatigno had problems with his truck or
trailer, such as a flat tire or a door not shutting on the trailer, he
would either tell Vinny, Frisina, or Massa. When he would
inform Massa, Massa would say, “I’ll take care of it.”
Albanese was hired by Respondent in August 1999. He was
interviewed and hired by Frisina, and at that time he was intro-
duced to Massa by Frisina. Frisina said to Albanese that Massa
“handles the drivers,” and that Massa would give Albanese a
road test. Massa gave Albanese the road test, and, after being
fingerprinted and passing a driving test, Frisina told Albanese
when to start.
Massa instructed Albanese that “you got a problem, you
come to me.” Pursuant to this instruction, Albanese, did in fact
speak to Massa about various problems that developed on the
job. Albanese had a problem with Vinny the dispatcher. Al-
banese complained to Massa that Vinny was high strung and
yelled at Albanese frequently and he didn’t like the way Vinny
was speaking to him. Massa replied, “I’ll take care of it.”
While Albanese did not know, what if anything Massa did
about his complaints, for a period of time thereafter, Vinny
calmed down for a while and stopped yelling. Subsequently,
Vinny began yelling at Albanese again, but by then he realized

.
3 Although Scatigno did not see Massa, he believes that Massa must
have been in the lot at the time.
it was not personal, learned to live with the problem, and did
not complain again to Massa.
On another occasion, Albanese spoke to Massa about a prob-
lem with Southern Container. Albanese had an argument with
a dispatcher at Southern Container, and told Frisina that he
didn’t want to be assigned there anymore. Albanese did not
recall Frisina’s response, but subsequently he was again as-
signed to Southern Container. However, Albanese called in
sick that day, because he didn’t want a confrontation. Massa
called Albanese and asked what happened. Albanese explained
the whole story, as outlined above. Massa told Albanese that
he would try to keep him out of Southern Container, and would
get him “better work.” Thereafter, Albanese was not sent back
to Southern Container, but was given other assignments such as
Piers or Combined Container.
On several other occasions, Albanese asked to perform some
postal work. Massa replied that he would “see what I can do.”
Shortly after these requests, Albanese began to receive some
postal assignments. Albanese would also, on occasion, when
the schedule was not posted, ask Massa where he would be
working the next day, and Massa would inform him of his
assignment
Also, during his employment by Respondent, Massa was one
of three representatives of Respondent, Frisina and Meyers
were the others, who authorized Albanese to have repairs done
on Respondent’s vehicles at Hub, the company that performed
repairs on Respondent’s equipment. At times Massa would
authorize the repairs, without checking with anyone.
Finally, Albanese had an accident and was out of work from
October to March. During the last month of his injury, Massa
made several calls to Albanese, asking when he was coming
back to work, and telling Albanese that Respondent needed him
because “its busy.”
Melendez was also hired in August 1999. He was also inter-
viewed and hired by Frisina. Shortly thereafter, Melendez was
introduced to Massa by Vinny. They shook hands, and Massa
told Melendez, “I’m in charge. If you have any problems,
come and see me.” Melendez observed Massa thereafter fre-
quently in Meyers’ office or on the phone in Massa’s office.
Melendez considered Massa to be a boss and above Frisina in
Respondent’s hierarchy.
As for specific incidents involving Massa, Melendez was
working at Island and Combined Container. Melendez noticed
that Island and Combined were renting boxes and trailers from
an outside company. He told that to Frisina, and suggested that
these companies could rent these items from Respondent. Fris-
ina replied that this was a good idea, and said, “[C]ome and tell
Bill.” They both immediately went to see Massa, and
Melendez made his suggestion. Massa called these customers,
and in Melendez presence, said, “[M]y driver says you are rent-
ing boxes from an outside company. We can give you a good
price.” After some negotiations, Respondent made a deal to
supply the items to the customers.
Shortly after Melendez started working, Massa observed
Melendez driving too fast in the yard. Massa pointed to a sign
and said, “[T]his is a five miles an hour zone. Didn’t nobody
tell you? You’ve got to obey the rules.” He added, “[Y]ou are
going to obey the rules, and I can enforce them.” On another
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962
occasion, Melendez heard Massa criticize employee John for
lateness. Massa told John, “[Y]ou are going to be out of here if
you keep coming late like this.” Shortly thereafter, John was
terminated.
Anthony Smith was hired in November 1999. He had known
Massa from a previous job. Smith saw an ad in the paper for a
job with Respondent. When Smith called up Respondent he
spoke to a Lee Brown another employee who also knew Massa
from another job. Brown told Smith to come down and fill out
an application and told him that Massa was working at Respon-
dent.
When Smith arrived, a secretary gave him an application to
fill out. After Smith filled it out, she called Massa out from his
office. Massa asked how Smith was doing and where had he
been working. After Smith answered, Massa told him what
Respondent offered with respect to salary, vacation, and medi-
cal benefits. They also discussed that job consisted of deliver-
ing trailers, picking up trailers at the post office, and dropping
them off in New Jersey and other delivery work. He also told
Smith that he would need to pass a road test and a drug test.
Massa then brought Smith to Vinny the dispatcher, and in-
structed Vinny to give Smith a road test. Smith took the test,
and Vinny told Massa that Smith had passed.
At that point, Massa took Smith in to see Frisina, and Massa
introduced Smith as “our new employee who is starting next
week.” Frisina then filled out some additional paperwork, and
set up the drug test and fingerprinting for Smith. Later on that
week, Smith was called, by whom he did not recall, and told to
come to work.
Smith had a problem with his tractor, and the drive shaft fell
out. He reported the incident to Vinny, who dispatched another
truck to hook up to the trailer and the other truck was towed. A
few days later, Smith was spoken to by Massa about the inci-
dent. Massa instructed Smith to be careful, and told him that
they, meaning Hub, the owner of the tractor, put it down as
driver’s neglect.
On another occasion, Massa called Smith on the radio and
told him to stop sleeping on the side of the road. However, it
does not appear that Smith received any written warning or
other discipline for this conduct.
Thomas Winkler began his employment with Respondent in
August 1999. He was hired by Frisina. On that day, Winkler
was introduced to Massa, who said to him, “[W]elcome to
Meyers.” Massa did not tell Winkler what his position was at
Respondent, but Winkler believed him to be part of manage-
ment.
This was because Massa had his own office, and various
other incidents that occurred. Thus, on one occasion, Massa
informed Winkler that someone from Eastern Warehouse had
called Massa, and said that Winkler was doing a great job. On
another occasion, Winkler asked Frisina for a raise. Frisina
directed Winkler to go see Massa. Winkler then asked Massa
for a raise, pointing out among other things the compliment that
he had received from Eastern Warehouse. Massa replied that
he would get back to Winkler. However, Winkler never re-
ceived a raise, and never spoke to Massa about his request
again. Additionally, several times Massa asked Winkler to
work overtime, either on a Saturday or later on a particular day.
Winkler also dealt with Massa a number of times concerning
repairs or other problems with Respondent’s trucks. Thus,
while he was at Eastern Warehouse doing a pickup, Massa
called him on the radio. Massa asked Winkler if the vehicle
had a temporary plate on it. Winkler said yes. Massa told
Winkler that “it’s no good,” and that he was going to have to
bring down a new plate for the trailer. Thus, Winkler waited
for Massa to bring down the new license plate.
There was another incident, when Winkler was taking a load
to New Jersey; the truck started to overheat. He reported the
problem to Vinny, who in turn switched him over to Massa.
Winkler explained the problem and asked Massa what he
should do. Massa asked how far away he was from the stop.
Winkler replied that he didn’t want to blow the engine, and if it
was his call, he wouldn’t drive it, because a motor is a lot of
money. Massa instructed Winkler to go ahead and drive the
tractor. Winkler did so, and the motor blew.
Another time, Winkler was in the drivers’ room. He in-
formed Massa that his headlight switch was burnt out. Massa,
without checking with anyone, told Winkler to go to Hub and
get the problem fixed. Winkler also received direct authoriza-
tion from Massa to go to Hub and fix another mechanical fail-
ure on his tractor.
Finally, Winkler also dealt with Massa when he had an acci-
dent, was stopped by the police, and there was no paperwork in
the tractor. Again, he called Vinny, who in turn put Winkler in
touch with Massa. The tractor was not one of Respondent’s
vehicles, but a rented vehicle, which Winkler explained did not
have any paperwork in it. Massa told Winkler where to look
for the paperwork. Winkler replied that he already looked
there. Massa ordered him to look harder. He looked again, but
still could not find the paperwork. Finally, the police agreed to
let Winkler continue on, and that Respondent would be allowed
to fax in copies of the insurance card and registration. Winkler
had no further dealings with Massa concerning this incident.
Harry Grota was hired by Respondent in March. Grota was
formerly employed by a company that used to perform trucking
work for Southern Container, an account that Respondent ac-
quired. Grota heard that Respondent was hiring and he was
recommended by another driver to Frisina. Grota met with
Frisina, was given a road test, and they discussed wages and
benefits. Frisina told him that he would be hired and wanted
Grota to start right away. However, Grota wanted to finish out
the week with his prior employer. Frisina gave him an applica-
tion to fill out and told him to fill it out, and bring it back when
he was ready to start.
On the Saturday before he started work for Respondent,
Grota went to Respondent’s facility. He asked to see Frisina,
but Frisina was not there. The secretary suggested that he
could speak to Massa. Although Grota did not know for sure
who Massa was at the time, he had been previously informed
by a driver named Mike who used to work at Respondent that
Massa was “second in command,” and a “boss” at Respondent.
Thus he agreed to speak to Massa. Massa came out of his of-
fice, and asked Grota to come into the office and close the door.
Massa introduced himself, but did not tell Grota his position
with Respondent. Grota did not ask, but assumed Massa to be a
man in authority. Grota told Massa of his extensive experience
MEYERS TRANSPORT OF NEW YORK 963
in the industry, including 17 years at Texaco, as well as experi-
ence with Southern Container. He also told Massa that he
wasn’t looking for a lot of hours, only 8 to 10 a day. Massa
replied, “I have no problem with that.” Massa explained Re-
spondent’s benefits and Grota brought up the subject of wages.
In that regard, Frisina had initially told Grota that Respondent
starts at $13 per hour, and after 90 days, goes to $15 per hour.
Grota had not complained to Frisina about that at the time of
his initial interview, but during this conversation with Massa
decided to make a pitch to shorten the time period. Thus, he
said to Massa that he had already been doing Southern Con-
tainer work for a long time, he knew it well, and he was not
going to learn to drive a truck much better. Therefore, he asked
if Respondent could shorten the 3-month period before he gets
his raise. Massa replied that Grota should see him about it in a
month and a half.
Pursuant to Massa’s instructions, a month and a half later
Grota tried to see Massa about the matter. He asked the secre-
tary if Massa was in. She suggested that he check in Massa’s
office, but he was not there. The secretary told Grota that
Massa was in a meeting in the other trailer. Grota cut through
Massa’s office, in order to go to the other trailer where Massa
was in the meeting. Massa came out of that office where he
was meeting with Mike Meyers. Grota said to Massa, “I came
to see you.” Massa became angry, and told Grota, “I don’t
want you going through my office. That’s not a short cut. If
you want to see me, you can go around.” Massa then instructed
Grota to go around to the other trailer and wait for Massa to
finish his meeting. After waiting for 20 minutes, Massa called
the secretary who relayed a message that Massa was too busy to
see Grota that day and to see Massa next week.
A week later, Grota again asked the secretary to see Massa.
He was again in a meeting. The secretary called Massa in the
meeting, and reported back to Grota that Massa was busy in a
meeting and could not see him that day. Grota never did speak
to Massa again about the raise and did not receive a raise until
his 3-month period had expired.
Massa testified that he was hired by Respondent as a “lead-
man” in July 1999. According to Massa, his primary responsi-
bilities in that capacity was to act as fill-in driver, to drop off
and pick up trucks to Hub for repairs, and move trucks and
trailers around in the yard. He claims that he spent 20 hours a
week driving a truck. Massa denies that he had the authority to
hire, fire, suspend, reprimand, or give raises.
However, Massa admits that he acted as sort of a “buffer
zone” between Respondent and employees. In that connection,
he would transmit requests or complaints that employees made
to him to Frisina, as well as transmit instructions and or com-
plaints from management to employees. He testified to some
examples of his conduct in this regard. They include receiving
information or complaints from drivers about a breakdown or a
repair that might be needed. In such a case, Massa contends he
would collect the information, and call either Frisina or Meyers
for a decision on what needs to be done. He would then trans-
mit the instructions to the driver.
He also recalled speaking to drivers about complaints from
customers about their performance, but asserts that in these
cases he would be do so upon instructions from Frisina or
Meyers to so inform the employee of what they had done
wrong. Massa also testified that he was told by Meyers to call
Smith and inform him that when the drive shift on his truck fell
out it was declared by Hub to be “drivers neglect.” Hub was
trying to bill Respondent for the repairs, so Meyers wanted
Massa to so inform Smith and to tell him, which he did to “be
careful with the trucks.”
Massa also denied having the authority to switch employee
routes, but admits that if an employee made a request for a
route change, he would transmit such a request to Frisina or
Meyers, and or transmit their decision to the employee.4
Although he admits transmitting to Frisina employee com-
plaints about particular runs or about customers, he denies
transmitting employee requests to him for raises to Frisina or
Meyers, because according to Massa, “I felt it wasn’t my posi-
tion to go to management and talk to them about it.”5
Massa also admits that when drivers came to him with com-
plaints about various matters such as that they were unhappy
with a certain run, he would tell the employees, “I’ll see what I
and do for you?” He would then try to help employees get off
the run, by transmitting the request to Frisina, and recommend-
ing that the run be switched. According to Massa, in such
cases, sometimes Frisina would make the switch, and some-
times he would not.
Frisina testified that both he and Meyers knew Massa from
other jobs when they hired him. According to Frisina, Massa
was brought in “to make the business go forward.” Massa
filled in for drivers who were out, moved trucks around in the
yard, and sent out new vehicles if a truck was down. Massa
also introduced Respondent to certain people. These introduc-
tions led to new business.
Frisina also admitted that Massa would transmit to him com-
plaints or grievances from the men, and at times give his opin-
ion about the matter. However, accordingly it was always Fris-
ina’s ultimate decision on the particular issue. Thus, Frisina
asserts that drivers would complain to Massa about problems
with their truck or about needed repairs. In such cases, Frisina
would take care of the matter by either calling Hub himself or
instructing Vinny to do so.
Frisina also testified that Massa did not have a private office,
but that office in question was by Massa for his sales calls, and
other matters. He also contends that the office is used by others
who wish to make private calls, such as Vinny or other em-
ployees, and even at times by Frisina himself.
C. The Organizational Campaign for Local 707
In late April and early May Smith began discussing the pos-
sibility of Local 707 becoming the bargaining representative for
Respondent’s employees with several employees including
Melendez, Albanese, and Aprile. Most of these discussions
took place off the premises, at various stops on Respondent’s

4 Thus, Massa did not recall a conversation with Scatigno about not
going to Southern Container. However, he admits that he might have
been instructed to inform Scatigno of such a decision. As noted above,
I have credited Scatigno’s version of their discussion, wherein Massa
said to him, “I won’t send you back there anymore.”
5 Interestingly, Frisina contradicts Massa on this point, and testified
that Massa did transmit Winkler’s request for a raise to him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 964
route, or delicatessens and restaurants, but there were a few
such conversations at the Melville facility, in the driver’s room,
the yard, or the parking lot.
In late April, Smith contacted Local 707, and was put in
touch with Lou Capinello, who gave Smith authorization cards
to distribute. Smith thereafter distributed cards to approxi-
mately 10–15 employees, including Albanese, Melendez, and
Aprile. He also gave these employees cards to distribute to
other employees, which each of them did during early May.
Smith and Albanese signed their cards on May 3, and Albanese
signed his card on May 2. All of the discussions about and the
solicitations of authorization cards took place away from Re-
spondent’s premises.
On or about May 6, Capinello informed Smith that he had set
up a meeting for employees with union representatives on Sat-
urday, May 13, at the Knights of Columbus Hall. Smith, over
the next week, contacted a number of employees to inform
them about the meeting. These employees included Melendez,
Aprile, and Winkler.6 The other three employees also dis-
cussed the meeting with other employees. However, all of
these discussions about the meeting took place away from Re-
spondent’s facility.
On Saturday, May 13, the meeting was held as scheduled. It
began at 10 a.m., and lasted until 12 noon. Present were Cap-
inello and two other Local 707 representatives. Initially, the
employees present were Smith, Aprile, Melendez, Winkler,
Albanese, and John Ballou. During the course of the meeting
employee John Ponce arrived. When Ponce arrived, Smith
testified that he shook his head and his “stomach hit the
ground,” because he did not trust Ponce, and thought he was
“more towards the company, kiss butt.” In fact, Smith had
made it a point not to discuss Local 707 with Ponce and had not
informed Ponce about the meeting. Smith in fact asked Ponce
how he found out about meeting, and Ponce replied that he
heard about it from “some guy.” Smith asked who it was, and
Ponce answered that he did not know, but that he was talking to
a couple of drivers and he heard about the meeting. Ponce then
sat down next to Smith, and asked Smith to identify the names
of the employees present. After Smith identified the others
present, Ponce stayed for a few minutes and said that he had to
go to the bank and cash his check, but he would be back.
Ponce never returned.
During the course of the meeting, Smith gave Capinello the
signed cards that he had obtained, including the cards of Al-
banese and Melendez. Ballou also signed a Local 707 card
prior to the meeting, although the record is not clear where his
card was given to Local 707. Aprile signed his card for Local
707 at the May 13 meeting, and gave it in to Capinello.
Winkler did not sign a Local 707 card either at or prior to the
meeting. He did eventually sign a Local 707 card, but not until
May 18.
Sometime during the week of May 15, after employees were
laid off, Smith encountered Ponce across from Levitz, one of
Respondent’s stops. Smith asked Ponce if he would sign a card

6 When Smith discussed the meeting with Winkler, at first Winkler
said, “[L]et me think about it.” Then after thinking about it, Winkler
got back to Smith and said that he would attend.
for Local 707. Ponce replied that he did not want to get in-
volved because he was putting in for another job. Smith replied
since he was leaving anyway, can he please sign the Local 707
card. Ponce said no, he was putting in for a job with the Long
Island Railroad.
D. The Layoff
Normally, Respondent posts a schedule at its premises of
where drivers are to assign for the next working day, between 3
a.m. and 6 p.m. of the prior working day.7
On Friday, May 12, in the late afternoon, Melendez looked at
the schedule for Monday, May 15, and noticed that the word
“off” was next to his name. He asked Vinny why he was off?
Vinny replied, “I don’t know. You’ve got to see Lou.”
Melendez, as noted, was hired by Respondent in August 1999.
Prior to the layoff Melendez had been regularly assigned to
truck 6, which serviced Combined Island Container, had
worked 65 hours the prior week and averaged 60 hours per
week.
Albanese, who was also hired by Respondent in August
1999, as of May 12, was doing work primarily for U.S. Postal
Service. He, as well as most other employees of Respondent
were averaging, 60 or more hours a week.
Albanese got into an accident and was out of work from the
end of October 1999 until May 2000. On Friday, March 12, in
the late afternoon Albanese was told by Vinny to call on Mon-
day to see if there was work, because it might to slow. Al-
banese did not see a list posted when he was there on May 12.
Smith, who was hired by Respondent in November 1999,
worked for various accounts of Respondent including U.S.
Postal primarily, but occasionally Southern Container or Com-
bined Island. On Friday, May 12, he was delivering flowers.
For that week Smith worked 60 hours, and for the previous
week, he put in 55–60 hours.
At around 3 p.m. on May 12, Vinny contacted Smith and
told him that he had to work on Saturday, May 13. Smith re-
plied that he had plans with his wife and had already worked 60
hours. Shortly thereafter, Smith received a call from Massa,
who instructed him that since he can’t work on Saturday, to
hand in his radio when he gets back to the premises. Smith
made no response.
Later on in the day, Smith received a call from Melendez
who informed him that some guys had been told there is no
work for them on Monday and asked Smith to try to find out
what was going on. Smith then called Vinny and asked what
was going on for Monday. Vinny replied that it was “slow,”
and instructed Smith to call Frisina on Monday. Instead, Smith
contacted Frisina immediately, who told him Respondent was
slow and to call on Monday to see what was going on. At
around 6 p.m., Smith called Massa and asked why he had to
hand in his radio. Massa answered that “it’s slowing down,
there’s nothing going on.”
Winkler, who was also first employed by Respondent in Au-
gust 1999, worked on various accounts including Eastern Ware-
house, Phoenix Warehouse, U.S. Postal (40 percent of his
7 Some employees however will call on to find out their assignment,
either that day or on the day of work.
MEYERS TRANSPORT OF NEW YORK 965
time), and Southern Container, only when someone was sick or
Respondent needed a replacement. During the week ending
May 12, Winkler worked 60 hours for Respondent. On May
12, at 4 p.m., Winkler received a call from Massa over the ra-
dio; Massa asked Winkler if he could work on Saturday, May
13, doing U.S. Postal work. Winkler said no, that he had other
things to do. Later on that night, Massa called Winkler again
and asked him to do an extra run that same evening, and that
assignment Winkler performed. Massa said nothing about lay-
offs during these conversations, and when Winkler went to the
facility after his extra run, it was after 7 p.m., and he did not
bother to see if a schedule was posted for work on Monday. In
fact, it was Winkler’s custom to call Respondent the day before
work to find out his assignment. Accordingly, on Sunday, May
14, Winkler called Vinny. Vinny informed Winkler that he was
off on Monday. Winkler asked why? Vinny answered, “[I]t’s
slow,” and suggested that Winkler call Frisina on Monday.
On Monday, May 15, Albanese reported to Respondent’s fa-
cility, and was given an assignment. Smith and Melendez
asked Vine what was going on? Vinny answered, “[I]t was
slow,” and to speak to Frisina. Later on that day, Melendez did
speak to Frisina, who informed Melendez that work was
“slow.” Melendez replied that even if work is slow, he has
seniority over some people who were working. Frisina did not
answer or dispute that assertion, and merely told Melendez that
is slow, he wasn’t working and “to call tomorrow.”
Winkler also went to Respondent’s premises on Monday,
and was told by both Vinny, and later on to Frisina, that work
was slow. Frisina told Winkler that Respondent had let a lot of
driver’s go. In that regard both Winkler and Smith looked at
the work schedule on Monday, and noticed that from five–
seven people had “off” next to their names, primarily the em-
ployees who attended the Union meeting on May 13.8
While on his route on May 12, Albanese was stopped for an
inspection at the Department of Transportation. After Albanese
reported this to Vinny, Mike Meyers arrived. Albanese asked if
he was going to be laid off? Meyers replied yes, work was
slow and Respondent had lost, “a couple of things.” Albanese
asked why he was being laid off when Respondent was keeping
guys that were hired after him. Meyers responded, “[T]hey do
different things.” Albanese then reported back to the office,
where Vinny informed Albanese that he wasn’t supposed to
have worked that day and that he was laid off because work
was “slow.”
Aprile was hired by Respondent in March 2000. From the
time of his hire, he worked primarily for Respondent’s account,
Southern Container.9 Indeed, as of April 10, Respondent sent a
memo detailing procedures for employees working at Southern
Container, which included the names of nine employees, in-
cluding Aprile. These employees are instructed to report di-
rectly to Southern Container locations either in Deer Park or
Happauge.

8 Smith recalled that Haywood Jennings, who was not at the meet-
ing, had “off” next to his name.
9 Aprile had previously been employed by Lily Transportation, the
contractor that serviced Southern Container before Respondent ac-
quired the account.
Monday, May 15, was Aprile’s scheduled day off. He called
Frisina on that afternoon to find out about work for the next
day, May 16. Frisina told Aprile that he wasn’t scheduled to
work because things were “slow.” Frisina added that Respon-
dent had “lost a couple of accounts.”
Several of Respondent’s employees were skeptical of Re-
spondent’s claim that work was “slow,” particularly since they
all had worked overtime hours during the prior weeks. Thus,
Aprile went to Respondent’s facility to speak to Frisina and
Massa (who Aprile characterized as Frisina’s boss). Aprile
asked Frisina why he was being laid off. Again Frisina replied
that it was slow. Aprile responded that he was a permanent
driver for Southern Container, and had been requested by
Southern Container, and other drivers working at Southern
Container who were hired after Aprile, were still working.10
Frisina replied that drivers with more seniority than Aprile were
laid off also. Frisina added that Respondent “just went down
the list and chose names to decide who was going to be laid
off.” Aprile replied that he knew that Frisina had someone
driving his truck already, named Peter who had been a problem
employee in the past. Frisina reported that things were slow
and he did not have to give any more reason than that. Aprile
then asked if the layoff has anything to do with the Union.
Frisina answered, “[W]hat Union. I know nothing about a Un-
ion.” Aprile responded that it was funny “how all the guys who
had anything to do with the Union, we all have lost our jobs.”11
On Wednesday, May 17, Melendez went over to Combined
Island Container where he had been assigned to see if there was
work. He spoke to foremen at both companies and was told
there was “work.” Melendez then went to Respondent and
confronted Frisina. He told Frisina that he had been over at
Combined Island and there was work. He added that he had
10 It is not clear on what basis Aprile made this statement, since he
was hired on March 13, 2000. He may have believed that his experi-
ence at Lily Transportation, the prior contractor for Southern Container
should have been counted. Nonetheless, Respondent’s records reveal
that two employees working at Southern Container, Bob Mack and
Harry Grota, were hired by Respondent on March 20, 2000, a week
after Aprile.
11 My findings with respect to Aprile’s conversations with Frisina
are based in part on Aprile’s pretrial affidavit. While Aprile identified
his signature on the affidavit, and he admitted that he furnished it to the
General Counsel, he testified that he either did not remember or denied
certain portions of the affidavit. However, Aprile was a most reluctant
witness. He was subpoenaed by the General Counsel, and at the start of
his testimony asked to be excused and not be compelled to testify. He
has since the layoff been reinstated by Respondent. I conclude that
Aprile having been recalled by Respondent, and believing that he was
laid off for his union activities, was not anxious to antagonize Respon-
dent in this proceeding by furnishing testimony adverse to Respon-
dent’s position. I therefore find that the affidavit reflects a more accu-
rate recitation of his conversations with Frisina, than his contrived lack
of recollection at trial, and shall credit the same. The Board has consis-
tently permitted the use of affidavits as substantive evidence in similar
circumstances. Three Sisters Sportswear Co., 312 NLRB 853, 865
(1993), enfd. mem. 55 F.3d 684 (D.C. Cir. 1995); Yaohan U.S.A. Co.,
319 NLRB 424, 426 (1995); St. John’s Trucking, 303 NLRB 723 fn. 3
(1991); New Life Bakery, 301 NLRB 421, 426 (1991); Snaider Syrup
Corp., 220 NLRB 238 fn. 1 (1975); Starlite Mfg. Co., 172 NLRB 68,
72 (1968).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966
seniority and someone else was filling in for him with less sen-
iority.12 Frisina did not respond to Melendez’ complaint about
seniority, and reiterated that “it’s slow” and added, “[Y]ou
probably won’t be working for a while.” On Friday, May 19,
Melendez went to Respondent’s facility to turn in his keys and
his radio pursuant to Frisina’s instructions, and to pick up his
paycheck. Melendez encountered Meyers, and asked Meyers
why he wasn’t working? Melendez added that it wasn’t slow at
Combined, and criticized Respondent for bumping other guys
around and laying him off out of seniority. Meyers replied,
“[Y]ou know, I have to check into it.” At that moment, Massa
came over and ordered Melendez to “go in and turn your radio
and everything else.” Massa then started talking to Meyers and
Melendez left.
Albanese also returned to Respondent’s facility on Tuesday,
May 16, to turn in his keys. Frisina told him at that time,
“[Y]ou’re done, there’s nothing for you.” Later on that week,
Albanese went back to the facility to talk to some of the drivers.
At that time, he observed one employee driving a truck and
doing postal work, who had been employed by Respondent for
only 2 or 3 weeks. Albanese also saw an ad in Newsday, a
newspaper in Long Island, during that week, wherein Respon-
dent was advertising to hire drivers.
In late June, Respondent offered Aprile, Albanese,
Melendez, and Smith reemployment. Aprile, Albanese, and
Melendez accepted the offers and returned to work. Smith was
sent a written offer of reinstatement by certified mail. How-
ever, Smith never received the letter, since he did not go to the
post office. When Winkler heard that other drivers had been
reinstated, he called Frisina and asked when would he be re-
turning. Frisina answered that Respondent had not called
Winkler back because of the accidents that he had. Winkler
replied that the accidents were not his fault. Sometime in late
July, Frisina spoke to Winkler, and told him to report to work.
Winkler accepted Respondent’s offer, and returned to work.
Frisina was Respondent’s only witness who testified con-
cerning the decision of Respondent to lay off employees. Ac-
cording to Frisina, when he was hired in the summer of 1999,
Respondent was a small operation with approximately 12–15
trucks. He further asserted that by the end of 1999 business had
substantially increased, and it had 35–40 trucks. Early in 2000,
Frisina further asserted that Respondent began to perform cer-
tain work for the U.S. Post Office known as “proxy” work.
This work involved a company call ADP which would produce
and collate proxy documents, which Respondent would trans-
port to various post office facilities. Frisina’s recollection as to
when this “proxy season” ends changed several times over the
course of his testimony. When testifying initially on direct,
Frisina asserted that the season ends in late April or early May,
and that Respondent received notification by letter dated May
12 from the post office that their work would be substantially
reduced due to the proxy season. Thus is a result of this letter,
Frisina testified that he and Meyers decided that Respondent
needed to lay off some employees as of May 15. He also testi-
fied that he and Meyers made the decision to lay off employees

12 Melendez had seen a list of drivers at Combined Island, and no-
ticed that at least one of the drivers had less seniority than Melendez.
on Friday, May 12. More specifically when asked why the
decision was made Frisina testified, “[R]eduction in work, we
slowed down. There was a period where we slowed down a
little bit.”
On cross-examination, Frisina was asked again to explain
Respondent’s decision. At that point, he testified that Respon-
dent was tremendously busy during the Christmas season,
which carries into January through early March. Then he testi-
fied, “March obviously ends our proxy season.” Then Frisina
explained that everything drops off “for the next couple of
months.”
Later on in his testimony, Respondent asked a clearly lead-
ing question to Frisina, “If you know, May as a point in the
calendar year, that would be the end of the proxy season, cor-
rect?” Frisina responded, “I would assume, or prior to that. I
have no idea because I don’t know what Mike was doing.”
Frisina also charged his prior testimony concerning when
and how Respondent made the decision to lay off employees.
As noted initially, he attributed the decision to the letter from
the Post Office, dated May 12. This letter from Michael Simp-
son of the Postal Service to Mike Meyers, reflects that as of
May 15, 2000, due to the culmination of the proxy season, the
post office’s need for extra equipment will “drop drastically,”
and “we will not be calling on your company for as much extra
service.” When asked further about this letter Frisina testified
he “assumed” that Meyers received it on May 12. When it was
pointed out that the letter reflects that it was received by fax on
June 14, 2000, Frisina testified that “I’m sure the original was
sent over at the time.” When asked when he first saw it, Frisina
indicated that he didn’t know about it until several days later,
but adds that he knew that Meyers was speaking to Simpson
and was informed that business was slowing down. Thus, he
claims that the decision was made before Respondent received
the letter, and Frisina testified, “I assume he [Meyers] figured if
anybody’s going to ask why I’m getting laid off, I guess he’d
have something in documentation to show anybody, that they
slowed down.”13 Frisina further testified that he and Meyers
began discussing the possibility of layoffs on or about May 5,
when Meyers allegedly informed Frisina that business was
slowing down from the post office, and that layoffs would be
necessary. According to Frisina, Meyers told him that Respon-
dent was coming out of the proxy season, which runs 2–3
months after the Christmas rush. At that point, Respondent
would not need a dozen or so drivers, because work would be
slow.
After several further discussions, between Frisina and
Meyers, Frisina contends that on May 10, Respondent decided
to lay off eight or nine employees, and made the selection of
whom to lay off. In that regard, Frisina testified that Respon-
dent did not consider seniority as a factor, and made its deci-
sion based on a review of the performance of all its drivers.
Frisina conceded that Respondent continued to run an ad in
Newsday as well as another publication, Pennysavers, for em-
ployees during the period of the layoff, and that it continued to
accept applications and interview employees during this period.
13 The record reflects that Local 707 filed its charge of May 17, and
the charge letter was sent out May 22.
MEYERS TRANSPORT OF NEW YORK 967
However, Frisina insists that no employees were hired during
the period of the layoff, and that he recalled the employees
when post office business picked up and Respondent acquired
some new accounts.
As for why Respondent selected the five discriminatees for
layoff, Frisina asserts that he laid off Albanese, because Al-
banese had informed Respondent that he did not want to work
for Southern Container. As for Melendez, Aprile, and Smith,
Frisina testified that he received complaints from representa-
tives of Southern Container about the conduct of these employ-
ees, wherein they allegedly asked that these employees not be
sent back there. These alleged complaints ranged from too
slow, not calling in, and getting lost (Aprile and Melendez), and
getting caught sleeping on the road (Smith).
However, Frisina admits that Respondent never issued any
written or oral warnings to any of these employees about these
alleged complaints.14 Moreover, Frisina did not detail when
these complaints were made or who specifically made them or
how often Respondent received such complaints about these
employees.
As for Winkler, Frisina initially testified that Winkler was
selected for layoff because he had two accidents, and because
he blew out two engines on his truck. According to Frisina, he
was informed by representatives from Hub that the blown en-
gines were due to lack of water and oil which Frisina believed
was caused by Winkler’s failure to make his pretrial inspection.
On further examination, however, Frisina changed his testi-
mony and included Winkler along with Aprile, Melendez, Al-
banese, and Smith as employees whom either refused to work
for Southern Container or Southern Container had asked that
these employees not be sent to work there.
Winkler admitted that he had two accidents during the year
2000, but claims that neither accident was his fault, and that
Respondent had accepted this fact. Indeed, Frisina conceded
that Winkler was not found to be at fault in either accident.
As for the blown engines, as related above, Winkler credibly
testified (without contradiction from Massa), that he told Massa
that his truck was overheating, and recommended that he not
complete his run and get the truck repaired. However, Massa
ordered him to complete the delivery, and the engine blew as a
result.
Frisina was asked about prior layoffs, and more specifically,
whether or not Respondent laid off employees in May 1999,
when the proxy season ended. Frisina was not employed by
Respondent in May 1999, so he could not be certain of what
Respondent did at that time or whether it laid off employees in
May 1999 or anytime prior thereto. However, Frisina asserts
that he believes that Respondent did not have the proxy season
business in early 1999. Thus, while Respondent did have post
office business in early 1999, Frisina did not believe, although
he was not certain, that Respondent had that phase of the busi-
ness, since Respondent had only 15 trucks in May 1999 and
could not have handled the proxy season business with so few
trucks.

14 Smith did testify that he was reprimanded by Massa for sleeping
on the road. However, he was not warned that his job was in jeopardy
because of this incident.
Meyers, who of course could have given definitive testimony
about Respondent’s past practice, its prior layoffs if any, as
well as testimony concerning the necessity for Respondent to
lay off employees did not testify.
Testimony was provided, however, by employee Melendez
that during Christmas, when work was slow because one of
Respondent’s customers closed for the week, Respondent asked
employees to voluntarily take time off. Some employees
agreed to this “voluntary” layoff. This testimony was not de-
nied by Frisina or Massa and is therefore credited.
Frisina testified that in addition to the five discriminatees,
Respondent included three or four other employees in the layoff
as of May 12. One was Haywood Jennings, who Frisina testi-
fied was included, because he had gone on a routine delivery
and disappeared for 3-1/2 days without calling either Respon-
dent or his family. Moreover, Frisina asserts that Respondent
had prior incidents with him also, “but this was major as far as I
was concerned.”
Walter Bryson was also included according to Frisina be-
cause he was in an accident, wherein he “wrecked a truck,” by
hitting a low bridge at an underpass, which Frisina described as
100-percent driver’s neglect.
Frisina also contends that he included Anthony Wilson in the
group to be laid off. Wilson was, according, to Frisina not
doing his job right and taking too much time to do something
that is routine.
Frisina testified that he also laid off a ninth person at the
time, but he could not recall the name or the reason for that
person’s selection. When asked for the reason this employee
was selected, Frisina responded, “[P]erformance, or it could
have been a recent hire.” When asked if that latter response
meant “recent hire” was a factor, Frisina replied, “[N]ot neces-
sarily, I had no seniority list. But he was just somebody that
obviously performance wise, we based on performance so ob-
viously he must fit into that category.”
Frisina also testified as noted that Respondent offered jobs to
Albanese, Smith, Aprile, and Melendez in June, when work
picked up. As also noted, he did not recall that Winkler’s rein-
statement was delayed because of his accidents. In that regard,
a termination form appeared in Winkler’s file, dated May 17,
which reflects that Winkler was terminated on that date because
of “accidents.” According to Frisina, this form, which was
never given to Winkler, was in the file only because Meyers
wanted some documentation for the insurance company, to
show that Respondent was taking action because of the acci-
dents.
Frisina concedes that Respondent did not offer jobs to
Jennings, Bryson, Wilson, or the unnamed ninth employee. As
for Jennings, Frisina explained that he did not offer Jennings
his job back, “because his was a blatant order for dismissal at
that point.” He gave no explanation for not offering recall to
the other three employees, other than his testimony that Bryson
had “wrecked a trailer.”
The number of employees employed by Respondent on or
about May 12 is unclear from the record. Testimony was re-
ceived from various witnesses that Respondent employed 55
employees, but it is not clear if this testimony covers before or
after the layoff. The General Counsel introduced an exhibit of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 968
Respondent’s payroll records for the week of May 19. How-
ever, no testimony was adduced explaining the exhibit, which
was admitted into evidence as Respondent’s payroll submitted
during the investigation. The document consists of nearly 80
names from a computer printout. A large X was placed through
many of these names, which appears to reflect that these em-
ployees were either terminated by Respondent prior to the week
of May 19, or were not in the unit. (Frisina, Massa, Mary
Froelich, Respondent’s secretary, and Vincent Digiolano, dis-
patcher.) Notably while Albanese, Smith, Melendez, Jennings,
Bryson, and Wilson had Xs through their names, as well as the
words “terminated” next to status, Aprile and Albanese are
listed as active employees, without an X. This is explainable
by the fact that Albanese did work on Monday, May 15, for one
route, and Aprile’s regular day off was on May 15, so wasn’t
laid off until May 16.
Accordingly, it appears that the number of Respondent’s
employees as of May 12 should include six of the employees
laid off. (Melendez, Smith, Winkler, Jennings, Bryson, and
Wilson.) Since the list contains 54 names, I conclude that as of
May 12, Respondent employed 60 employees.
Respondent’s records also reveals that during March, it hired
nine employees,15 in April, Respondent hired eight employees,
and on May 1, it hired one.16
Of this group of 18 employees, 15 of them were not laid off
on May 15 or 16 when the discriminatees were laid off by Re-
spondent.17
The records reveals that nine of Respondent’s employees
were assigned regularly to Southern Container, including
Aprile, and Mack and Grota who were not laid off, but had less
seniority than Aprile.
E. The Recognition of Local 713
On Tuesday, May 16, Massa obtained signed authorization
cards, medical authorizations, and dues-deduction authoriza-
tions, from 28 of Respondent’s employees on behalf of Local
713. According to Massa, he had been a member of Local 713

15 The nine employees are:
Anthony Wilson 3/6/00
Vito Scatigno 3/6/00
George Russo 3/13/00
Raymond Hunt 3/13/00
Robert Aprile 3/13/00
Robert Mack 3/20/00
John Ballou 3/20/00
Harry Grota 3/20/00
Harvey Smowden 3/20/00
16 The nine employees are:
Charles Chang 4/1/00
James Johnson 4/3/00
Joseph Cusimano 4/3/00
James Felton 4/3/00
Steven Schwally 4/10/00
William Brown 4/10/00
David Marraro 4/10/00
Joseph Walters 4/17/00
John Norman 5/1/00
17 Employees Scatigno, Russo, Hunt, Mack, Ballou, Grota,
Snowden, Chang, Brown, Marraro, Walters, Norman, Schwally, Felton,
and Cusimano.
at another job, and he obtained the cards from Peter Hasho,
president of Local 713 over the prior weekend.
Employees Ballou and Scatigno furnished testimony con-
cerning the circumstances of the card solicitation. They credi-
bly testified that Dante Russo, Respondent’s assistant dis-
patcher, informed them that Massa wanted to see them in
Massa’s office. There were groups of drivers in the driver’s
room at the time, and each driver was called into the office, one
at time. After speaking with Massa, the employee was told to
leave through a side door, and the next employee was called in.
Massa handed the Local 713 card, as well as the other forms
to Ballou and Scatigno, and requested that they sign the forms.
Ballou asked how signing these forms would affect pay in-
creases. Massa replied that there would be pay increases from
time to time. Ballou asked if he could think about it and bring
it back the following day. Massa replied, “[N]o, you have to
leave it today.” Ballou then filled out and signed the cards and
forms and returned them to Massa.
Scatigno was handed the cards and other forms for Local
713, and was told, “I need you to sign this paper work.” Sca-
tigno asked, “[W]hat is that for?” Massa replied, “[W]ell, its
for our Local. It’s 713.” Scatigno inquired, “[W]hat happens if
I don’t sign it.” Massa responded, “[W]ell, basically, you are
not going to have a job here.” Scatigno asked again, “[A]re
you telling me that I have to sign this in order for me to have a
job.” Massa answered, “[Y]es.” Massa also told Scatigno that
if he signed the card the employees would receive wage in-
creases and medical benefits. Scatigno signed his card and the
other forms and returned them to Massa. After the meeting
ended, Scatigno was told by about dozen other employees that
Massa had also told them during their meetings with Massa,
that Massa had threatened their jobs if they did not sign Local
713 cards.
I credit the testimony of Ballou and Scatigno as to their con-
versations with Massa on May 16, concerning the Local 713’s
cards. Massa admits telling employees about medical benefits
and does not deny mentioning wage increases. Massa does
deny threatening any employees with loss of their job if they
did not sign cards, but I credit Scatigno’s testimony in this re-
gard. I note that Scatigno is a current employee of Respondent,
and not a discriminatee in the instant matter. Therefore, his
testimony where it is adverse to his employer is considered to
be against his self-interest and therefore more worthy of belief.
Stanford Realty Associates, 306 NLRB 1061, 1064 (1992);
Molded Accoustical Products, 280 NLRB 1394, 1398 (1986);
K-Mart Corp., 268 NLRB 246, 250 (1983); Georgia Rug Mill,
131 NLRB 1304, 1305 fn. 2 (1961), enfd. as modified 308 F.2d
89 (5th Cir. 1962).
Additionally, I credit the testimony of Scatigno that a dozen
other employees told him that Massa had threatened them with
job loss if they did not sign cards for Local 713, and also find,
that in fact, Massa did make such statements to these other
employees. While this testimony is hearsay, it is well settled
that if no objection is made to the introduction of hearsay testi-
mony, the objection is waived and the evidence may be relied
upon. Iron Workers Local 46, 320 NLRB 982 fn. 1 (1996);
Teamsters Local 705 (Pennsylvania Truck Lines), 314 NLRB
MEYERS TRANSPORT OF NEW YORK 969
95, 98 fn. 4 (1994); Livermore Joe’s Inc., 285 NLRB 169 fn. 3
(1987).18
Moreover, even if objection had been made to the testimony,
the Board has long held that it will admit hearsay testimony if
“rationally probative in force and if corroborated by something
more than the slightest amount of other evidence. Dauman
Pallet, Inc., 314 NLRB 185, 186 (1994); RJR Communications,
248 NLRB 920, 921 (1980); Iron Workers Local 46, supra,
Livermore Joe’s, supra; Pennsylvania Truck, supra, see also
Sheet Metal Workers Local 28 (Borella Bros.), 323 NLRB 207,
209 (1997).
Here, the testimony is clearly “rationally probative,” and is
corroborated by Scatigno’s testimony of what Massa said di-
rectly to him. It is therefore appropriate to reply on such testi-
mony as substantive evidence.
In addition to the 28 cards that Massa obtained on May 16,
Massa signed his own card on that date, obtained one card on
May 15, two others on May 17, and one card which was dated
May 3. I find that this card was misdated, since it is clear that
Massa didn’t solicit any cards at that time. I conclude that this
card was obtained also somewhere between May 15 and 17.
Massa also received a signed card from Frisina, dated May 1.
Frisina, however, testified that he signed the card, after Re-
spondent recognized and signed a contract with Local 713, and
he signed up only to obtain medical benefits from Local 713,
retroactive to May 1.
On May 17, Hasho came to Respondent’s facility and Massa
gave him the 33 cards that he had solicited from Respondent’s
employees and Massa assured Hasho that these cards repre-
sented a majority of Respondent’s employees. Thereafter, Re-
spondent and Hasho on behalf of Local 713 arranged for
George Sabatella, an arbitrator that Hasho had used before, to
conduct a card check.
The next day, May 18, Sabatella came to the facility. Sa-
batella, checked the cards against Respondent’s payroll, and
issued a certification of majority status agreement dated May
18. On May 22, Respondent and Local 713 entered into a col-
lective-bargaining agreement, which provides for a standard
union-security clause. Although the contract has been en-
forced, Respondent has not enforced the union-security clause
and has not deducted dues from its employees.
On May 17, Local 707 filed a petition to represent Respon-
dent’s drivers, which petition is apparently blocked by the in-
stant complaint.
III. ANALYSIS
A. The Status of Massa
Section 2(11) of the Act defines “supervisor” as:

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust grievances, or effectively
to recommend such action, if in connection with the foregoing

18 Here, not only was no objection made to the question, but the tes-
timony was elicited from Scatigno during cross-examination by the
representative for Local 713.
the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgment.

It is clear that the possession of any one of the indicia specified
above is sufficient to confer supervisory status on an employee.
Sunnyside Farms, 308 NLRB 346, 347 (1992); Louisiana Gas
Service Co., 303 NLRB 908, 921 (1991).
I conclude that the General Counsel has established suffi-
cient credible evidence to meet its burden of proof that Massa
exercised independent judgment in connection with Section
2(11) activities. Thus, the record reveals several instances
where Massa received complaints from employees about prob-
lems on their routes and that Massa resolved these problems by
effectuating changes in their routes, such as having them no
longer assigned to Southern Container or to be assigned to U.S.
Postal routes.19 This evidence establishes that Massa used in-
dependent judgment in both assigning work and in adjusting
grievances, and is sufficient to find that he is a supervisor under
Section 2(11) of the Act. Sunnyside Home, supra; Louisiana
Gas, supra; Polynesian Hospitality Tours, 297 NLRB 228,
238–239 (1989); Cannon Industries, 291 NLRB 632 (1988).20
Additionally, the record reflects that Massa had an extensive
role in Respondent’s hiring process. Thus, it appears that he
hired or effectively recommended the hire of Smith, since after
interviewing Smith, ordered Vinny to give Smith a road test,
and introduced Smith to Frisina as “our new employee who is
starting next week.” Massa interviewed other applicants and
gave prospective employees road tests. I therefore find that
Massa’s role in the interview process is also supportive of his
supervisory status. Holly Farms Corp., 311 NLRB 273, 293
(1993).
Additional factors in the record which further support my
finding that Massa was a supervisor, include the facts that em-
ployees consider him to be a supervisor, K.B.I. Security, 318
NLRB 268, 269 (1995); Baby Watson Cheesecake, 320 NLRB
779, 784 (1996); Massa had his own office, Holly Farms, su-
pra, and Louisiana Gas, supra; Massa reprimanded several
employees for various transgressions, and Massa authorized
employees to have their trucks repaired.
Accordingly, based on the foregoing, I find that Massa was a
supervisor under Section 2(11) of the Act.
Moreover, even if I were to find the evidence insufficient to
establish Massa’s supervisory status, I agree with the General
Counsel that the evidence is more than sufficient to prove that
Massa was an agent of Respondent. In this regard, the test is
whether under all the circumstances, the employees would rea-
sonably believe that the employee in question (the alleged
19 I also note the incident where Winkler asked Massa whether
Winkler should continue on his route or bring his truck in for repairs.
Massa made the decision, without checking with anyone, that Winkler
should finish his run, notwithstanding Winkler’s recommendation to
the contrary.
20 It is true that in some of the above instances Massa told the em-
ployee, “I’ll see what I can do,” before the decision was effectuated,
leaving open the possibility that Massa needed and received approval
from higher management before the changes were made. However,
even if that were the case, Massa’s role in effectively recommending
these changes in assignments would be sufficient to establish that he is
a supervisor under Sec. 2(11) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
agent) was reflecting company policy and acting for manage-
ment. Zimmerman Painting & Heating, 325 NLRB 106 (1997);
Victor’s Café 52, 321 NLRB 504, 513 (1996); Kosher Plaza
Supermarket, 313 NLRB 74, 85–86 (1993). The facts here
establish, based even on Massa’s own testimony, that he was a
conduit for communicating management’s views and directives
to employees.21 Thus, many of the incidents described above,
where changes in job assignments were made by Massa, even if
as Massa testified, he was merely transmitting higher manage-
ment’s instructions, would be a clear indication that Respon-
dent placed him in a position so that employees would reasona-
bly believe that he was speaking for management. Zimmerman,
supra; Great American Products, 312 NLRB 962, 963 (1993);
Victor’s Café, supra; Kosher Plaza, supra; Jacobo Marti &
Sons, 264 NLRB 30, 32 (1982).
Other evidence supportive of this reasonable belief of em-
ployees, were (1) the incident where Massa called Albanese at
home while he was on sick leave and asked him when he was
coming back, and told him that Respondent needed him be-
cause, “its busy”; and (2) when Melendez recommended to
Frisina that Respondent attempt to persuade one of Respon-
dent’s accounts to rent boxes and trailers from Respondent,
Frisina replied, that it was a good idea and rather than dealing
with the request himself, brought Melendez into see Massa
about it. Massa immediately responded to Melendez’ sugges-
tion, by calling the client and stating, “[M]y driver says you are
renting boxes from an outside company.” This incident
strongly enforces the perception that several employees testi-
fied that they had, that Massa was higher in management’s
hierarchy than Frisina, Respondent’s general manager and an
admitted supervisor.22
Finally, I also note that Massa admittedly distributed au-
thorization cards to employees at Respondent’s facility, and
during working hours, which in and of itself is a significant
indication that he was acting for Respondent. Baby Watson,
supra at 785, Dentech Corp., 294 NLRB 924, 926 (1989).
Accordingly, based on the foregoing, I conclude that even if
Massa was not a supervisor under Section 2(11) of the Act, he
was clearly an agent for Respondent, and that Respondent was
responsible for his conduct in soliciting cards for Local 713.
B. The Alleged Unlawful Assistance to Local 713
My findings above that Massa was a 2(11) supervisor and or
an agent of Respondent, leads to the conclusion that Respon-
dent committed a number of violations of the Act, by virtue of
Massa’s conduct. Thus, it is not disputed that Massa distrib-
uted Local 713 cards to employees and either directed or asked
employees to sign such cards. Such conduct is coercive and
unlawful, even in the absence of any threats or promises of
benefit. Baby Watson, supra at 705; Kosher Plaza, supra at 84;
Famous Castings Corp., 301 NLRB 404, 407 (1991). There-
fore, I conclude that Respondent has violated Section 8(a)(1)
and (2) of the Act.

21 Thus, Massa testified that he was a “buffer zone” between man-
agement and employees.
22 In that regard, I note that Massa and Frisina were paid the same
salary.
Additionally, during his efforts to solicit employees to sign
cards for Local 713, Massa made threats to employees that they
would lose their jobs if they did not sign cards for Local 713.
These comments are clear violations of Section 8(a)(1) and (2)
of the Act. I so find. Baby Watson, supra; Brown Transport
Co., 296 NLRB 552, 553 (1989).
Similarly, Massa promised employees wage increases and
greater medical benefits if they signed cards for Local 713.
Such comments are violative of Section 8(a)(1) and (2) of the
Act. Baby Watson, supra; Christopher Street Owners Corp.,
286 NLRB 253, 254 (1987).
Turning to Respondent’s recognition of Local 713, I have
found that Local 713 submitted 33 cards23 for the cards count.
Therefore, Local 713 did obtain cards from a majority of em-
ployees in the unit, since as of the week of May 15, Respondent
employed 54 employees. However, the General Counsel con-
tends that Local 713 did not represent an uncoerced majority of
employees, due to Massa’s status and conduct during the solici-
tation of the cards. I agree.
Since I have concluded above that when Massa solicited the
cards, he made unlawful threats and promises to 14 employees,
their cards were invalidated, whether Massa is considered either
a supervisor or agent of Respondent. That reduces Local 713’s
card count to 19, which is short of majority status and leads to
the conclusion that Local 713 did not represent an uncoerced
majority of Respondent’s employees.
Moreover, since I have found, as related above, that Massa is
a supervisor and agent of Respondent, all of the cards solicited
by him are tainted and invalid. It is undisputed that Massa
solicited each and every card obtained by Local 713. There-
fore, none of the cards of Local 713 represent an uncoerced
choice of Local 713 as the representative of Respondent’s em-
ployees.
Accordingly, Respondent’s recognition of Local 713, not-
withstanding that the arbitrator certified it as the representative
of Respondent’s employees, is unlawful and violative of Sec-
tion 8(a)(1) and (2) of the Act. Windsor Castle Health Care
Facilities, 310 NLRB 579, 590 (1993), enfd. 13 F.3d 619 (2d
Cir. 1994); Famous Castings, supra; SMI of Worcester, Inc.,
271 NLRB 1508, 1520–1523 (1994).
I also conclude that since the contract that the parties exe-
cuted contained a union-security clause, that by this conduct,
Respondent violated Section 8(a)(1), (2), and (3) of the Act.
C. The Termination of Albanese, Melendez, Aprile, Smith,
and Winkler
In assessing the legality of Respondent’s conduct in termi-
nating the five discriminatees, it must first be determined
whether the General Counsel has established that a motivating
factor in Respondent’s decision was the union or protected
activity of the employees. Wright Line, 251 NLRB 1083
(1980). Once the General Counsel has met that burden of
proof, the burden shifts to Respondent to prove by a preponder-
ance of the evidence, that it would have taken the same action
absent the employees’ protected conduct. Wright Line, supra;
23 Although Local 713 obtained 34 cards, 1 of them was signed by
Frisina, admittedly, a supervisor. Thus, his card cannot be counted.
MEYERS TRANSPORT OF NEW YORK 971
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
Here, I conclude that the General Counsel has met its initial
burden of proving that protected conduct was a motivating
factor in Respondent’s decision to terminate five employees.
Initially, I rely on the timing of the terminations of these em-
ployees. They occurred on the next working day after the un-
ion meeting, and within 2 weeks after the union organizing
began at Respondent for Local 707. I conclude that this “aston-
ishing timing,” Fiber Products, 314 NLRB 1169, 1186 (1994),
which can also be aptly characterized as “stunningly obvious,”
NLRB v. Long Island Airport Limousine Service, 468 F.2d 292,
295 (2d Cir. 1972), provides substantial evidence of antiunion
motivation. Trader Horn of New Jersey, Inc., 316 NLRB 194,
198 (1995); Knoxville Distribution Co., 298 NLRB 688, 696
(1990). Indeed, “timing alone may suggest antiunion animus as
a motivating factor in an employer’s action.” Cell Agricultural
Mfg. Co., 311 NLRB 1228, 1232 (1993); Trader Horn, supra;
NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984);
Sawyer of Napa, 300 NLRB 131, 150 (1990).
Additionally, there is no question that all five were union ad-
herents, inasmuch as all five attended the union meeting, dis-
cussed the union and the meeting with other employees prior
thereto, three of them signed cards for the Local 707 before the
meeting, and one (Aprile) signed a card at the meeting.
Moreover, Respondent’s action in unlawfully assisting Local
713, by having its supervisor and agent solicit cards from em-
ployees, accompanied by unlawful threats of job loss and prom-
ises of benefits, and thereafter recognizing Local on the basis of
these tainted cards, evinces strong evidence of animus towards
employees’ rights to select the union of its own choosing, Local
707.
That leaves the issue of knowledge of protected conduct,
which Respondent argues forcefully, that the General Counsel
had not established, an omission, which is fatal to its case.
Beaver Valley Canning Co. v. NLRB, 332 F.2d 429, 433 (8th
Cir. 1964); Eastman Kodak Co., 194 NLRB 220 (1971). How-
ever, while Respondent is correct that it is essential for the
General Counsel to establish knowledge of protected conduct, it
is well settled that direct evidence of employer knowledge is
not required, but it may be proven by circumstantial evidence
from which a reasonable inference may be drawn. Matthews
Industries, 312 NLRB 75, 76 (1993); Abbey’s Transportation
Services, 284 NLRB 698, 700 (1987); Dr. Frederick
Davidowitz, 277 NLRB 1046, 1049 (1985); and BMD Sports-
wear Co., 283 NLRB 142, 143 (1987). Examples of the type of
circumstantial evidence which can be relied on to establish
knowledge of protected conduct, include timing of the termina-
tion in relation to the employees protected activities, the em-
ployees demonstrated animus, and the pretextual reasons for
terminations asserted by the employer. Abbey’s Transporta-
tion, supra; BMD, supra; Davis Supermarkets v. NLRB, 2 F.3d
1162, 1168 (D.C. Cir. 1993).
Here, I conclude that all of the above factors are present, as
well as other circumstantial evidence, which tends to persuade
me that a reasonable inference can be drawn, that Respondent
was aware of the protected conduct of the discriminatees prior
to Respondent’s decision to terminate them.
In that regard, Respondent argues that although the termina-
tions (characterized by Respondent as a layoff) took place on
May 15 (four employees) and 16 (one employee, Aprile, whose
day off was on May 15), that it had decided to lay them off on
Friday, May 12, which was prior to the date of the meeting.
Therefore, it contends that the General Counsel’s reliance on
the meeting of May 13 to establish knowledge is misplaced,
and that the meeting cannot be relied on to establish that Re-
spondent was aware of the employees interest in Local 707. I
do not agree. Initially, I note the evidence is far from clear that
Respondent had made a final decision as to which employees
would be laid off on May 12. Indeed, while Melendez noticed
the word “off” next to his name for Monday, May 15, on Fri-
day, May 12, he was told by Vinny that Vinny did not know
why Melendez was off, and suggested that he speak to Frisina.
Albanese was told by Vinny on Friday, May 12, to call on
Monday to see if there was work, because work was slow.
Smith, at around 3 p.m., was told by Vinny that he had to work
on Saturday, May 13, the day of the union meeting. Only after
Smith refused to work on Saturday, was Smith informed by
Massa to hand in his radio, “since he wouldn’t work on Satur-
day.” Later on in the day, Smith spoke to Vinny, who told him
that it was “slow,” and instructed Smith to call Frisina on Mon-
day to see what was going on.
Similarly, Winkler was also asked to work overtime on Sat-
urday, and he refused to do so. Winkler was not told about his
layoff until Sunday (after the meeting), when he called as he
normally does, and was also told by Vinny that work was slow
and to call on Monday.
Aprile, whose regular day off was Monday, May 15, was not
told anything about being laid off until Monday, when he called
as per normal to find out his assignment for Tuesday, May 16,
and was told by Frisina that he was not scheduled because
things were “slow.”
The above evidence strongly indicates that no final decision
had been made by Respondent to lay off any of the discrimina-
tees until Sunday or Monday, after the union meeting. Indeed,
even though Vinny did tell Melendez, Albanese, and Smith that
they were “off” on Monday, he told them both to call Frisina on
Monday to see if there was work available. Thus, these com-
ments were equivocal, suggesting that there still might be work
for them on Monday. In fact, Albanese reported for work on
Monday and was given an assignment that morning, before
being told in the midst of that route that he was laid off. Fur-
ther, Respondent’s own payroll records, while reflecting that by
the week ending of May 19, Smith, Melendez, and Winkler
were listed as “terminated,” both Aprile and Albanese had no
such listing next to their names apparently due to Albanese
working on one job on May 15, and to the fact that Aprile’s day
off is Monday, May 15.
I find it highly suspicious that both Winkler and Smith were
asked to work overtime on Saturday, May 13. Only after they
refused Respondent’s request to work on the day of the sched-
uled union meeting, were they informed of their layoff. Par-
ticularly, in the absence of any explanation from Respondent as
to why it would ask two employees to work overtime on Satur-
day, May 13, while laying them off, allegedly for lack on work
on Monday, May 15, it is reasonable to conclude which I do,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
that Respondent was testing these employees to see if they
intended to go to the union meeting. Obviously, if they agreed
to work on Saturday, they would not be able to attend the union
meeting. Once they refused, then Respondent in my judgment
had confirmation that they intended to attend the Local 707
meeting.
This conduct further confirms my conclusion that Respon-
dent became aware of the organizing activity of the employees,
as well as the fact that a meeting was scheduled for Saturday,
May 13. I also find that Respondent became aware of which
employees attended the meeting, and terminated five of the
seven employees who attended the meeting.
Even if I were to find that Respondent had made a final deci-
sion to lay off the employees on Friday, May 12 (before the
meeting), the circumstantial evidence still supports the conclu-
sion that Respondent became aware of the organizing and the
union meeting, as well as which employees were expected to
attend, prior to Friday, May 12. The circumstantial evidence
supporting this conclusion, in addition to the close proximity
between the decision to layoff and the organizing and the dis-
cussions among employees about the meeting, also includes the
unlawful assistance to Local 713 on Tuesday, May 16, the day
after the terminations began. I find this coincidence too suspi-
cious to ignore, and clearly contradictory to Frisina’s testimony
that Respondent knew nothing about Local 707’s organizing
until the Local 707 petition was received, sometime after May
17. There is no logical explanation for Respondent’s sudden
decision to have Massa, (a close acquaintance of Meyers), its
supervisor and agent, call in Local 713, and as I have found,
coerce its employees to sign cards for this Union, other than the
fact that Respondent was aware of Local 707’s organizational
activities, and sought to sign up with a union with whom it
would prefer to deal. I note in this connection that Massa had
previously been a member of Local 713, and likely informed
Meyers that Respondent would be better off signing a contract
with Local 713 (an unaffiliated Union), rather than be faced
with the possibilities of having to recognize Local 707, affili-
ated with the Teamsters. It also follows that Respondent would
be desirous of ridding itself of Local 707 adherents before it
engaged in its unlawful assistance. Indeed, if the Local 707
supporters were still employed, while Respondent was calling
employees one by one into Massa’s office and coercing them to
sign cards for Local 713, it is likely that they would have at-
tempted to interfere with this blatant assistance to Local 713 by
perhaps so informing their fellow employees, or notifying Lo-
cal 707. But, if these Local 707 adherents were terminated, the
unlawful recognition of Local 713 would be likely to go
smoothly as it did without their presence. Therefore, I con-
clude that the unlawful assistance to and recognition of Local
713 on May 16 and 18, 1 to 2 days after the terminations, pro-
vides compelling circumstantial evidence that Respondent
knew or at least suspected that the five discriminatees were
supporters and had attended or intended to attend the May 13
Local 707 meeting.
Further, circumstantial evidence supporting this conclusion
is provided by the fact that Respondent laid off a disproportion-
ate number of supporters of Local 707. The Board, supported
by the courts, has long held that where, as here, a layoff or
termination includes a disproportionate numbers of union ad-
herents, this constitutes persuasive evidence of discrimination.
Huck Store Fixture Co., 334 NLRB 119 (2001); Glenn’s Truck-
ing, 332 NLRB 880 (2000); American Wise Products, 313
NLRB 989, 994 (1994); Power, Inc. v. NLRB, 40 F.3d 409, 418
(D.C. Cir. 1994); Hedison Mfg. Co., 249 NLRB 791, 804
(1980); Camco, Inc., 140 NLRB 361, 365, enfd. in part 349
F.2d 803, 810 (5th Cir. 1965); NLRB v. Nabors, 196 F.2d 272,
375–376 (5th Cir. 1982); and NLRB v. Chicago Steel Foundry,
142 F.2d 306, 308 (7th Cir. 1944).
As part of creating the inference of discrimination, it has
been held that knowledge of union activity can be inferred from
the disproportionate number of union adherents. Davis Super-
markets v. NLRB, 2 F.3d 1162, 1168 (D.C. Cir. 1993) (eight
employees discharged, six of whom were union supporters);
NLRB v. Camco, supra (employer discharged 11 of 16 union
adherents).
The Board in Camco, supra, dealt with the argument made
by Respondent here that the large percentage of union adher-
ents selected was a coincidence. There, the employer selected
only those 11 employees who attended a union meeting. The
Board held, “While it may be theoretically possible that the
Respondent may have fortuitously selected for termination only
those employees active in the Union, common sense and the
laws of mathematical probability indicate that such fortuity was
highly improbable.”
As the D.C. Circuit phrased the issue in Chicago Steel, su-
pra, “To be sure, percentage evidence; standing alone will not
support or sustain an order based on Section 8(3) of the Act.
. . . But the disproportionate treatment of union or nonunion
workers may be very persuasive evidence of discrimination . . .
and may create an inference of discrimination leaving it to the
employer to give an adequate explanation of the discharge or
layoff.” Id. at 308.
The principles applied in the above cases are present in the
instant case. Respondent terminated or laid off five employees,
all of whom attended the union meeting on May 13, while not
terminating two employees who attended the meeting. These
employees included the two main organizers for Local 707,
three of whom signed cards before the meeting. A fourth em-
ployee signed a card at the meeting. Respondent also termi-
nated or laid off24 3 or 4 other employees out of a bargaining
unit of 60 employees. Thus, I conclude that the selection of the
great proportion of union adherents for termination was not
mere coincidence, but persuasive evidence that the probability
is very high that the layoffs were discriminatorily motivated.
Hedison, supra (21 employees laid off, 19 signed cards, and 8
attended union meeting); Holding Co., 231 NLRB 383, 390
(1977) (40 percent of the employees who attended the union
meeting were discharged); Camco, supra (16 employees at-
tended a union meeting, and 11 were terminated, out of a unit
of 95 employees); NLRB v. Nabors, supra (23 of 26 discharged
were union men, 13 of 23 attended the union meeting; 60 em-

24 I have used the term laid off or terminated interchangeably in this
decision with regard to Respondent’s conduct, because as discussed
below the record is unclear whether the employees were terminated or
laid off.
MEYERS TRANSPORT OF NEW YORK 973
ployees were retained who had less seniority than those dis-
charged); Davis Supermarkets, supra (eight employees laid off,
six of whom were union supporters); Huck Store, supra, (re-
spondent laid off 27 employees who had not signed antiunion
petition (21 out of 79) but only 6 percent of employees who had
signed petition (5 out of 81), 5 of 11 employees discharged on
March 4 signed cards for union, and 10 of 12 laid off on March
11 had signed cards).
Somewhat related to this issue is the status of employee John
Ponce. Ponce was not invited to attend the union meeting by
Smith because Smith did not trust him. Nonetheless, Ponce
showed up at the meeting, and after asking Smith to identify
who else was at the meeting, and receiving this information,
left the meeting after a few minutes and did not return. Not
surprisingly, Ponce was not among those laid off, although he
was at the meeting. The above facts create a strong suspicion
that Ponce was the source of Respondent’s information as to
who attended the May 13 meeting.25 Mathews Transportation,
supra, 296 NLRB at 432 (Board infers knowledge in part from
finding that “informer” disclosed union activities of employees
to employer); Grey’s Colonial Boarding Home, 287 NLRB
877, 882 (1987) (employee who refused to sign an authoriza-
tion card for union, “might well have been the source” of em-
ployer’s knowledge).
As I have detailed above, another significant indication of
employers knowledge is the pretextual nature of the employer’s
decision to terminate or layoff the employees. It is to that issue
that I now turn. In that regard, I agree with the General Coun-
sel and the Charging Party that the evidence discloses that the
grounds asserted by Respondent for its decision to terminate the
employees is pretextual, both as to the necessity for the alleged
layoff itself as well as the selection of the employees for termi-
nation. The first problem with Respondent’s defense, and it is a
huge one, is its failure to call Mike Meyers as a witness.
Meyers was as Frisina testified, the official of Respondent who
made the decision that layoffs were necessary, because post
office work was declining as a result of the end of the proxy
season. Moreover, it was Meyers who allegedly received in-
formation from the post office representative as to the decline
of post office work. Meyers also according to Frisina, collabo-
rated with Frisina on the decision as to which employees to
layoff, including among other things the decision not to con-
sider seniority in Respondent’s decision.
I find that the failure to call Meyers as a witness in these cir-
cumstances is particularly damaging to Respondent’s case, and
gives rise to an adverse inference, which I find appropriate to
draw, that his testimony if offered would not have been favor-
able to Respondent’s case. National Assn. of Government Em-
ployees (IBPO), 327 NLRB 676, 699 (1999); United Parcel
Service, 321 NLRB 300 fn. 1, 308–309 fn. 21 (1996); Ready
Mix Concrete, 317 NLRB 1140, 1143 fn. 16 (1995); Basin

25 As noted above, I have also found that Respondent by virtue of
Smith and Winkler having turned down overtime work for the day of
the meeting, had reason to believe that they intended to attend the meet-
ing.
Frozen Foods, 307 NLRB 1406, 1417 (1992); White Plains
Lincoln Mercury, 288 NLRB 1133, 1150 fn. 13 (1988).26
Additionally, an examination of the testimony of Frisina,
who was Respondent’s only witness with respect to the issue of
its decision to layoff was vague, unconvincing, and filled with
significant contradictions and inconsistencies. Thus, Frisina
testified that work was “slow,” allegedly because of the reduc-
tion of postal service work due to the end of the proxy season.
However, he provided no further details as to how much work
was lost, how many trucks were needed or reduced, or how
much overtime Respondent needed to complete its work during
the period of the layoff. More importantly, it introduced no
records or any other probative documentary evidence to estab-
lish the loss of work that allegedly necessitated a sudden layoff
of its work force. The failure of an employer to produce rele-
vant evidence particularly within its control allows an adverse
inference that such evidence would not be favorable to it.
NLRB v. Shelby Memorial Hospital, 1 F.3d 550, 563 (7th Cir.
1993). I find such an inference appropriate here.
The only documentary evidence introduced by Respondent
in support of its case, was the letter, allegedly from Simpson of
the post office to Meyers, dated May 12. While on its face this
document appears to be supportive of Respondent’s position, I
find the document to be of no probative value in the circum-
stances herein. The facts are clear that Respondent did not
have this letter in its possession at the time of its decision to
layoff employees, and in fact it was not received until June 14,
a month after the layoffs began. There can be little question
that this document, even if authentic,27 was nothing more than
an attempt by Respondent to justify its decision during the in-
vestigation of the charges, and that Simpson simply wrote what
Meyers asked him to write. The failure of Respondent to call
Meyers as a witness is also critical in evaluating this document,
since he was the one it was allegedly addressed to, and who
according to Frisina, had discussed its contents with Simpson
prior to the layoffs. However, the failure of Meyers to testify to
these facts and to corroborate Frisina’s hearsay testimony is
again significant, and once more permits an adverse inference
that his testimony would be unfavorable to Respondent on this
issue.
Frisina’s testimony with respect to this document is particu-
larly revealing and damaging to his credibility as a whole.
Thus, on direct testimony, Frisina testified that as a result of
Respondent’s receipt of the letter, which was dated May 12, he
and Meyers decided on May 12 that Respondent needed to
layoff some employees on Monday, May 15. Interestingly,
Frisina slipped a bit in his testimony, by candidly admitting that
work “slowed down a little but.”
26 Indeed, it is also appropriate to conclude that Meyer’s testimony
as to knowledge of the discriminatees’ union activity would be contrary
to Respondent’s position, as expressed by Frisina, that it had no such
knowledge.
27 I note that since neither Meyers nor Simpson testified, the docu-
ment was not properly identified. It was received in evidence, without
objection, as a document kept in the ordinary course of business. How-
ever, in my view it does not fall within the business records exception
to the hearsay rule, since it is not part of the regular course of business
for Respondent to receive such a letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
On cross-examination, Frisina changed his testimony as to
the letter, by admitting that he only “assumed” that Meyers
received it on May 12. When it was pointed out the fact on the
letter indicated it was not received by Respondent until June 14,
he also pointed out that he was sure that a copy was faxed over
at the time, but then conceded that he did not know about the
letter until several days later. Finally, Frisina testified that the
decision to lay off was made on May 10, 2 days before the date
of the letter. Thus, his disingenuous and inconsistent testimony
as to this letter reflects poorly on his credibility, as well as
damaging any reliance that can be placed on the document.
Further, and most importantly, Frisina admitted that the
proxy season ended in March. While he tried later on to change
that testimony in response to a clearly leading question by Re-
spondent’s attorney, I credit his earlier version and find that the
proxy season ended in March. This admission thoroughly de-
stroys Respondent’s defense that the end of the proxy season,
and the resultant loss of post office business, motivated the
layoffs. Thus, the proxy season ended in March, but Respon-
dent did not lay anyone off at that time, but instead hired nine
employees in March, eight in April, and one on May 1. Thus, it
does not appear that the end of the proxy season caused a sig-
nificant loss of work, since Respondent continued to hire em-
ployees thereafter, and Respondent has introduced no probative
evidence that a significant slowdown in work occurred on May
15 or at any time before that. Cell Agricultural Mfg. Co., 311
NLRB 1228, 1233 (1993).
The credibility of Respondent’s defense is further diminished
by several other factors, all of which in one way or the other,
place into question Respondent’s assertion, that Respondent’s
financial condition as of May 15 required it to lay off 15 per-
cent of its work force. These factors, include the fact that, Re-
spondent was regularly assigning significant amounts of over-
time28 to employees during the weeks immediately prior to the
layoff, including asking two discriminatees to work overtime
on Saturday, May 13, 1 day before the layoff. Leather Center,
Inc., 308 NLRB 16, 30 (1992); United Hydraulic Services, 271
NLRB 107 (1984). Also, Respondent continued to place adver-
tisements for employees in the newspaper, even while laying
off employees allegedly for lack of work. White Plains Lincoln
Mercury, supra, 288 NLRB at 1152. Further, while there is no
evidence that Respondent ever laid off any employees before,
the undenied and credited testimony of Melendez establishes
that during Christmas 1999 work was slow because one of Re-
spondent’s customers closed down for the week. At that time,
Respondent rather than laying off any employees, asked em-
ployees to “voluntarily” take same time off. The failure of
Respondent to use this voluntarily procedure, as it did in the
past when it had a temporary reduction of work, further dam-
ages Respondent’s defense. Cooke’s Crating, Inc., 289 NLRB
1100 (1988).29

28 Thus, several discriminatees were working 55–60 hours a week,
the weeks before the layoff.
29 Once again the failure of Respondent call Meyers is significant in
this area. Frisina was employed by Respondent since May 1999. Not
only did he not deny Melendez’ testimony in this regard, but Meyers
did not testify to either deny such testimony or to testify about its prac-
tice in prior years. Indeed, since Respondent has been operating since
Thus, I conclude that all of these factors, plus Respondent’s
conduct in hiring employees in the period shortly prior to the
layoff and after the alleged reduction in post office business, all
demonstrate that there was no substantial business reduction on
May 15 that motivated Respondent’s decision to lay off nine
employees. Indeed, Frisina’s candid admission that business
was reduced “a little bit,” further enhances that conclusion. I
believe that there may have been a slight reduction of work, as
a result of the proxy season ending, but that reduction which
occurred in March, did not motivate Respondent to lay off nine
employees on May 15. Rather, the evidence establishes that
Respondent was motivated by the appearance of Local 707
organizing its employees, and Respondent’s desire to avoid
having to recognize that union.30
Turning to the alleged reasons that Respondent selected the
five discriminatees for layoff, Frisina’s testimony on this issue,
was again vague, contradictory, and unconvincing. Thus, he
testified initially that he included Albanese, Melendez, Smith,
and Aprile because of alleged problems with Southern Con-
tainer, one of Respondent’s main accounts. While Albanese
did admit that he had a problem with this account and had in
fact requested not be sent there, no such evidence was adduced
with respect to the other employees. In that regard, Frisina
testified that he received complaints about these employees
from various unnamed officials of Southern Container who
allegedly did not want them sent back there. However, Re-
spondent never documented any of these complaints, and never
warned any of the employees about these alleged complaints.
He also did not testify as to when he received the complaints or
precisely who spoke to him about these problems. Frisina’s
testimony, as to Aprile, is completely contradicted, since Aprile
continued to serve Southern Container exclusively until his
layoff. Frisina provided no explanation as to why, if Southern
Container had requested that Aprile not be sent back there, he
continued to assign him to that account.31
Initially, Frisina testified that he selected Winkler for layoff
because he had two accidents and because he blew out two
engines of his truck. However, later on his testimony, Frisina
changed that testimony, and included Winkler as well as the
other employees, in the group of employees who had com-
plaints from Southern Container about their conduct.
Although, Winkler admitted that he did have two accidents
in 2000, both accidents were not his fault, and the record re-
flects that Respondent did not contend otherwise. Nor did the
record reflect that there was significant damage to Respon-
dent’s trucks as a result of the accidents. Moreover, Respon-
dent did not issue Winkler any written or oral warnings for

1994, it may have had prior voluntary layoffs, or even other prior lay-
offs, where it may have utilized seniority to select employees. It is
once more appropriate to draw an adverse inference that Meyer’s testi-
mony would be adverse to Respondent in these areas.
30 Once again, I emphasize the close proximity in time between the
organizing of the employees, the union meeting on May 13, the layoff
of May 15, and the unlawful assistance to Local 713 on May 16–18.
31 It is also notable that Scatigno, who did not attend the union meet-
ing, was not selected for layoff, although he admitted that he had a
problem at Southern Container and had specifically requested not to be
sent to work there.
MEYERS TRANSPORT OF NEW YORK 975
either of these accidents. As for the blown engines, Winkler’s
unrefuted testimony establishes that the engines were blown as
a result of Massa’s decision to order Winkler to continue to
finish his route, although Winkler warned Massa that the truck
was overheating. Further, Respondent placed a termination
document in Winkler’s file, dated May 12, reflecting that he
was terminated because of “accidents.” This document makes
no mention of the blown engines nor the alleged complaints
about Winkler from Southern Container, as reasons for
Winkler’s termination, and in fact, is also inconsistent with
Frisina’s testimony that Winkler was laid off because work was
slow.
This brings me to an evaluation of whether, in fact, Respon-
dent laid off or discharged the five discriminatees. While Fris-
ina testified that Respondent laid off these employees as well as
four other employees, because work was “slow,” I find this
testimony to be of dubious reliability, in view of the evidence
in the record. In addition to the termination document for
Winkler described above, I note that Respondent’s own payroll
records designate these employees as “terminated.” While this
designation in the records could have a benign interpretation,
no explanation was offered by Respondent in this regard. Also,
when Albanese returned to Respondent’s facility to turn in his
keys and radio as instructed, he spoke to Frisina. Frisina at that
time, told Albanese, “[Y]ou’re done. There’s nothing for you.”
This remark by Frisina, although somewhat equivocal, does not
suggest a temporary layoff. Indeed, the statement, “You’re
done,” sounds much more like a discharge and that Respondent
had no intention, at that time, of recalling him.
Respondent’s subsequent conduct with respect to the dis-
criminatees, as compared to the other four employees allegedly
“laid off” at that time, serves to reinforce my conclusion. True,
Respondent did in fact reinstate or offered to reinstate all of the
five discriminatees sometime in June. However, since these
offers were made only after the instant charges were filed, it is
reasonable to conclude which I do, that this action was merely
an attempt to cut off its backpay liability, rather than evidence
that its initial action was contemplated to be only a layoff.
However, the other four employees, allegedly laid off at the
same time for the same lack of work, were not offered their
jobs. The only explanation provided by Frisina for not doing
so, is his testimony with respect to Jennings, “because his was a
blatant order for dismissal at that point.” This testimony makes
clear that Jennings was discharged at that time, and suggests
that all the employees were discharged as well. Frisina also
testified that Bryson another employee allegedly laid off had
“wrecked a trailer,” much more serious misconduct that Re-
spondent alleged to have been committed by the discriminatees.
The other two employees allegedly laid off, according to Fris-
ina, had unspecified “performance” problems. Interestingly,
with respect to reasons for the selection of the ninth unnamed
employee, Frisina testified, “[P]erformance or it could have
been a recent hire.” This admission constitutes a significant
variation from Frisina’s earlier insistence that Respondent did
not consider seniority in its selection of employees. This repre-
sents but another of the numerous inconsistencies in the testi-
mony of Frisina, which further detracts from his credibility, as
well as the validity of Respondent’s defense.
The above detailed evidence persuades me that Respondent,
contrary to Frisina’s testimony, intended to discharge all nine
of the employees in mid-May. I also find that it did so not be-
cause of any slowdown in work, but because of the advent of
Local 707’s organizing campaign, and Respondent’s preference
for dealing with Local 713. Indeed, this is the only reasonable
explanation for the choice of mid May for its decision to termi-
nate employees, for an alleged slowdown in work that began in
March. I find that work did slowdown as Frisina testified, “a
little bit,” and Respondent seized on that opportunity to rid
itself of five union adherents, and to include four other employ-
ees with whom it was dissatisfied at the time.
I would add, that even if I were to find that as Frisina testi-
fied Respondent intended to lay off the five discriminatees, its
failure to recall the other four nondiscriminatees, further de-
tracts from the validity of its defense. Thus, in that case, since
it did not reinstate the four nondiscriminatees, one can only
conclude that these four employees were discharged, which is
confirmed by Frisina’s own testimony that Jennings was dis-
missed and Bryson had “wrecked a trailer.” Therefore, in that
scenario, Respondent laid off only five employees, all of whom
attended the union meeting and were union adherents, and laid
off no one else. This makes the proportion of union adherents
laid off even more suspicious. Since Respondent recalled the
discriminatees within 1-1/2 months, I would then find that Re-
spondent intended only to temporarily remove the discrimina-
tees from its work force during Respondent’s unlawful assis-
tance to Local 713, so as to facilitate its unlawful recognition of
Local 713 and the consequent elimination of any possible obli-
gation to recognize Local 707, a union with whom Respondent
did not wish to deal.
Accordingly, based on the above analysis and authorities, I
conclude that Respondent’s explanations for its decisions to lay
off or terminate its employees is pretextual both as to its rea-
sons for the layoff itself, as well as the selection of employees
for layoff.32 Therefore, since I have so concluded, I also find
compelling circumstantial evidence that Respondent knew or
suspected that the five discriminatees were union adherents
when they were terminated on May 15. In sum, this circum-
stantial evidence includes the close proximity in timing be-
tween the terminations and the union organizing, union meet-
ing, and significantly Respondent’s unlawful assistance. This
evidence, coupled with the high proportion of union supporters
terminated, the pretextual nature of the terminations, and the
possibility of an informer, are collectively sufficient to per-
suade me that Respondent was aware of the discriminates’ un-
ion support when it decided to terminate them.
Having made that conclusion, it follows that the General
Counsel has presented a compelling case that Respondent’s
decision to terminate the employees was motivated by their

32 I have considered Respondent’s citation of Eastman Kodak, supra,
in support of its position, but find that case to be clearly distinguish-
able. Thus, while the Board therein did reverse an ALJ’s decision to
find knowledge of union activity, based on attendance at a union meet-
ing, in that case, unlike here, it was undisputed that the layoff itself was
lawful, and only the selection was in question. Here, as I have detailed
above, I conclude that Respondent has not established that the layoff
was motivated by economic reasons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976
activities on behalf of and support for Local 707. Wright Line,
supra.
Since I have already concluded that Respondent’s purported
defenses are pretextual, it also follows that Respondent has not
met its burden of establishing that it would have taken the same
action, absent the employees’ protected conduct. Therefore,
Respondent has violated Section 8(a)(1) and (3) of the Act. I so
find.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 707 and Local 713 are labor organizations within
the meaning of Section 2(5) of the Act.
3. By soliciting, instructing and ordering its employees to
sign authorization cards on behalf of Local 713, threatening its
employees with discharge if they did not sign authorization
cards for Local 713, and promising its employees wage in-
creases, medical benefits, and other improvements in their
terms and conditions of employment, in order to induce the
employees to sign authorization cards for Local 713, Respon-
dent has violated Section 8(a)(1) and (2) of the Act.
4. By recognizing Local 713 as the collective-bargaining
representative of its employees, on May 18, 2000, and subse-
quently executing a collective-bargaining agreement with Local
713, which agreement contained a union-security clause, not-
withstanding the fact that Local 713 did not represent an unco-
erced majority of Respondent’s employees, Respondent had
violated Section 8(a)(1), (2), and (3) of the Act.
5. By discharging or laying off its employees, Dwight
Melendez, Anthony Smith, Raymond Albanese, Thomas
Winkler, and Robert Aprile, because of their activities on be-
half of and support for Local 707, Respondent has violated
Section 8(a)(1) and (3) of the Act.
6. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act.
Since Respondent had reinstated or offered to reinstate all of
the discriminatees, the General Counsel does not seek, and I
shall not recommend any reinstatement remedies. However, I
shall recommend that Respondent make whole the five dis-
criminatees for any loss of earnings and other benefits that they
may have suffered by reason of Respondent’s discrimination
against them. All backpay provided shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
It is also appropriate to recommend that Respondent cease
and desist from recognizing or signing a contract with Local
713, unless and until Local 713 is certified as the collective-
bargaining representative of its employees in an NLRB elec-
tion. Since the General Counsel concedes that Respondent has
not deducted any dues, pursuant to its unlawful union-security
clause in its collective-bargaining agreement with Local 713, it
is not necessary to order the standard remedy of dues reim-
bursement.
[Recommended Order omitted from publication.]