Music Express East Inc.

National Labor Relations Board - Administrative Judge Opinions

May 14, 2003

22-CA-025174 (N.L.R.B. May. 14, 2003)

JD(NY)-22-03
Elmwood Park, NJ

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK BRANCH OFFICE
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

MUSIC EXPRESS EAST INC.

and Case No. 22-CA-25174

INTERNATIONAL BROTHERHOOD OF
TEAMSTERS LOCAL 805, AFL-CIO

Jeffrey Gardner, Esq. & Brian Caulfield, Esq.
Newark, NJ
for the General Counsel.
Don T. Carmody, Esq.
Woodstock, NY
for the Respondent.
David Tykylsker, Esq.
Montclair, NJ
for the Charging Party.

DECISION

Statement of the Case

STEVEN FISH, Administrative Law Judge. Pursuant to charges and amended
charges filed by Local 805 International Brotherhood of Teamsters, herein called the Charging
Party or the Union, the Director for Region 22 issued a Complaint and Notice of Hearing on
June 28, 2002,1 alleging that Music Express East Inc., herein called Respondent, violated
Sections 8(a)(1), (2) and (3) of the Act.

The trial with respect to the allegations in the above complaint was held before me in
Newark, New Jersey on September 3, 4, 5 and 24. Briefs have been filed by Respondent and
General Counsel and have been carefully considered. 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 is a corporation with an office and place of business in Elmwood Park, New
Jersey, where it is engaged in the business of providing transportation, namely limousine and
car services. During the preceding twelve months, Respondent derived gross revenues in
excess of $500,000 and purchased and caused to be delivered to its Elmwood Park facility,
goods valued in excess of $5,000 directly from points outside the State of New Jersey.
1 All dates hereinafter are in 2002, unless otherwise indicated.

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Respondent admits, and I so find that it is an employer engaged in commerce within the
meaning of Section 2(2) , (6) and (7) of the Act.

It is admitted, and I so find that the Union is a labor organization within the meaning of
Section 2(5) of the Act.

II. FACTS

A. RESPONDENT’S OPERATIONS

Respondent is a limousine company specializing in providing transportation to music and
entertainment industry artists and executives. Respondent’s CEO is Cheryl Berkman, who is
based in Los Angeles, California, where Music Express West is located, a separate corporation
from Respondent, but engaged in the same business, but on the West Coast. Berkman is the
CEO of that corporation as well.

Richard Badalamenti is the Vice President and General Manager of Respondent, and is
stationed at its Elmwood Park facility.

Isaac Williams is employed by Respondent as a driver-trainer, and Respondent admits
that he and Badalamenti have been supervisors of Respondent within the meaning of Section
2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act.

Barbarba Chizmadia is employed as Respondent’s Director of Operations.

Respondent also employs several dispatchers, including Lee Wong and Sergio
Segallini.2 Although the record establishes that the dispatchers distribute work to the drivers,
and at times issue instructions and orders to them, the complaint does not allege that the Wong
or Segallini or the dispatchers employed by Respondent are supervisors or agents of
Respondent.

Respondent employs approximately 130 drivers, who are paid an hourly salary plus
gratuity.

B. THE UNION’S ORGANIZATIONAL CAMPAIGN

Following the events of September 11, 2001, Respondent experienced a significant loss
of business. As a result Respondent instituted several changes which angered its drivers,
including the reduction of paid preparation time from two hours to one and a wage freeze. In
December of 2001, Bruce Richter, who was one of the more outspoken drivers, on a visit to Los
Angeles, spoke with Berkman about these and other problems that the drivers had, including
the fact that Respondent continued to hire new drivers, which cut into the work opportunities of
existing drivers. Berkman could not give Richter much time in December of 2001, but promised
to meet with him in February of 2002, when she planned to be at the New Jersey facility.

Berkman met with Richter in February of 2002. He informed her that morale of the
drivers was very low, because of the problems described above. Berkman replied that she
could not change Respondent’s position on raises or the lost hour, but on hiring she promised
that if current drivers agreed to work on weekends, she would cease additional hiring. The day
2 Segallini is the dispatcher manager.

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after this meeting, Badalamenti posted a memo stating that effective immediately, hiring would
be stopped, as long as drivers made themselves available on weekends.

However, although Respondent stopped hiring for a few weeks, it resumed hiring
although drivers were coming in on weekends. As a result Richter and fellow employee Tom
Hagen contacted the Union and met with Union representatives Matt Ginsberg and Sandy Pope
in mid March. After the Union representatives explained the union benefits and the procedure
for obtaining Union representation, Richter and Hagen thereafter spoke to several other
employees and began forming an organizing committee. Additional meetings were held by the
Union on April 7 and April 13. At the April 13 meeting, 14 drivers attended, and authorization
cards were distributed and signed by some employees at that meeting. Cards were also given
out to drivers to distribute to other employees.

C. RESPONDENT’S REACTION TO THE UNION CAMPAIGN

On April 14, the day after the April 13 union meeting, dispatcher Wong asked employee
Donald Bricker,” how did the Union meeting go”? Bricker did not respond. Bricker also heard
dispatcher Segallini speak to a driver, when Bricker was next in line at the dispatch window.
Segallini said to the driver, “remember Jimmy Hoffa.” When the driver asked for a newer
vehicle, Segallini responded,” well, if you don’t like it, take it up with your union rep.”

A few days after the April 13 meeting, Don Bricker was approached by Williams at work.
Williams asked Bricker if “he was down with the Union”? Bricker replied that he didn’t want to
say anything about it.

On April 17, Respondent posted and distributed notices, announcing a paid mandatory
meeting for employees on April 18. There were morning and afternoon sessions of this
meeting, both of which were run by Badalamenti. Badalamenti began the meetings by asking if
anyone was recording the meeting. After no one responded, Badalamenti stated that “outside
sources would be catastrophic to the company and its employees.” Badalamenti then invited
the drivers to air any complaints that they may have with their work. The drivers raised several
issues, such as the loss of one hour of prep time, wage freeze, pay for waiting time, the way
they were treated by dispatchers, and the hiring of new drivers.

Badalamenti indicated that Respondent was considering giving back the one hour prep
time, and he would discuss it with Berkman, and inform the employees of Respondent at a
subsequent meeting. He told the employees that pay raises are still frozen. With respect to the
other complaints raised by the drivers, Badalamenti indicated that they would be considered,
and he would respond to the employees at the next meeting. Badalamenti concluded the
meeting by saying that Music Express “without outside representation can handle all problems.”
The Union was not specifically mentioned during this meeting.

On April 24, Badalamenti met again with the drivers. He announced that Respondent
was reinstating the extra hour of paid prep time that had existed prior to September 11, 2001,
but that as he had indicated on April 18, wages would still be frozen. However, Badalamenti
indicated that in response to drivers concerns about dispatch, that he would begin monitoring
dispatch and would take over scheduling of vacation and sick leave.

Badalamenti also stated that he didn’t understand why the employees still wanted a
union, since Respondent was following up on last weeks meeting and had some results for the
employees. He added that all unions do is take your money and dues.

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Badalamenti also told the employees that if employees were terminated for a sub par
record, no union can change that action.

Badalamenti then indicated that Respondent was proposing the formation of a drivers
committee, which would represent the drivers and act as a liaison between the drivers and
management. The committee would according to Badalamenti, approach Badalamenti with
problems that other drivers might have had to meet with him personally and “go over problems
and try to reach a reasonable conclusion”. Badalamenti informed the employees that the
committee would consist of seven members, and an election would be conducted. He said that
he would be passing out a sheet, asking for volunteers to sign up for the committee.

On April 26, Badalamenti issued a memorandum to all drivers, summarizing the results
of the meeting. The memo reads as follows:

To: All Chauffeurs
From: Richard Badalamenti
Date: April 26, 2002
Subject: Chauffeur Meeting Results

I would like to take this time to thank all the chauffeurs who attended the
meetings last Wednesday for their time and input. The following is a brief
summary of the decisions resulting from the meetings.

1. Rich will now oversee chauffeur activities. Rich will
handle all chauffeur issues and correspondence.

2. MXE is in the process of forming a Chauffeur Committee
to collect and help address chauffeur related issues
and grievances.

3. Overall communications between chauffeurs and
management will be improved via several methods.
A new correspondence board will soon be introduced
as a place where all chauffeur related memos and
policy issues can be addressed by management and
easily found by the chauffeurs.

4. The 2 hour prep time has been re-instated.

I am willing to work as hard as needed to keep the chauffeurs and the
company running at peak efficiency. I anticipate that you will also. Thank
you in advance for your patience and cooperation.

Rich Badalamenti

Also on April 26, Badalamenti posted another memo, stating that Respondent had hoped
for more candidates to sign up for the chauffeur committee. The memo requested that drivers
sign up and “make your voice and the voices of your fellow chauffeurs be heard.”

The next day, Badalamenti asked Richter if he was going to volunteer to serve on the
committee. Richter replied “no”. Badalamenti asked “why”? Richter replied that he did not
think if would be ethical to sit on the advisory committee, because he was the head of the union

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organizing committee. Badalamenti responded, “if that’s the way you feel, okay.”

Ultimately, 19 employees signed up for the election.3 Respondent posted a memo,
dated April 30, which listed the 19 names as “Chauffeur Committee Candidates List.” The
election was conducted on that date. The election took place in the drivers room, and lasted all
day. A box was placed in the room on the table. The drivers voted by choosing seven names
out of the 19 on the list, and putting their votes into the box. Subsequently the ballots were
counted by Badalamenti in the presence of the 19 candidates.

By memo dated May 2, Respondent announced the results, listed the names and
thanked everyone for their participation. The memo reads as follows:

To: All Chauffeurs
From: Richard Badalamenti
Date: May 2, 2002
Subject: Chauffeur Committee is in place.

Please be aware that the Chauffeur Committee is now formed and in place.
I would like to thank everyone who participated in the process for making it
a success. The committee will be dealing with many various issues that
concern the chauffeurs of Music Express East. Many issues have already
been addressed at the first committee meeting held today (May 2, 2002.
The issues and concerns discussed at this meeting will be made public in
the near future. The following chauffeurs will be representing you: Michael
Murray #104, Victor Duncan #101, Steve Wilson #122, Ira Berlowitz #169,
Bill Griffin #112, Fred Abu-Dail #219, and Anthony Tattoli #322. Please be
on the watch for further writings regarding the committee and the work it is
doing. Thank you for your full cooperation.

Richard Badalamenti

On the day after the election, Badalamenti called Richter into his office. He accused
Richter of being inconsiderate and hurting the company by continuing to push for the Union, and
not giving him a chance. Badalamenti added that he was trying to do the right thing by
organizing the committee, and that Richter was interfering with it by continuing to organize.
Badalamenti also pointed to the calendar and told Richter that he knew for a long time about the
organizing and pointed to May 4, and said that he knew when and where the next union meeting
would be.

In fact there was a union meeting held on May 4, at the Holiday Inn Hotel. At this
meeting, Williams drove up in a Music Express Car and attempted to enter the meeting. Some
of the employees told Ginsberg that Williams was a supervisor and that they did not think he
should be there. Ginsberg the asked Williams to step out into the hall. Ginsberg informed
Williams that he had been informed by employees that Williams was a supervisor and a driver
trainer, and it was not appropriate for Williams to be present. Williams objected at first, saying
that he had a right to be there. Ginsberg repeated that Williams was a supervisor and should
leave, but if he wanted to talk to Ginsberg, Ginsberg would leave his phone number and
Williams could call. Williams then agreed to leave the meeting. A day or two after the May 4
meeting, the Union organizing committee faxed a letter to Respondent. When Williams returned
3 Included on the list was Emad Mercho.

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to the shop the next day, he informed Badalamenti that he had been gone to the Union meeting,
because he felt that the right to be there, since he is a driver, but that the Union did not allow
him to stay.

Badalamenti replied that it was up to him, but added “I don’t see why you went.”
Williams had not informed Badalementi prior to the meeting that he intended to go. A day or
two after the May 4 meeting, the Union organizing committee faxed a letter to Respondent,
specifically naming eight members of the union organizing committee, and indicating their intent
to form a Union with Local 805 of the Teamsters. Although the letter was dated April 29, it was
not sent until on or about May 6.4

On or about May 8, Badalamenti met with Bricker and Richter to discuss the letter from
the Union organizing committee. Badalamenti asked Richter and Bricker to hold off on the
Union’s organizing, and give him three months, in order to give Respondent a chance to prove
itself, and allow the chauffeurs committee to function. Richter and Bricker agreed to the 3
month period, but asked for a statement in writing from Respondent, stating that it would not
harass any Union committee members. Badalamenti replied that he would check with Berkman
about the letter. A few days later, Badalamenti told Richter that Berkman was not opposed to
writing such a letter, but she needed to check with Respondent’s legal department. About a
week later Badalamenti advised Richter that Respondent could not provide the letter that the
employees were seeking.

Also during the May 8 meeting, Richter observed that Respondent had recently restored
the one extra hour of prep time to the employees, and he felt that was done because of the
presence of the Union. Badalamenti replied yes.

On or about May 2, the chauffeurs committee formed by Respondent met and decided to
distribute a questionnaire to the other drivers, asking them to express their concerns and issues
that they wish presented to management. The committee members told the drivers that the
committee intended to present their concerns to Berkman.

Subsequently, after the questionnaire’s were returned, the chauffeurs committee sent a
letter to Berman in California, dated June 7, 2002. The letter reads as follows:

June 7, 2002

Ms. Cheryl Berkman
Music Express West Inc.
2601 Empire Avenue
Burbank, CA 91504

Dear Cheryl,

This letter is being written to you on behalf of all the chauffeurs of Music
Express East. We are the charter committee who were elected by our
peers to represent on a continuing basis the concerns of the chauffeurs
staff. In order to have a more direct line of communications between
you, Richie and the chauffeur staff, this committee was formed.
4 This list included Richter, Acosta and Bricker.

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As you are aware, the events of September 11th has delivered a
tremendous toll on all of our lives. We have endured a period of
“belt tightening” times for the immediate problems of our company.
It is the consensus opinion of the chauffeur staff that ample time
has passed since the events of 9/11/01, and we feel that the time
has now come to reimplement the old policies-Re: Raise Structure,
401K, Medical benefits.

At this time we respectfully request that you lift your raise freeze and
for you to approve a .50 cents minimum per hour wage increase at
the time of the chauffeur’s annual review. We feel that this rate is an
acceptable amount so your employees can continue their hard work
and give us an hourly increase that we have earned.

We also request at this time to keep secure all existing Music Express
benefits with the agreement that they will not be reduced in any way.
We would like to invite you for a discussion on improving other
existing benefits and for the introduction of future incentives.

We further ask consideration to increase the medical benefit package
to make it more affordable for employees to insure their families. You
always say we are family, so you will understand that we also need to
have structure, security and stability in our families with a good sound
benefit package.

The meeting held by you and your staff while not intending to do so,
had a demoralizing effect on your staff here in New Jersey. In fact it
motivated some of your staff to seek out other sources for help. This
is not what your chauffeur staff wants. We are reaching out to you,
we need your help! This committee wants to reach a reasonable
agreement so we can move forward and become a whole productive
group.

We would like to thank you for taking the time to read our proposal.
We trust that you find it a reasonable one and look forward to your
response within the next a couple of weeks.

Music Express East, Inc. – Committee Members:

Michael Murray Ira Berlowitz Steve Wilson Victor Duncan
Bill Griffin Anthony Tattoli Fred Abu-Dial

Berkman responded by letter of June 12, essentially refusing to deal with the chauffeurs
committee, because the Union filed charges5 against Respondent, and based on advice of
counsel. The letter reads as follows:

5 The Union filed its initial charge on May 7, concerning the discharge of Mercho, and then
on May 17, filed an amended charge, alleging various unfair labor practices, including the
creation of a drivers committee.

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June 12, 2002

Dear Michael, Bill, Ira, Anthony, Steve, Fred and Victor,

I am in receipt of your letter of last Friday, June 7th. I sincerely
appreciate the concerns you have expressed for our Company,
and your desire to collaborate with me and your Management in
rebounding from the debilitating impact of the tragedies of
September 11th upon our industry.

You mention that some of the Chauffeurs felt the need to seek
sources outside of our Company for help. I wish all of our
Chauffeurs displayed the same confidence in themselves and
our Company as that shown by you, and the Chauffeurs on whose
behalf you have spoken. Yet, the fact remains that, as a
consequence of the pursuit for outside intervention – even if only
by a few – the rules have been radically changed for all of us.
Specifically, Local 805 of the Teamsters – the “outside help” I
imagine you were referring to – has interfered with your effort
to deal directly with me and your Company, and has completely “
tied our hands.” The union already has filed a series of unfair labor
practice charges with the National Labor Relations Board, claiming
that Rich Badalamenti and your other New Jersey Management
violated federal law in conducting several meetings, which
some Chauffeurs sought in order to address various concerns.
The union is claiming that we harassed our Chauffeurs, spied on
you, interrogated you, and the rewarded you for rejecting the
Teamsters.

The union is also contending that one Chauffeur, who was
terminated for perfectly justifiable reasons, was actually (they claim)
fired because he was a Teamster activist, even though Management
had no idea that he had anything to do with the union. Plainly, the
Chauffeur and the union have fabricated a story for the National
Labor Relations Board that he was an active Teamster supporter, in
in the hope that Music Express would be forced to take him back, so
that they could claim that no one can be fired for so long as they are
involved with the union. This is false. Music Express has the right to
continue managing our business without regard to the union, and we
intend to do so. We have not, and we will not, discriminate against
any Chauffeur for engaging in whatever lawful activity they choose to
pursue. However, we intend to defeat the union’s false accusations
about the Chauffeur’s termination, no matter how long it takes to
expose their lies. Eventually, the truth will come out.

Worse yet, as soon as the Teamsters learned that some Chauffeurs
had formed your Committee, they moved to eradicate it! The
Teamsters, among other outrageous moves, has asked the National
Labor Relations Board to file a lawsuit in the United States Federal
Court in Newark to prevent Music Express from communicating with
your Committee, in any manner, including by an exchanges of
correspondence such as this. So that you will fully understand how

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extreme this Teamster request truly is, the National Labor Relations
Board gets involved in the type of injunction proceeding which the
union has requested in only a handful of cases out of thousands
around the U.S.A. every year.

Let me be crystal clear about one thing: Music Express and I will
fight for as long as it takes to defend ourselves against such patently
false and offensive charges! Unfortunately, in the meantime, I have
been advised by our legal counsel that we would only add fuel to the
union’s fire if I do anything other than inform you (as I am by this
letter) that the union is seeking to disband your Committee. and
preclude the Company from unilaterally responding in a productive
manner to the issues you have raised. I am sorry to disappoint you,
but the union has given me no choice but to proceed cautiously, with
the guidance now of lawyers to protect all of us, for so long as the
union outsiders continue to organize among our Chauffeurs and
attempt to speak for you. You were fair and well-intentioned in
sharing with me that you feel mistakes were made, and that, even
though not intended, you morale was hurt. Regrettably, the Teamster
charges have taken away any chance I had to make amends, without
the union in the picture, and to act quickly to restore your faith in me
and your Company.

Of course, as I am sure you can figure out for yourselves, a union
knows when it tries to organize any company’s employees, that if the
employees have formed a committee (like yours) to work with
management to solve their problems, all the union had to do is force
the company (by National Labor Relations Board charges such as we
are facing) to cease interacting with the employees’ committee, and
then, most employees, out of sheer frustration, will often tend to vent
their anger at the company, and blame management for not fixing
their problems. Frankly, that’s what’s going on here at Music Express.
But, I’m confident you’re all smart enough to place this blame
precisely where it belongs.

As you may know, the Teamsters had, and still has, another choice:
The union could ask the National Labor Relations Board to conduct a
secret ballot election, so that you and your Chauffeurs could decide
whether to let the Teamsters represent you in dealing with Music
Express, or to continue speaking for yourselves (perhaps through a
committee such as yours). Unfortunately, the Teamsters have chosen,
instead, to go down the costly, time-consuming, and contentious path
of litigation.

I have no alternative but to refer you, at this time, to your fellow
Chauffeurs and the National Labor Relations Board for a solution to the
issues you have raised in your letter.

Sincerely,
Cheryl Berkman

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The record contains no further evidence of any dealings by Respondent with the
chauffeurs committee, nor whether the committee is still in existence.

D. THE DISCHARGE OF EMAD MERCHO

Emad (Teddy) Mercho was hired by Respondent as a driver in January of 1999. Mercho
worked regularly Sunday through Fridays, generally starting work at about 1:00 p.m., and
working until Midnight. However, at times when one of his regular clients would request him,
Mercho would agree to accept a job in the mornings.

Mercho had some discussion with Richter and other employees in March and April about
bringing in the Union. Mercho was informed about the Union meetings in April, but he did not
attend because he was working.

On April 23, at about 1:00 a.m. in the morning, after his shift, Mercho and fellow
employee Johnny Acosta were in Respondent’s parking lot. Acosta gave Mercho a union
authorization card to sign. They discussed it, Mercho read it and filled it out, signed it and
returned it to Acosta. Acosta subsequently gave the card to Richter. No representative from
Respondent was around or observed Mercho sign the card.6

Mercho attended the April 24 meeting conducted by Badalamenti, wherein as related
above, Badalamenti proposed the formulation of a chauffeurs committee, and distributed a list
for volunteers to sign up. Mercho was one of only two employees who signed up for the
committee at the April 24 meeting. As also related above, Badalamenti subsequently sent a
memo expressing disappointment about the lack of volunteers, and again asking for employees
to sign up and volunteer.

On April 24, the day after he signed the union card, as Mercho was coming into work in
the parking lot, he met Isaac Williams. Mercho was aware that Williams had been a driver-
trainer, but for some period of time after 9/11/01, he was relieved of his trainer responsibilities,
and became solely a driver. Williams was not happy about that decision, and he (along with
other drivers) was complaining about harassment from dispatchers. Therefore, Mercho felt that
perhaps Williams might be interested in the Union. Mercho explained to Williams what was
going on with the Union, and that the employees needed to support the Union to give them
some power against the problems caused by Respondent. Mercho informed Williams that he
(Mercho) had signed an authorization card for the Union, and asked Williams if he would be
interested in signing a card to support the Union. Williams replied that he thought that the Union
was a good idea, but since he had been reinstated to his training position, he wanted to think
6 This finding is based on the mutually corroborative testimony of Mercho, Acosta and Matt
Ginsberg, who testified that he saw the card signed by Mercho, prior to the termination .
Respondent argues that this testimony should not be credited since the card was not produced.
I do not agree. I find the corroboration of Acosta (who is still employed by Respondent) and
Ginsberg sufficient to credit Mercho that he signed a card on March 23. Mercho’s testimony as
to dates is somewhat confusing, since he testified that he signed the card after the meeting he
attended with Badalamenti on April 18, but in fact that meeting, was on April 24. But Acosta
was certain that the date of the signing was April 23, because it was the day before the April 24
meeting. His testimony I found to credible, particularly since he is still employed by
Respondent. Therefore, based on the foregoing, I conclude that Mercho signed the union
authorization card on April 23.

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about it.7

On or about April 30, when Mercho was picking up his assignment, Segallini called him a
“loser”. Mercho made no response, but called Barbara Chizmadia, left a message on her voice
mail complaining about Segallini, and asked to see her about it.

On May 1, Chizmadia called Mercho at home and asked him to come to the office to see
her. However, when Mercho arrived at the office Chizmadia was not there, and Mercho was
called into Badalamenti’s office. Badalamenti informed Mercho that it would be good for you
and good for the Company if he no longer worked for Respondent. Mercho asked why, and
Badalamenti explained that after “what’s been happening”, Mercho no longer works for the
Company and was terminated. Mercho pressed Badalamenti for an explanation of the reason
and what he meant by “what’s been happening”, but Badalamenti would not answer, and merely
wished Mercho “good luck” and shook his hand.

Later in the week Mercho went into the office pick up his check. At that time he asked
Chizmadia what the reason was for his discharge. She replied, “I don’t know what’s going on.”

On May 4, Mercho attended the Union meeting.8 Mercho informed Ginsberg and the
other employees that he had been terminated. He told Ginsberg about he had signed a card
and was fired without being given a reason. He told Acosta that he thought that he was fired
because of his union activities. He was advised by Ginsberg that an National Labor Relations
Board charge would be appropriate 9

Badalamenti was Respondent’s primary witness with respect to the discharge decision
made by Respondent. According to Badalamenti, sometime during the third week of April, he
saw a copy of a form from the New Jersey Department of Labor, which indicated that a claim
had been filed on behalf of Mercho for unemployment, which listed his last day worked as April
1, and the form had a date of mailing as April 15. Badalamenti then approached his dispatcher
manager Segallini and asked if Mercho was still working for Respondent, since it had received
an unemployment claim from Mercho. Segallini, according to Badalamenti, replied that Mercho
was still working for Respondent, but that Mercho hasn’t been around as much, and suggested
that Badalamenti listen to a recent taped conversation between Mercho and Segallini, which
might clarify the situation.
7 This finding is based on the testimony of Mercho. Although Williams unequivocally denied
having this conversation with Mercho, I credit Mercho. In addition to comparative demeanor
considerations, I rely upon the fact that Williams insisted that he was not angry about being
temporarily relieved from his training position, which I find highly dubious. Moreover, Williams
insisted that not only did not know about Mercho signing a card, but had no knowledge of any
specific employee, even Richter being a Union supporter. I find this testimony clearly
unpersuasive, since even Badalamenti conceded that he was aware of the fact that Richter and
Bricker were union supporters. Also, I have found above that Williams questioned Bricker about
whether Bricker supported the Union.
Further, Williams in fact admitted that he tried to attend the Union meeting on May 4, which
indicated that he did have an interest in the Union, which supports Mercho’s testimony that
Williams said that the Union was a good idea, and that he would think about signing a card.
Thus his attempting to attend the May meeting, suggests that wished to find out more about the
Union.
8 This was the first union meeting that he attended.
9 The charge alleging his discharge to be unlawful was filed by the Union on May 7.

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Badalamenti testified further that he then listened to a copy of the tape recorded
conversation, which occurred on April 18.

A transcript of this conversation was submitted by Respondent, which the parties agreed
was an accurate translation of the discussion. It began with Segallini asking Mercho how he
was doing and why Mercho appeared to be unhappy or mad at Respondent.

Most of the discussion revolved around Mercho’s dissatisfaction and complaints about
the amount and type of assignments that he was receiving from the dispatchers. He believed
that he was not being given his fair share of apparently more lucrative or desirable assignments,
such as vans or stretch’s. He also complained about having to wait between jobs for hours,
before receiving another assignment. Segallini responded at various times that Respondent
had nothing against him, and suggested that he call in earlier for jobs, which could improve his
chances of getting more work.

At one point in the conversation, Segallini asked Mercho about when he was available.
Mercho responded Monday through Friday. At another point in the conversation, Segallini
observed that Mercho would no longer be working on Sundays anymore. Mercho appeared to
confirm that statement, and complained that the dispatcher was not giving him work on
Sundays, so he had to get a part time job, in order to pay his bills. Segallini asked Mercho what
he does during the day. Mercho replied that he had another job, not a limo driver. Segallini
asked if this job was permanent, even if Respondent gets busy. Mercho answered “no, no, no”.

Mercho used the word “bullshit”, three or four times during the conversation, either in
reference to statements made by Segallini or to the way Mercho believed he was being treated.

After hearing this tape, Badalamenti asserts that he decided to discharge Mercho, but he
wanted to get the opinion of his counsel before he effectuated the decision. Badalamenti
testified that the reasons for his decision were that Mercho was filing for unemployment, when
he was still working for Respondent and that he had told Respondent during the tape, that he
had another job. Badalamenti testified as follows: “I don’t agree with people collecting
unemployment if they’re not entitled to it. And then, on top of of that, then he also got another
job somewhere. Is he working off the books and collecting and working for me? I’m starting to
wonder a lot of things, and it really, ‘pushed all my buttons.’ Geez, I felt like it was an
unemployment claim for no reason.”

Additionally, Badalamenti testified that the tape disclosed that Mercho no longer was
honoring his schedule, by refusing to work on Sundays any longer, and that he used profanity in
speaking to Segallini. Further, Badalamenti asserts that he felt that Mercho’s situation
paralleled another case that Respondent had with another driver.

Therefore, Badalamenti testified that he called his corporate counsel, Martin Goldman,
and asked him to listen to the tape and advise Badalamenti what to do. According to
Badalamenti he did not tell Goldman at that time that he had decided to fire Mercho but only that
he had a situation that seem similar to Debowsky, and he wanted Goldman’s opinion.

Badalamenti further testifies that after Goldman received the tape, Goldman went on
vacation, so that he did hear from Goldman, until May 1. At that time, Badalamenti asserts that
Goldman informed Badalamenti “you probably gotta let him go”, because”its too much like
Debowsky.” Badalamenti also claims that Goldman advised him to be vague about the reasons
for discharge, when informing Mercho, and just say “things aren’t working out.”

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A termination report was prepared by Respondent’s H.R. representative “Buddy” at
Badalamenti’s direction, which Badalamenti signed on May 1. The form listed as reasons for
separation, “decreased availability for work, application for unemployment while still employed,
abusive language to dispatcher.”

Respondent also adduced evidence through Robert Smith a representative from the
New Jersey DOL, which established that on April 12, an application for unemployment
insurance for Mercho was filed by phone stating his last day of work was April 1. The testimony
also reflects that this was actually a reopening of a prior claim filed on behalf of Mercho in
September of 2001. At that time, subsequent to September 11, 2001,, a number of companies,
including Respondent became involved with partial unemployment claims, which were filed on a
mass basis for many employees. Thus employees could receive partial unemployment, even if
they worked part-time during various weeks. Mercho received both partial and full
unemployment benefits from September 15, 2001 to October 30, 2002. He received partial
benefits for those weeks, where information was submitted reflecting that he received partial
earnings for certain weeks.

Chizmadia furnished testimony which was corroborative of Smith, in that after
Respondent received a printout of Mercho’s unemployment history from the New Jersey
Department of Labor on September 9, 2002, she spoke to Robin Clark a representative of the
Agency. Clark told her that based on Clark’s reading of the printout, Mercho had called in to the
Department of Labor on April 12, and asserted that he was laid off on April 1.

This printout also reflected that Mercho actually received full benefits from
unemployment, starting on April 13, 2002. It also showed that no earnings were reported for
Mercho for these weeks. A subsequent printout, introduced by General Counsel, dated
September 20, 2002, showed that earnings were in fact reported for Mercho for the weeks of
April 13 through April 30. These two documents indicate that these earnings were not reported
until some time between September 9, 2002 and September 30, 2002, which is the period after
Mercho’s testimony in this matter.

Mercho attempted to explain the filing in April by asserting that he believed that he was
merely filing again for partial unemployment, as he did in September of 2001. He asserts that
he filed at the suggestion of Chizmadia, after he complained to her about the fact that he was
not receiving sufficient work from Respondent. Chizmadia denied having any conversation with
Mercho about unemployment insurance in April of 2002. I credit Chizmadia’s testimony in this
regard, and find that Mercho sought to reopen this claim on his own in April of 2002. I also find
that Mercho probably did so because he believed that he wasn’t getting enough work and
thought that he could collect at least partial unemployment, starting in April. However, I also
find that he did not report his earnings from Respondent in April of 2002 to the Department of
Labor, and did not do so until September 2, 2002, after he testified, and he realized his failure to
have done so could be a problem. I do note that Mercho was terminated on May 1, shortly after
he reopened his claim, and he may have intended to report his April earnings, but did not do so,
since he was fired on May 1.

As related above, Badalamenti made several references to the Debowsky case as
allegedly parallel to Mercho’s, and which according to Badalamenti was the reason that
Goldman allegedly recommended Mercho be terminated. In that regard, Respondent
introduced no documents or any evidence concerning the Debowsky case, nor did Goldman
testify to corroborate Badalamenti or to explain why Goldman allegedly felt the cases were
parallel and required that Respondent terminate Mercho.

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Badalamenti did furnish however, under cross-examination some details about the case.
According to Badalamenti, Barry Debowsky was a senior driver for Respondent, and got
involved in a pay dispute with Respondent. This dispute escalated into a lawsuit for $10.000 by
Debowsky. While this lawsuit was progressing, Debowsky started to gradually stop coming to
work, and refusing work for Respondent. At some point, while still employed by Respondent,
Debowsky filed for unemployment. Since Debowsky had not been laid off by Respondent, after
consultation with Goldman, Respondent took the position that he had resigned, and contested
Debowsky’s unemployment claim. The unemployment claim was decided in favor of Debowsky
after a telephone hearing. While Respondent appealed this determination to the highest level,
the appeals were unsuccessful, and unemployment benefits were paid to Debowsky. The
lawsuit for the $10,000 back wages against Respondent was still pending at the time of the
hearing.

The record reflects that Respondent never contested Mercho’s unemployment claim. It
appears that at one point Respondent might have intended to do so, since files reflect that the
form was partially filled out, and under the question reason for separation, the words “filing
partial unemployment benefits” was written in by Respondent’s H.R. director, who did not
testify. The form was not dated, or signed by anyone from Respondent, so it is not even clear
whether this comment was written in before or after Mercho’s discharge on May 1.

General Counsel introduced several documents from Respondents personnel files,
dealing with instances of prior disciplinary actions against other employees. They include a
termination report for employee David Cooke, dated January 23, 2002. It reflects that he was
discharged for job abandonment, and refers to attached write-ups. These documents reveal
that Cooke had applied for temporary unemployment insurance in September 2001, although he
was not one of those temporarily laid off at that time. It also appears that he had not called in
for work after September 9, 2001. Finally, on January 23, 2002, Cooke was called into
Respondent’s office to speak with Chizmadia and Segallini. Cooke was asked by Respondent
why he had filed for unemployment and said he was temporarily laid off on September 14, 2001,
when no one from Respondent ever laid him off. Cooke replied that he did not remember. He
was asked who laid him off and did he receive a letter from Respondent. Again Cooke did not
remember. Cooke also informed Respondent that he had not called for work for months,
because he was still upset about the September 11, 2001 tragedy.

Chizmadia’s note added that Cooke was abrupt and hostile and before she finished the
conversation, got up and said abruptly, “are you going to fire me or not”, and stormed out of the
office. By letter dated January 23, 2002, Respondent notified Cooke that he was terminated.
The letter goes on to say, “after you left my office today so abruptly and after further discussion,
we feel due to the lack of respect you have shown by not returning to work or communicating
with us since your last day of work which was September 9, 2001. These actions on your behalf
are considered job abandonment.” Notably, the letter made no reference to Cooke’s having
filed for unemployment, although he was not laid off. Respondent also advised the Department
of Labor by letter of January 25, 2001, that Cooke was not laid off, and that the claim for him
was falsely submitted.

Documents from the personnel file of Keith Davis reveal that effective September 4,
2000 he declined to work on Sundays, and then on April 7, 2001, wrote to Respondent that he
was not available on Saturdays either. The letter was discussed with Davis, who told
Respondent that he had babysitter problems. Respondent agreed to work with Davis, and
indicated that it would not be a permanent situation and would revisit this in a couple of months.
Apparently Respondent tolerated Davis’s continued failure to work weekends, since the files
reflect no further changes in his status, until he voluntarily quit his employment on February 22,

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2002 to move out of town.

Finally, Respondent’s files reveal that employee Harris Yakov received two one-day
suspensions for abusive language. On January 4, 2001, his first suspension was signed by
Chizmadia, and reflects that Yukov was suspended for disorderly conduct and insubordinate
behavior. It adds that Yakov was argumentative and aggressive, continued to yell, claimed
favoritism in the office and that office personnel do not do their jobs properly. The comment
card which appears to form part of the basis for this incident, was filled out by a dispatcher on
November 18, 2000. It indicates that Yakov started yelling about not getting a switch, and threw
down the keys and stormed off.

Yakov received another one-day suspension on January 19, 2001, due to “abusive
language towards dispatcher” for an incident on January 18, 2001. The comment card reflects
that Yakov “verbally abused” the dispatcher, by calling the dispatcher an “asshole and a “son of
a bitch.” The comment concludes with the dispatcher stating, “I will no longer take verbal
abuse.”

Yakov’s file also included another comment card, dated January 8, 2001 from Segallini,
which stated Yakov “always has a snide remark instead of answering the question posed to
him”. It does not appear that Yakov was disciplined for this conduct.

Yakov was not further disciplined, and resigned o March 20, 2001. His termination
report, which indicates that he resigned, states that Respondent would not recommend him for
rehire, because he was “very abusive with co-workers and bad attitude.”

As I have noted, the above files contained comment cards, filled out by dispatchers
which formed the basis for discipline of various employers. However, no such comment card
was filled out by Segallini, concerning the taped conversation that he had with Mercho, which
Badalamenti asserted formed the basis for his discharge decision. Badalamenti also admits
that Segallini never complained to him about abusive language by Mercho or indeed about
Mercho’s refusal to work on Sunday. In fact it appears that had not Badalamenti approached
Segallini about Mercho, Segallini had no intention of bringing to Badalamenti’s attention the
taped conversation.10

Finally, Mercho did not dispute the conversation with Segallini, but asserts that the
reason for the discussion, was Mercho’s prior complaints to Chizmadia about Respondent’s
failure to assign him sufficient or desirable work. Mercho adds that in fact he did not have
another job at the time, although he admits telling Segallini that he did. He explained that he
was “trying to trick” Respondent, since he felt that they were not giving him enough work. He
also asserts that he believed that Segallini was “trying to trick” him, because he felt that he had
been given an assignment for a job on Sunday, when it knew or should have known that the job
was not going to show up. In fact according to Mercho, the client did not show up, as Mercho
had feared, and he received only two hours no show pay for that job.

10 Segallini did not testify. Thus there is no explanation of why Segallini did not find it
necessary to notify Badalamenti about the conversation or why he did not fill out a comment
card, detailing the discussion.

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III. ANALYSIS

A. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) OF THE ACT

(1) THE SOLICITATION OF GRIEVANCES

It is well established that when an employer institutes a new practice of soliciting
grievances during a union organizational campaign, there is a compelling inference that it is
implicitly promising to correct those inequities it discovers as a result of its inquiries and likewise
urging its employees that the combined program of inquiry and correction will make union
representation unnecessary. Embassy Suites Resort, 309 NLRB 1313, 1316 (1992); K-Mart
Corp.316 NLRB 1175, 1177 (1995); Foamex, 315 NLRB 858, 859 (1994); Reliance Electric Co.
191 NLRB 44, 46 (1971).

There can be no doubt that Respondent has violated the Act, in accord with the above
precedent, by soliciting grievances from employees with an implied promise of benefit if
employees reject the Union.

Thus on April 18, Respondent’s Vice-President Badalamenti conducted a mandatory
meeting during which he invited employees to air any complaints that they may have, after
informing the employees that “outside sources would be catastrophic to the company and its
employees.” The employees raised various problems and issues, including the loss of one
hours prep time. Badalamenti informed the employees that he would consider their complaints,
and would get back to them at the next meeting. He concluded the meeting by saying that
Respondent, “without outside representation can handle all problems.”

Thus while Badalamenti made no specific mention of the Union, his references to
“outside representation”, and “outside sources”, can have no other meaning. It is clear that
Respondent at that meeting solicited grievances from employees, with an implied promise to
resolve them, in order to discourage union representation. Such conduct is violative of Section
8(a)(1) of the Act. Foamex supra; K-Mart supra; Embassy Suites supra; Reliance Electric
supra.

(2) THE PROMISE AND GRANT OF BENEFITS

At the April 18 meetings Badalamenti made specific reference to the complaints of
employees, particularly the loss of one hour prep time, and stated that he would consider these
matters and get back to the employees at the next meeting. At the April 24 meeting,
Badalamenti announced that Respondent was granting the employee’s request to restore the
one hour’s prep time that had been taken away, and that Badalamenti would, in response to
employees’ complaints about dispatchers, became more personally involved in matters
previously handled by dispatchers, and would monitor dispatchers conduct. Notably
Badalamenti added that he didn’t understand why the employees still wanted a union, since
Respondent was following up on last weeks meeting and had some results for employees.
Further Badalamenti suggested the formation of chauffeur’s committee which would represent
drivers and go over problems with Badalamenti and reach a conclusion.

The above evidence demonstrates blatant violations of Section 8 (a)(1) of the Act of
promising and granting benefits to employees, to dissuade them from supporting the Union.
Clearly the entire thrust of Respondent’s conduct at these meetings was to promise the
employees that their concerns can and would be taken care of, without the necessity of a union,
and that the chauffeurs committee would be a substitute for the Union. Such conduct is

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violative of Section 8(a)(1) of the Act. Research Federal Credit Union, 310 NLRB 56, 62-63
(1993), Hunter Douglas Inc. 277 NLRB 1179, 1185 (1985); J. Coty Messenger Service, 272
NLRB 268, 269 (1984).

Further instances of unlawful promise of benefits occurred during Badalamenti’s
conversation with Richter on May 3, the day after the election of the chauffeurs committee.
Badalamenti accused Richter of being inconsiderate and hurting the company by continuing to
push for the Union, and not giving him a chance. Badalamenti added that he was trying to do
the right thing by organizing the committee. These comments are additional implied promises
that Respondent through dealing with the committee will remedy the complaints of the
employees, instead of having to resort to the Union.

Additionally, on May 8, Badalamenti met with Bricker and Richter to discuss the letter
sent by the Union organizing committee. Badalamenti asked the employees to hold off on the
Union’s organizing for three months, in order to give Respondent a chance to prove itself and
allow the chauffeurs committee to function. These remarks are further instances an unlawful
implied promise of benefit, to dissuade employees from engaging in Union activities, and is
violative of Section 8(a)(1) of the Act.

Moreover, at the April 24 meeting, the above facts reveal that Respondent granted
benefits to employees. Thus Badalamenti announced that Respondent was restoring the 1 hour
prep time that had been taken away, and that in response to employee complaints about
dispatchers, that he would monitor dispatch and take over some dispatch functions.
Badalamenti summarized these decisions in an April 26 memo to employees. There can be no
doubt that these benefits were granted in order to discourage employees from supporting the
Union. Thus the timing and context of the announcement, coming in the midst of anti-union
statements, including Badalamenti’s own statement on April 24, that he couldn’t understand why
employees still wanted a union, since Respondent was following up on last weeks meeting and
had some results for the employees, creates a strong inference of unlawful motivation. Since
Respondent has failed to come forward with any evidence to establish a legitimate reason for
the timing of these benefits, Respondent has further violated Section 8(a)(1) of the Act. Holly
Farms Corp., 311 NLRB 273, 274 (1993); B & P Plastics 302 NLRB 245 (1991); Hunter Douglas
supra; Research Federal, supra at 62-63.

(3) THE ALLEGED SURVEILLANCE AND
IMPRESSION OF SURVEILLANCE

In early May, Badalamenti called Richter into his office. After accusing Richter of being
inconsiderate by continuing to push for the Union, I have found above that Respondent
unlawfully promised benefits to employees, when Badalamenti asked to be given a chance to do
the right thing by employees. Badalamenti then informed Richter that he knew for a long time
about the organizing and pointed to May 4 on the calendar and added that he knew when and
where the next union meeting would be. In these circumstances, Badalamenti’s comments
about his knowledge and details of the Union meeting, would reasonably lead employees to
assume that their Union activities were under surveillance, and are therefore violative of Section
8(a)(1) of the Act. The Hertz Corp., 316 NLRB 1022, 1025 (1993); Bay Corrugated Container
Co., 310 NLRB 450 455-456 (1993).

General Counsel also contends that comments made to or in the vicinity of Bricker by
various dispatchers are similarly violtive of the Act. Thus the record revealed that an unnamed
dispatcher stated to a driver, “here come the shop steward.” Further night dispatcher Wong
asked Bricker “how did the union meeting go”? Finally, Segallini made comments to a driver,

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with Bricker next in line. These statements included “remember Jimmy Hoffa”, and when the
driver asked for a new vehicle, “well, if you don’t like it take it up with your union rep.”.

While some or perhaps all of these comments could be found to have given the
impression to employees that their activities were under surveillance, a crucial element for
finding a violation is missing. The statements must have been made by supervisors or agents
of Respondent. Here the complaint does not allege that Segallini, Wong or any other dispatcher
of Respondent are supervisors or agents of Respondent. Nor did General Counsel seek to
amend the complaint to so allege. Thus the issue of the supervisory or agency status of these
individuals was not fully litigated. In these circumstances, I find it inappropriate to find violations
of the Act, based on the conduct of these dispatchers as General Counsel requests.

General Counsel also alleges that Respondent engaged in actual surveillance of the
Union activities of its employees by the conduct of admitted supervisor Williams of signing in at
and attempting to attend the Union meeting on May 4, at the Holiday Inn Hotel. Fairfax Hosp.
310 NLRB 299, 320 (1993); Hoschton Gourmet Co. 279 NLRB 565, 567 (1986). General
Counsel argues that since Williams intentionally tried to attend the meeting, such action has the
tendency to unreasonably chill the exercise of employees Section 7 rights, and constitutes
unlawful surveillance of protected activities. Hoschton Gourment supra, Fairfax Hospital supra.
I do not agree.

“Not all instances where employer representatives are at or in the vicinity of the union
activities of their subordinate employees amount to unlawful surveillance.” P.V.M.I. Associates
d/b/a King David Center, 328 NLRB 1141, 1142 (1999); Gossen Company, 254 NLRB 339, 353
(1981), modified on other grounds 719 F,2d 1354 (7th Cir. 1981),

Moreover, the mere presence of employer’s representatives at a union meeting, without
more specific evidence that it was not for a legitimate purpose, or that it was for the purpose of
observing the meeting, establishes neither surveillance of the meeting, nor a reasonable basis
for an impression of surveillance in the minds of employees in attendance at the meeting.
Atlanta Gas Co., 162 NLRB 436, 438 (1966); See also Universal Packaging Co., 149 NLRB
262, 263-64 (1964) (Board reverses ALJ and find that presence of supervisor at Motel where
union meeting took place was not violative of Act. Board finds no evidence purpose of
supervisor going to hotel was to observe meeting.)

Therefore, based on the above precedent, it is essential to examine the facts that led to
Williams’ attendance at the meeting. Here the organizing committee distributed a flyer inviting
drivers to attend a union meeting on May 4 at the Holiday Inn. Since Williams was also a driver
in addition to being a Trainer and a supervisor, he reasonably concluded that he was being
invited to the meeting. Indeed the flyer did not specify that supervisors were excluded.
Moreover, as I have found above, on or about April 23, Mercho had asked Williams to sign a
card for the Union. Williams indicated to Mercho that it was a good idea, but he wanted to think
about it. Therefore, in these circumstances, not only is there no evidence in the record that
even suggests that Williams intended to go to the meeting to spy on employees, but on the
contrary the evidence establishes clearly that he went to the meeting because he wanted to
attend, because he believed that he had been invited, and that as a driver he had right to be
there. A supervisor has a right to attend union meetings, as long as he is not directed to do so
by the employer, and even to join the union, if admitted to membership. Howard Johnson Motor
Lodge, 261 NLRB 866, 871 (1987).

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Here there is no evidence that Respondent directed Williams to attend. Although
Williams did inform Badalamenti of what transpired when he went to the meeting, this evidence
does not establish that Badalamenti directed him to go or even knew about it beforehand. In
fact Badalamenti’s response to Williams, that it was up to him, but that “I don’t see why you
went”, establishes that Badalamenti did not instruct Williams to go to the meeting, and was not
aware of Williams’ intention to go to the meeting prior to Williams going.

Based on the above analysis and precedent, I conclude that Williams’ conduct in
attending a union meeting, to which he had been invited, and where he was attending because
he believed he was entitled to be there, cannot be construed as unlawful surveillance, and is not
violative of the Act. I shall therefore recommend dismissed of this allegation in the complaint.

(4) THE ALLEGED INTERROGATION

In mid April, Williams asked employee Bricker, “if he was down with the Union.” Bricker
replied that he didn’t want to say anything about it. The complaint alleges and General Counsel
contends that this questioning constitutes coercive interrogation, in violation of Section 8(a)(1) of
the Act. I agree.

Here, at the time of the questioning, the union campaign was in its infancy, and neither
Bricker nor anyone else had revealed themselves to be union adherents. Thus Bricker was not
an open union adherent. Hertz Corp., 316 NLRB 672, 684 (1995);Southdown Care Center, 308
NLRB 225, 233 (1992); Sivalls Inc., 307 NLRB 926, 1003 (1992); Jakel Motors, 288 NLRB 730,
732 (1988).

Also, the evasive response made by Bricker that he didn’t want to say anything about it,
objectively indicates possible fear of retaliation, and is strongly supportive of the coerciveness of
the question. NLRB v. McCullough Environmental Services Inc., 5 F.3d 923, 929 (5th Cir. 1993);
NLRB v. Brookwood Furniture, 701 F.2d 452, 462 (5th Cir. 1983); Southdown Care supra.

Finally, the questioning occurred in the context of other unfair labor practice that I have
found above, such as unlawful promises and grant of benefits solicitation of grievances and
creating the impression of surveillance, and the unlawful creation and domination of the
chauffeurs committee, which I find below. In such circumstances, these unfair labor practices
reasonably tend to color the employees perception of the character and reason for the inquiry,
and render such questioning coercive. Ickikoh Mfg, 312 NLRB 1022, 1025 (1993); Jakel Motors
supra at 730; EDP Medical Computer Systems, 284 NLRB 1232, 1264-65 (1987).

Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by Williams’
coercive interrogation of Bricker.

(5) THE ALLEGED DOMINATION OF THE
CHAUFFEURS COMMITTEE

In determining whether Respondent has violated Section 8(a)(2) of the Act by
dominating or supporting the chauffeurs committee, it is necessary to conduct a two pronged
inquiry. The first step involves examining whether the committee is a “labor organization” as
defined in Section 2(5) of the Act. Second, if the committee satisfies the criterion for a labor
organization, the second inquiry is whether Respondent has dominated or interfered with the
formation or administration of the committee. Polaroid Co., 329 NLRB 424 (1999), EfCO
Corp.,327 NLRB 372, 373 (1998); Electromation, Inc., 309 NLRB 990 (1992), enfd 35 F.3d 1140
(7th Cir. 1994).

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In defining a labor organization under Section 2(5) of the Act, the Board assesses
whether, (1) the employees participate; (2) if the organization exists, at least in part, for the
purposes of dealing with the employer; and (3) if these dealings concern conditions of work
such as grievances, wages, rates of pay, hours of employment. EFCO supra; Polaroid supra;
Electromation supra.

There can be no doubt that the chauffeurs committee here meets the definition set forth
above. Indeed, Respondent does not dispute, as it should not, that numbers one and three in
above definition have been met. Thus I find, without any further discussion, that employees
participate in the committee, and that the committee’s dealings concern terms and conditions of
employment.

Respondent does dispute however, that the General Counsel has established that the
committee exists at least in part for the purpose of “dealing with” Respondent. In that regard the
Board has explained that ” dealing with” contemplates a bilateral mechanism involving
proposals from the employee committee concerning the subjects listed in Section 2(5), coupled
with real or apparent consideration of those proposals by management. The bilateral
mechanism ordinarily entails a pattern or practice in which the group of employees, over time,
makes proposals to management, and responds to these proposals by acceptance or rejection
by word or deed. Polaroid supra, E.I. Dupont, 311 NLRB 893, 894 (1993).

Respondent argues that the evidence presented by General Counsel is insufficient to
meet this definition of in effect a bilateral process. Quoting from Polaroid supra and
Electromation, Respondent stresses that “purpose is a matter of what the organization is set up
to do and that is shown by what the organization actually does”. Id at 424 Fn 3.

Respondent contends that General Counsel has not adduced any probative evidence of
what the committee actually did, since it failed to produce any witnesses who were present
during the May 2 meeting, which appears to be the only meeting held by the committee.
However, notwithstanding the lack of direct evidence of what went on at that meeting, the record
contains more than sufficient evidence of what transpired there, as well as other evidence to
conclude, which I do, that the committee was set-up to “deal” with Respondent under the
Board’s definition detailed above.

Indeed, when Badalamenti announced formation of the committee to the employees, he
told them that it would “represent” the drivers and act as liaison between drivers and
management. The committee would then meet with Respondent, go over problems that drivers
have, and “try to reach a reasonable conclusion.” This description of the committee function
clearly contemplates a bilateral mechanism wherein employees make proposals and
management responds by acceptance or rejection.

Further, the evidence discloses that after the May 2 meeting of the committee, it decided
to distribute questionnaires to drivers, asking for their concerns. In that connection, committee
members told drivers that the committee intended to present the drivers concerns, as expressed
through the questionnaires to Berkman. That is precisely what the committee did, in its June 7,
letter to Berkman, wherein it made several demands upon Respondent, such as a .50 cents per
hour wage increase, re-implementation of 401-k and medical benefits, and an agreement to
keep secure all existing benefits. The letter adds that the “committee wants to reach a
reasonable agreement so we can move forward and become a more productive group.”

This letters alone is more than sufficient, in and of itself to establish the purpose of the
committee. Respondent stresses the significance of Berkman’s reply of June 12, wherein

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Respondent refused to deal any longer with the committee, because of the Union’s charges, I
find this reliance misplaced. The fact that Respondent, because of the Union’s charges and
advice from legal counsel, declined to respond to the committee’s demands or to continue to
deal with it is irrelevant. Further it has no bearing whatsoever on the purpose of the committee.
In fact a careful reading of Berkman’s response, makes it crystal clear what was intended by the
committee. Thus the letter blames the Union for denying Respondent the opportunity of
“responding in a productive manner to the issues you have raised”, and for taking away “any
chance I had to make amends, without the Union in the picture, and to act quickly to restore
your faith in me and your Company.” The letter adds further that the committee had been
formed by employees to “work with management to solve their problems”, and proposes that the
Union agree to an election, so employees can choose between being represented by the Union
or the committee. The above evidence cannot be more clear as to what was intended by
Respondent as the purpose of the committee.

Accordingly, I conclude that the committee is a labor organization within the meaning of
Section 2(5) of the Act.

The issue now turns to whether Respondent dominated the formation or administration
of the Committee. There can be no doubt whatsoever that Respondent’s conduct meets the
definition of domination. That is an organization that is the creation of management, whose
structure and function are essentially determined by management, and whose continued
existence depends upon the fiat of management. EFCO Co. supra at 376-377; Electromation
supra 995. Here Respondent announced the formation of the committee at mandatory
meetings, determined the structure of the committee, including the number of members,
solicited volunteers for the committee, issued a memo requiesting additional employees to
participate, held the election, counted the ballots signed the official tally of ballots, and
announced the results to the employees in a memo wherein it thanked everyone for
participating in the process. Based on the above circumstances, I conclude that Respondent
dominated the committee in violation of Section 8(a)(1) and (2) of the Act. EFCO supra;
Electromation supra.

(6) THE TERMINATION OF MERCHO

In assessing the legality of Respondent’s termination of Mercho, it must first be
determined whether General Counsel has established that a motivating factor in Respondent’s
decision, was the union or protected activity of Mercho. Wright Line, 251 NLRB 1083 (1980).
Once General Counsel has met that burden of proof, the burden shifts to Respondent to prove
by a preponderance of the evidence, that it would have taken the same action absent his
protected conduct. Wright Line, supra; NLRB v. Transportation Management, 462 U.S. 393
(1983).

Here I conclude that General Counsel has presented compelling evidence that a
motivating factor in Respondent’s decision to terminate Mercho was his union activities.

Respondent vigorously argues that it had no knowledge of Mercho’s union activities,
based on the testimony of Williams and Badalamenti. However, I have credited Mercho’s
testimony that he signed a card for the Union on April 23, and the next day asked Williams if he
(Williams) was interested in signing a card to support the Union, and told Williams that he
(Mercho) had signed such a card. Therefore, since Williams is admittedly a supervisor and
agent of Respondent, his knowledge of Mercho’s union activity is imputed to Respondent.
Woodlands Health Center, 325 NLRB 351, 361; Ready Mix Concrete Co. v. NLRB, 81 F. 3d
1546, l552 (10th Cir.) affg 317 NLRB 1140, 1143-1144 (1995). Moreover, I find it highly likely

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that Williams would have informed Badalamenti about his conversation with Mercho. Thus,
Williams admitted that he told Badalamenti that he had gone to the Union meeting, and had
been asked to leave, so I find it probable that he also informed Badalamenti about his
discussion with Mercho about the Union.

The termination of Mercho occurred within a week of the conversation between Mercho
and Williams, and a few days before the scheduled union meeting of May 4, of which I have
found Badalamenti was aware.11 This “astonishing timing” provides substantial evidence of
antiunion motivation. Fiber Products, 314 NLRB 1169, 11186 (1997); Trader Horn of New
Jersey, 316 NLRB 194, 198 (1995). Indeed, “timing alone may suggest antiunion animus as a
motivating factor in an employer action.” Cell Agricultural MFG Co., 311 NLRB 1220, 1232
(1993); Sawyer of NAPA, 300 NLRB 131, 150 (1990).

Respondent argues that Mercho was admittedly not one of the leading organizers, and
was not even a member of the organizing committee. However, while true, these facts are not
significant. Mercho did sign a card for the Union, this fact became known to Respondent, and
shortly thereafter Mercho was terminated. What is also significant in my view is that Mercho
had been one of only two employees to initially sign up for the chauffeurs committee at
Badalamenti’s meeting of April 24. Thus at the same time that Mercho was signing up for the
committee, he was also signing for the Union and attempted to persuade Williams to do the
same. Thus I believe that Badalamenti likely viewed Mercho as someone trying to “play both
sides of the fence”, and someone whom, he could not trust in his campaigning to forestall the
Union’s campaign by substituting the committee. Therefore, Badalamenti in my judgment felt
that Mercho would be someone that he should get rid of, because of his “two faced” behavior, of
supporting the union and the committee. Further, since Badalamenti knew that there was a
union meeting scheduled for May 4, what better way could there be to intimidate the employees,
then to terminate one of the union’s supporters, right before that meeting. Indeed, it was
reasonable for Badalamenti to conclude, that Mercho would attend the union meeting and
announce his termination, which in fact Mercho did. There can be little doubt that such an
announcement by Mercho sent a message to the other employees at the meeting, which I
believe Badalamenti intended, that their own continued union support could result in similar
action against them.

Moreover, the record contains substantial evidence of Respondent’s animus towards the
union activities of its employees, in addition to the suspicious timing. I have found above that
Respondent committed blatant violations of Section 8(a)(1) and (2) of the Act by dominating and
interfering with the affairs of the chauffeurs committee. Thus action was a clear attempt to
persuade employees to abandon their union efforts, and Badalamenti made several statements
indicating animus towards the union, including referring to it as outside forces that would be
catastrophic to the company and its employees.” Further, Respondent criticized Bricker and
Richter for continuing to organize, and not giving Respondent a chance to allow the chauffeurs
committee to function. Additionally, I have concluded above that Respondent violated Section
8(a)(1) of the Act, by various other acts, such as the solicitation of grievances promises and
grant of benefits to discourage employees from supporting the union, creating the impression
that their union activities were under surveillance, and coercive interrogation.

11 In that connection as noted above, I have found that Badalamenti informed Bricker that he
knew about the May 4 meeting which I have concluded was violative of Section 8(a)(1) of the
Act.

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Accordingly, the above evidence is more than sufficient to establish a strong link
between the discharge of Mercho and his union activities, and that General Counsel has made
a strong prima facie showing of discriminatory motivation. Since General Counsel had made
such a strong prima facie showing, Respondent’s burden of proof with respect to meeting its
Wright Line is substantial. Vemco Inc., 304 NLRB 911, 912 (1991); Eddy Leon Chocolate, 301
NLRB 887, 889 (1990).

I conclude that Respondent has fallen short of meeting its burden in this regard.

Respondent’s witnesses and its documents, advance three reasons for its discharge of
Mercho. They are unavailability for work, abusive language to dispatch, and falsely filing for
unemployment. I note initially that Respondent had failed to show that it ever discharged any
employees, for any of these three reasons. The failure of an employer to show that it has
treated employees in the past in a similar manner for engaging in similar misconduct to that of
the alleged discriminatee, has been held to be an important defect in the employer’s meeting its
Wright Line burden of proof. Grand Central Partnership, 327 NLRB 966, 974 (1999);
Woodlands Health supra, at 362; 10 Ellicott Square Corp., 320 NLRB 762, 775 (1996), enfd 104
F.3d 354 (2nd Cir. 1996); New Jersey Bell Telephone; 308 NLRB 277, 283 (1992). “Under
Wriight Line, an employer cannot carry its burden of persuasion by merely showing that it had a
legitimate reason for imposing discipline against an employee, but must show by a
preponderance of the evidence that the action would have taken place even without the
protected conduct.” Hicks Oil & Hicks Gas, 293 NLRB 84, 85 (1989).

Not only has Respondent failed to show that it has terminated employees for engaging in
any of the infractions which allegedly caused it to terminate Mercho, but its treatment of Mercho
differed substantialy from how it treated other employees, who engaged in similar or worse
conduct. Indeed, the evidence demonstrates that at least two of the grounds asserted,
unavailability for work and abusive or vulgar language are clearly pretextual. It is notable in that
regard that Respondent in its brief, makes no mention of these two grounds at all, thereby
implicitly abandoning these grounds as a basis for the discharge. Whether or not such an
omission in its brief constitutes an implicit abandonment of these grounds, or at least a
realization that these grounds are questionable, I concludes that these two alleged grounds
were clearly pretextual.

Thus the assertion that Respondent terminated Mercho for profanity toward a
supervisor, is based on Badalamenti’s testimony that he considered Mercho’s foul language
directed toward Segallini to be inappropriate.12 In that regard, Badalamenti conceded that
vulgarity is a regular practice in conversations involving drivers and dispatchers, and that
Respondent generally tolerates such behavior. He asserted that there may be a rule “on the
books” prohibiting vulgarity, but concedes that such a rule is not enforced.13

As noted above, Respondent introduced no evidence of employees terminated for
vulgarity or abusive language towards supervisors. To the contrary, Respondent’s files
revealed significant evidence of disparate treatment. Thus Harris Yakov received two one day
suspensions for abusive language in January of 2001, the second one of which revealed that he
called the dispatcher an “asshole and a son of a bitch”. Respondent’s files included a comment
12 Respondent’s termination report described the conduct as “abusive language toward
dispatcher.”
13 Respondent introduced no evidence of any rule “on the books”, prohibiting vulgarity or
profanity by drivers.

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card from the supervisor stating, referring to Yakov, “I will no longer take verbal abuse”. Finally,
Yakov’s file also included a comment card from Segallini, accusing Yakov of always making
snide remarks, for which Yakov received no discipline whatsoever. Yakov was not terminated,
despite this record, and resigned on March 20, 2001, but with a comment on his termination
report, not recommending rehire because he was, “very abusive with co-workers and bad
attitude.”

Thus the above evidence demonstrates that Respondent treated Yakov, who engaged in
much more serious misconduct than Mercho, more leniently, without any providing any
explanation or this glaring disparity in treatment. The transcript of the conversation between
Mercho and Segallini, shows that although Mercho used the words “bullshit” several times, in
regard to comments made by Segallini or to his alleged treatment by Segallini, with Mercho at
no time, directed any profanity towards Segallini personally. Contrast that with Yakov, who
called a dispatcher an “asshole” and a “son of a bitch”, and received only a one day suspension,
with a prior record of a previous one day suspension.

I also find it highly significant that Segallini the dispatcher to whom Mercho directed the
allegedly abusive and verbal remarks, did not appear to be bothered by them, nor did he appear
to consider such conduct inappropriate. Thus Segallini did not prepare a comment card about
the incident, as he did when he complained about Yakov “snide comments”, never complained
to Badalamenti about Mercho’s alleged “abusive or vulgar language”, and never even brought to
Badalamenti’s attention the conversation, until Badalamenti asked if Mercho was still working for
Respondent. The failure of Segallini to prepare a comment card, highlights another problem
with Respondent’s defense. It appears that Respondent uses a progressive disciplinary system,
providing employees with written warnings and suspension, and including comment cards by
supervisors, before discharging them.

The above evidence substantially detracts from the validity of Respondent’s defense,
and leads me to conclude, which I do that Respondent’s reliance on Mercho’s alleged vulgarity
and or abusive language was pretextual. Stoody Co., 312 NLRB 1175, 1183 (1993) (Failure to
adhere to normal disciplinary procedure); Marriott Corp., 310 NLRB 1152, 1159 (1993) (Failure
to follow usual pattern of progressive discipline and disparate treatment); Ferguson Williams
Inc., 322 NLRB 695, 703 704 (1995) (Vulgarity tolerated in the workplace, employees treated in
the past more leniently for more serious misconduct); Sonoma Mission Inn, 322 NLRB 898, 905
(1997) (Failure to follow normal practice and disparate treatment); Grand Central Parkway supra
at 975 (Failure to follow normal practice and disparate treatment); Woodlands supra at 363
(Treating other employees who engaged in similar or worse conduct more leniently).

Having found this alleged reason for the discharge to be pretextual, it follows that
Respondent had not shown that it would have terminated Mercho for this conduct, absent his
union activities.

Respondent’s second alleged reason for the discharge, his alleged unavailability for
work, compels a similar conclusion. As was the case with the alleged vulgarity or abusive
language, no one has been shown to have been terminated for such conduct, and the evidence
reveals that other employees engaging in similar conduct were treated more leniently, and
Respondent did not employ its normal, progressive disciplinary system.

Respondent’s files reveal that employee Keith Davis informed Respondent on two
different occasions that he would not be available to work first on Sundays, and then on
Saturdays. The issue was discussed with Respondent’s officials, who permitted Davis to refuse
to work on weekends, in part because it might be only a temporary situation. Significantly, no

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discipline whatsoever was imposed upon Davis for refusing to work on weekends and Davis
finally voluntarily resigned his employment after continuing to refuse to work weekends for 10 ½
months.

Badalamenti testified that the reference to unavailability for work in the termination letter,
referred to Mercho’s refusal to honor his schedule by failing to work on Sundays. However,
Respondent offered no testimony to explain why it tolerated Davis’s conduct of refusing to work
on weekends, without any discipline at all, and yet it discharged Mercho allegedly for that
conduct, without so much as a warning, or even the courtesy of discussing the issue with him,
before terminating him.

Similarly, employee David Cooke, according to Respondent’s files had not called in for
work for over four months. Yet, he was not disciplined, but was called into the office for an
explanation. He also had filed for unemployment insurance, although he had not been laid off.
However, he was not disciplined for any of this conduct, but instead terminated for “job
abandonment”, and lack of respect shown to supervisors during their meeting.

It is also significant that like the issue of alleged vulgarity or abusive language, it does
not appear that Segallini, the dispatcher was disturbed about the alleged unavailability for work
that Badalamenti asserts motivated him to discharge Mercho. Once again, Segallini did not file
a comment card about this conduct, did not complain about it to Badalamenti, and only brought
to his attention the tape, when Badalamenti asked if Mercho was still working there.
Accordingly, I conclude that Segallini was not disturbed about Mercho’s alleged unavailability, or
his refusal to work on Sundays. Indeed a close examination of the transcript reveals that
Mercho, although claiming that he had another job on Sunday, because he wasn’t getting
enough work from Respondent, told Segallini, that it was not a permanent situation and if
Respondent got busy, he would be available.

Accordingly, the disparate treatment accorded Mercho is striking and unexplained by
Respondent. Two other employees were permitted to be unavailable on weekends or generally,
and were not disciplined at all over a period of several months. Yet Mercho was discharged, for
a first offense, absent a complaint from the supervisor, without a warning, and where Mercho
indicated that his unavailability would be temporary, pending more frequent assignments by
Respondent on Sundays.

The failure to bring this matter to Mercho’s attention or even to ask him for an
explanation, is another substantial defect in Respondent’s defense. It is well established that
the failure to conduct an adequate investigation and the failure to afford the employee an
opportunity to explain or respond to allegations of misconduct are significant indications of
discriminatory intent and substantially undermines Employers’ Wright Line defenses. National
Association of Government Employees, 327 NLRB 676, 700-701 (1999); New Orleans Cold
Storage, 326 NLRB 1471, 1477 (1998); Washington Nursing Home, 321 NLRB 366, 375 (1996);
Grand Central supra at 976. Such conduct by the Employer shows that it was not truly
interested in determining whether misconduct had actually occurred. Handicabs Inc., 318 NLRB
890, 897 (1995); enfd. 95 F.3d 681, 685 (8th Cir. 1996); Clinton Foods 4 Less, 288 NLRB 597,
598 (1988); Grand Central supra.

Here, Badalamenti terminated Mercho, allegedly because of his assertion on the tape
that he no longer would be available on Sundays. However, he never discussed the issue with
Mercho, never expressed any dissatisfaction with Mercho’s decision, never told him that his job
could be in jeopardy because of it, and never asked him if the decision was temporary. This
conduct of Badalamenti is simply inexplicable, particularly where as I have observed above, the

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tape itself indicated that Mercho’s alleged unavailability on Sunday would be temporary and
would end, if Respondent provided him more frequent and or more lucrative assignments on
Sundays. Indeed, had Badalamenti called Mercho into his office for an explanation Mercho
would have informed him, that contrary to what Mercho had told Segallini, Mercho did not have
another job on Sundays.

The failure of Badalamenti to speak to Mercho about the issue is even more damaging,
in light of the fact, as detailed above, that when Respondent had a problem with the availability
of employee Cooke, he was called into the office to explain why he had not called in for work,
for over four months. Similarly, when Davis told Respondent of his weekend unavailability, the
matter was discussed with Davis, and Respondent agreed to a weekday schedule with a
statement that the issue would be revisited in a couple of months. In fact Respondent never
revisited the issued, and permitted Davis to continue not working on weekends, until he quit
over 10 months later.

The above facts demonstrate that Respondent was not interested in finding out about
Mercho’s availability, and that Badalamenti did not truly consider his alleged unavailability as a
grounds for discharge. Instead, I conclude that Badalamenti simply seized upon Mercho’s
statement on the tape about his job on Sunday, as a pretext to justify his decision to terminate
Mercho, because of his union activities. Therefore, once again Respondent has failed to meet
its Wright Line burden of proof, that it would have terminated Mercho absent his protected
conduct.

I now turn to the final reason asserted by Respondent, Mercho’s conduct of filing a false
unemployment claim. This does appear to be the primary reason that Respondent contends
motivated its decision, particularly since Respondent’s brief relied solely on this reason,
conveniently ignoring the other reasons asserted at trial. It is of course no surprise that
Respondent chose to rely on the latter reason, since it is on the surface the strongest, and was
not difficult to discern that I would conclude, as I have, that the other two reasons asserted by
Badalamenti and in Respondent’s documents, were pretextual. Nonetheless, the fact that
Respondent did raise these two pretextual grounds for discharging Mercho, in Badalamenti’s
testimony, and in Respondent’s termination report, tends to shed light on and diminish the
validity of its other, somewhat more substantial defense.

Nonetheless, and even apart from the pretextual nature of the other two grounds
asserted, I conclude that Respondent has failed to meet its burden of proof, that it would have
terminated Mercho, absent his union activities, or put another way, solely for his conduct in filing
a false unemployment claim. In some circumstances, I would conclude that the filing of a false
unemployment claim would be a sufficiently compelling reason to terminate an employee, and
that the Wright Line burden of proof would be met. However, the issue is not whether I or the
Board consider this conduct sufficiently serious to justify discharge, but whether this
Respondent so believed, and whether Respondent would have terminated Mercho because of
such misconduct, even though it was partially motivated by his union activities and the union
meeting scheduled to be held shortly before his discharge.

The problems with Respondent meeting its burden proof with respect to this ground are
similar to some of the reasons that I have found the other two reasons pretextual. Once again,
Respondent’s treatment of prior employees who engaged in similar conduct, its failure to
conduct an investigation of Mercho’s alleged false filing, and the failure to afford Mercho the
opportunity to explain his conduct, severely damages Respondent’s defense and its attempt to
meet its Wright Line burden of proof.

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As related above, when it discovered that David Cooke had filed for unemployment,
although he was not even temporarily laid off, Cooke was called into the office to explain his
conduct. Although Cooke’s only explanation was that “he did not remember”, Cooke received
no discipline for this conduct. While he was terminated, the discharge was for job abandonment
and his conduct at the meeting with supervisors, and not because of his filing for unemployment
when he had not been laid off. Thus this evidence reveals significant evidence of disparate
treatment, since Cooke received no discipline for engaging in similar misconduct. Moreover, in
contrast to Mercho, Cooke was given the opportunity to explain his conduct. Further,
Respondent failed to contact the Department of Labor or to conduct any investigation to
determine if in fact, Mercho had intentionally filed a false claim. It may be that Mercho, if
provided the chance would have said, as he testified here, that he believed that he was merely
filing for partial unemployment, as he did after September 11, when he and others collected,
wile receiving reduced work assignments from Respondent. Whether Respondent would have
accepted that explanation, or whether that explanation was accurate is besides the point.

What is significant, is that Respondent seized on the opportunity to get rid of a known
union adherent, right before a union meeting that it was aware of without even attempting to
ascertain whether Mercho had in fact intentionally filed a false or fraudulent claim.14

Furthermore, Badalamenti’s testimony that another related reason for Respondent’s
decision, that Mercho’s case was similar to the prior case involving employee Barry Debowsky,
was not convincing. In that regard Badalamenti testified that the cases were similar, and that
his attorney Martin Goldman allegedly told Badalamenti that Mercho should be fired, because
the cases were parallel. However, a close examination of the two cases reveal significant
differences between them, and no explanation by Respondent why Debowsky’s case either
required or even suggested Mercho should be terminated as well. Although Debowsky had filed
an unemployment claim, while still employed by Respondent, the similarities in the two cases
ended there. In Debowsky’s case, unlike Mercho, Respondent contested the unemployment
claim,. and took the position that Debowsky had not been laid off, but had abandoned his job.
Respondent here never contested Mercho’s unemployment claim, even after it discharged him.
Indeed, Respondent provided no explanation why it could not have simply contested Mercho’s
claim, as it did Debowsky’s, rather than firing him. Therefore, Debowsky’s case, rather than
supporting Respondent’s decision vis a vis Mercho, instead provides further evidence of
disparate treatment. It also shows that Respondent cared very little about Mercho filing a false
or fraudulent claim for unemployment, for if it did, it certainly would have contested his claim,
and notified the Department of Labor that Mercho had not been laid off on April 1, as his form
indicated.

Furthermore, Badalamenti’s testimony that both he and his attorney felt that the cases of
Mercho and Debowsky were so similar that Respondent must or should terminate Mercho,
makes little sense, and was not explained or explicated by Respondent. As note above,
Respondent has not taken consistent positions in these cases, since it did not terminate
Debowsky, but merely contested his unemployment, claiming that he had abandoned his job.
Since that proceeding was over, and Respondent was not successful in its position in that
respect, it is hard to understand why Respondent might have believed that it was necessary to
terminate Mercho, to maintain some possibly consistent position. While there was and still is a
14 It is of course true that Mercho did not report his April earnings to the Department of
Labor, until after the trial commenced, which tends to cast doubt on Mercho’s testimony on this
issue. However, Respondent was not aware of this fact at the time of discharge, so it had no
bearing on the lawfulness of the termination.

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lawsuit pending against Respondent by Debowsky, concerning alleged back wages,
Respondent provided no explanation or testimony, as to how that unrelated case could be
impacted by Respondent’s treatment of Mercho.

This defect in Respondent’s defense is more glaring, by the fact that it failed to call
Goldman as a witness, to corroborate Badalamenti’s testimony, and or to explain the alleged
connection between the two cases and the discharge decision. After all, according to
Badalamenti, Goldman allegedly told him, after listening to the tape, “you probably gotta let him
go. It’s too much like Debowsky”. The failure of Respondent to call Goldman to explain why he
would make such a statement, substantially undermines Badalamenti’s testimony and
Respondent’s defense. Thus “where a party fails to call a witness who may reasonably be
assumed to be favorably disposed to the party, an adverse inference may be drawn regarding
any factual question on which the witness is likely to have knowledge”. International Automated
Machines, 285 NLRB 1122, 1123 (1987). In these circumstances, since Goldman is clearly a
witness favorably disposed to Respondent, and has knowledge of significant facts, it is
appropriate to draw an inference that his testimony would not have corroborated Badalamenti.
United Parcel Service, 321 NLRB 300 fn. 1 (1996); Ready Mix Concrete, 317 NLRB 1140, 1143
fn. 16 (1995); Basin Frozen Foods; 307 NLRB 1406, 1417 (1992).

Accordingly, based on the foregoing analysis and authorities, I conclude that
Respondent failed to establish that it would have terminated, Mercho, absent his protected,
union activities. Therefore, Respondent has violated Section 8(a)(1) and (3) of the Act.

CONCLUSIONS OF LAW

(1) Respondent, Music Express East Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.

(2) International Brotherhood of Teamsters, Local 805, AFL-CIO, (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.

(3) The Music Express Chauffeurs Committee (Chauffeurs Committee) is a labor
organization within the meaning of Section 2(5) of the Act.

(4) By coercively interrogating its employees concerning their activities on behalf of the
Union, soliciting grievances with an implied promise of benefit, promising and granting its
employees benefits in order to discourage them from supporting the Union, and creating the
impression that their union activities were under surveillance, Respondent has violated Section
8(a)(1) of the Act.,

(5) By dominating and interfering with the formation and administration of, and rending
unlawful assistance and support to the Chauffeurs Committee, Respondent has violated Section
8(a)(1) and (2) of the Act.

(6) By terminating the employment of its employee Emad Mercho, because of his
activities on behalf of and in support of the Union, Respondent had violated Section 8(a)(1) and
(3) of the Act.

(7) By interfering with restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent had violated Section 8(a)(1) of the Act.

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(8) Respondent has not violated the Act in any other manner alleged in the complaint.

(9) The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.

THE REMEDY

Having found that Respondent has violated Section 8(a)(1) (2) and (3) of the Act, I shall
recommend that it cease and desist there from, and take certain affirmative action.

I shall recommend that Respondent withdraw all recognition from and disestablish the
Chauffeurs Committee, and refrain from recognizing it, or any successor thereto, as a
representative of any of its employees for the purpose of dealing with Respondent concerning
wages, grievances, rates of pay or other conditions of employment.

The normal remedy for the unlawful discharge of Mercho, would be back pay and
reinstatement. However, Respondent argues that Mercho back pay should be tolled and
reinstatement denied, because of the “after acquired evidence”, that it uncovered during the
course of the instant hearing, which established that Mercho engaged in “insurance fraud.”

In that regard, Respondent relies on the testimony of Department of Labor
representative Smith, and the documents submitted, which establish that Mercho’s filed for
unemployment while listing his last date worked for Respondent on April 1, and that Mercho did
not report his April earnings with Respondent to the Department of Labor, until after learning
during the instant trial, that Respondent had uncovered evidence of his having collected full
benefits for this period of time.

Based on the above evidence, Respondent asserts that it has established that
Respondent would have terminated Mercho in any event, based on its knowledge of this “after
acquired evidence” on September 9, and that his back pay should be tolled and reinstatement
denied as of that date. I do not agree.

The main problem with Respondent’s assertion, is its total failure to adduce any
testimony or other evidence that this “after acquired evidence” would have had any impact on its
decision. Thus while Badalamenti testified at length about Respondent’s decision and his
discussion with his attorney, he made no mention of the “after acquired evidence”, even though
such evidence had recently come to Respondent’s attention. In the absence of such testimony,
or any other evidence, that could establish that Respondent would have terminated Mercho if it
had known of this evidence, Respondent’s contention must be dismissed, and normal
reinstatement and back pay remedies be ordered.

Moreover, the evidence in the record, even apart from this crucial omission in
Respondent’s evidence, indicates to the contrary, that even had it known about the alleged
fraud, it still has not shown it would have discharged Mercho.

Thus the alleged new evidence is not substantially different from what Respondent knew
or at lease suspected prior to the discharge. Respondent knew , or at least believed, that
Mercho had filed for unemployment, while still employed by Respondent. Thus the “new
evidence” only confirmed that fact, plus establishing that Mercho in fact received benefits for a
period of time while he was still employed by Respondent. However, Respondent could have
assumed that Mercho intended to collect, when he filed, so the new evidence is not all that
significant. More importantly, the evidence discloses that Respondent cared little about any

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alleged “insurance fraud”, since it did not discharge two other employees for this conduct 15
Further, it never even bothered to contest Mercho’s “fraudulent” claim, or otherwise notify the
Department of Labor that Mercho had filed a false claim.

In these circumstances Respondent had fallen far short of establishing that it would have
terminated Mercho, if it had known about the alleged “fraud”, and I shall order him reinstated,
with back pay. Back pay shall be computed with interest in the manner prescribed in F.W.
Woolworth Co., 90 NLRB 289 (195)) and New Horizons for the Retarded, 283 NLRB 1173
(1987).

Based upon the foregoing findings of fact and conclusions of law and the entire record, I
make the following recommended:16

ORDER

The Respondent, Music Express East Inc., Elmwood Park, New Jersey, its officers,
agents, representatives and assigns shall

1. Cease and desist from

(a) Coercively interrogating its employees concerning their activities on behalf of or
support for International Brotherhood of Teamsters Local 805 (AFL-CIO) (the Union).

(b) Soliciting grievances from employees and implying that such grievances will be
adjusted in order to discourage employees from supporting the Union.

(c) Promising and granting its employees restoration of one hours preparation pay,
increased supervision by management of dispatchers conduct towards employees, and other
benefits and improvements in their terms and conditions of employment, in order to discourage
its employees form supporting the Union.

(d) Creating the impression amongst its employees, that their activities on behalf of
the Union were under surveillance.

(e) Forming, dominating administering or contributing support to the Music Express
Chauffeurs Committee (the Chauffeurs Committee) or any other labor organization.

(f) Telling employees that it intends to form such labor organization or suggesting or
encouraging employees to form, participate in or cooperate with the Chauffeurs Committee
concerning terms and conditions of employment.

(g) Discharging and thereafter refusing to reinstate its employees because of their
activities on behalf of or support for the Union.
15 Debowsky, whose unemployment it contested, and Cooke, who was fired for other
reasons.
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.

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(h) In any like or related manner interfering with, restraining 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) Immediately withdraw all recognition from and completely disestablish the
Chauffeurs Committee and refrain from recognizing the Chauffeurs Committee, or any
successor thereof as representative of its employees or the purposes of dealing with
Respondent concerning wages, grievances, rates of pay or other conditions of employment.

(b) Within 14 days from the date of this Order, offer Emad Mercho immediate and full
reinstatement to his former job or, if the job no longer exists, to a substantially equivalent
position without prejudice to his seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in the remedy section of this Decision.

(c) Within 14 days from the date of this Order remove from its files any reference to
the discharge of Emad Mercho and within 3 days thereafter notify him in writing that this has
been done and that evidence of the discharge will not be used as a basis for any future action
against him.

(d) Preserve and, within 14 days of a request make available to the Board or its
agents for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records including an electronic copy of
such records if stored in electronic form, necessary to analyze the amount of back pay due
under the terms of this Order.

(e) Within 14 days after service by the Region, post at it Elmwood Park, New Jersey
facility, copies of the attached notice marked “Appendix.” 17 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representatives, shall be posted by Respondent and maintained by it for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out of business or closed the facility
involved in this proceeding, Respondent shall duplicate and mail, at their own expense, a copy
of the notice to all current employees and former employees employed by Respondent as any
time since April 17, 2002.

17 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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(f) Within 21 days after service by the Region file with the Regional Director a sworn
certification of responsible official on a form provided by the region attesting to the steps that the
Respondent has taken to comply.

(g) IT IS FURTHER ORDERED that all violations alleged in the complaint but not
found are dismissed.

Dated, Washington, D.C.

_____________________
Steven Fish
Administrative Law Judge

JD(NY)-22-03
Elmwood Park, NJ
APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT coercively interrogate our employees concerning their activities on behalf of or
support for International Brotherhood of Teamsters, Local 805 (AFL-CIO) (the Union),

WE WILL NOT solicit grievances from our employees and imply that such grievances will be
adjusted in order to discourage employees from supporting the Union.

WE WILL NOT promise or grant our employees restoration of one hours preparation pay,
increased supervision by us of dispatchers conduct towards employees, or other benefits and
improvement in their terms and conditions of employment, in order to discourage our employees
from supporting the Union.

WE WILL NOT create the impression amongst our employees, that their activities on behalf of
the Union are under surveillance by us.

WE WILL NOT form, dominate, administer or contribute support to the Music Express
Chauffeurs Committee (the Chauffeurs Committee) or any other labor organization.

WE WILL NOT tell our employees that we intend to form such labor organization or suggest or
encourage our employees to form, participate in or cooperate with the Chauffeurs Committee
concerning terms and conditions of employment.

WE WILL NOT discharge and thereafter refuse to reinstate our employees because of their
activities on behalf of or support for the Union.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees, in
the exercise of their rights under Section 7 of the Act.

WE WILL immediately withdraw all recognition from and completely disestablish the Chauffeurs
Committee and refrain from recognizing the Chauffeurs Committee, or any successor thereof as
representative of our employees for the purposes of dealing with us concerning wages,
grievances, rates of pay or other conditions of employment.

JD(NY)-22-03
Elmwood Park, NJ
WE WILL within 14 days from the date of the Board’s Order offer Emad Mercho immediate and
full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent
position without prejudice to his seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other benefits suffered as a result of the
discrimination against him, plus interest.

WE WILL within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge Emad Mercho, and with 3 days thereafter notify him in writing that this has
been done and that the discharge will not be used against him in any way.

MUSIC EXPRESS EAST INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor, Newark, NJ 07102-3110
(973) 645-2100, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (973) 645-3784.