Music Express East, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1063 (N.L.R.B. 2003)

MUSIC EXPRESS EAST, INC. 1063
Music Express East, Inc. and International Brother-
hood of Teamsters Local 805, AFL–CIO. Case
22–CA–25174
November 28, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER
AND WALSH
On May 14, 2003, Administrative Law Judge Steven
Fish issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and to
adopt the recommended Order as modified.
Contrary to the judge, we dismiss the allegation that
the Respondent violated Section 8(a)(3) and (1) of the
Act by terminating employee Emad Mercho. Unlike the
judge, we find that the General Counsel failed to satisfy
his burden under Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
415 U.S. 989 (1982), approved in Transportation Man-
agement, Inc. v. NLRB, 462 U.S. 393 (1983), of estab-
lishing that the Respondent discharged Mercho because
of his union activities. Specifically, we find that the
General Counsel failed to establish that the Respondent’s
officer who decided to discharge Mercho, General Man-
ager Richard Badalamenti, knew that Mercho had en-
gaged in union activities or supported the Union.
Here, there is no direct evidence that Badalamenti had
knowledge of Mercho’s union activities. In the absence
of direct evidence, the Board examines all the circum-
stances to determine whether the employer’s knowledge
of the employee’s union activities can be inferred. See
D&F Industries, 339 NLRB 618, 622(2003); see also
Abbey’s Transportation Services v. NLRB, 837 F.2d 575,
579 (2d Cir. 1988). Upon consideration of all the cir-
cumstances here, we find that such an inference is not
warranted.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Contrary to our dissenting colleague’s assertion, the judge did not
discredit Badalamenti’s testimony that Isaac Williams did not tell him
The evidence regarding Mercho’s conduct during the
union organizing drive fails to reveal overt signs of sup-
port for the Union. Indeed, Mercho’s conduct arguably
reflected just the opposite. Mercho was one of the first
two drivers to volunteer for the Respondent’s chauffeurs
committee, which committee the Respondent proposed
and created as a means of drawing support away from the
Union. The Respondent—specifically Badalamenti—
knew that Mercho supported the committee because
Mercho signed a publicly displayed list of employees
willing to stand for election to the committee.
Conversely, Mercho’s conduct in support of the Union
was extremely limited. He did not attend a single union
meeting prior to his discharge. He did not solicit union
authorization cards. Nor did he serve on the Union’s
organizing committee. His only acts in support of the
Union were to sign a union authorization card—out of
the view of any management official,3 and to tell Train-
ing Manager Williams that he had done so.
Nor do we find that Mercho’s comments to Williams
warrant an inference that Badalamenti knew that Mercho
supported the Union. Mercho testified that he informed
fellow driver and low-level, part-time Supervisor Wil-
liams that he had signed a card. Mercho testified that
Williams’ response was to express support for the Union,
or at least an intent to keep an open mind regarding the
Union. Indeed, consistent with his response, Williams
attempted to attend the Union’s May 4 meeting for unit
employees. In these particular circumstances, we are
unwilling to infer that Williams would have informed
Badalamenti that Mercho had signed a union card. See
Efficient Medical Transport, 324 NLRB 553 fn. 1
(1997). Further, with one exception, there is no showing
that Williams discussed union matters with Badalamenti.
The record includes evidence of only one conversation
between Williams and Badalamenti in which the Union
was raised. In that conversation, Williams testified that
he informed Badalamenti that he (Williams) had at-
tempted to attend the May 4 union meeting. This con-
versation occurred several days after Badalamenti dis-
charged Mercho.
Contrary to the assertion of our dissenting colleague,
this conversation, after the discharge, is not the sole basis
for our conclusion that Williams did not tell Badala-
menti, before the discharge, of Mercho’s union activities.

about Mercho’s union activities. The judge imputed Williams’ knowl-
edge to Badalamenti, and he speculated that Williams had told Badala-
menti about Mercho’s activities.
3 Mercho signed his union authorization card in a brief late night
meeting with a member of the union organizing committee in the Re-
spondent’s parking lot. The judge specifically found that there is no
evidence that the Respondent had observed this encounter.
340 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
Rather, we rely on the fact that there was only one con-
versation between Williams and Badalamenti regarding
this matter and it occurred after the discharge.
Finally, the context and content of Badalamenti’s con-
versation with Williams undercuts any inference that
Williams would have shared his knowledge about Mer-
cho’s union support with Badalamenti. First, the judge
specifically found that Williams did not inform Badala-
menti ahead of time that he was going to attend the union
meeting, thereby suggesting that he did not regularly
consult Badalamenti about the Union. In the one conver-
sation they had after the union meeting, the record does
not show that Williams named any employees who he
saw at the meeting or that Badalamenti made any such
inquiries.4 Thus, contrary to our dissenting colleague,
there is ample affirmative evidence—beyond the context
of Williams’ conversation with Badalamenti—to support
the inference that Williams did not inform Badalamenti
of Mercho’s union activities. Indeed, as discussed
above, the content of the conversation is equally telling.
Our colleague asserts that there are only two excep-
tions to the “rule” that a supervisor’s knowledge will be
attributed to the employer. We do not agree that the
Board cases finding exceptions to the aforesaid general
rule represent the sum total of those circumstances under
which a supervisor’s knowledge will not be imputed to
his employer. Having said that, one exception our col-
league identifies occurs when the supervisor is a “pro-
moter” of the union. We agree that it is unreasonable to
infer that a supervisor “promoter” of the union would tell
upper management of the union activity of other union-
ists. That is the essential holding in Efficient Medical
Transport, 324 NLRB at 553 fn. 1, cited by our col-
league. However, it is a classic non sequitur to hold that
a “prounion” supervisor (somewhat less than a “pro-
moter”) would tell upper management of the union activ-
ity of other unionists while a promoter would not.
Rather, absent evidence to the contrary, common sense
suggests that the prounion person would similarly not
tattle. See Vulcan Basement Waterproofing of Illinois,
Inc. v. NLRB, 219 F.3d 677, 685–687 (7th Cir. 2000).
Thus, even if our dissenting colleague is correct that Wil-
liams was not a union promoter, but was only a union
supporter, we still would find it inappropriate to impute

4 The judge speculated that, although the Respondent did not
threaten or retaliate against any open union supporter, Badalamenti did
so against Mercho because he was upset by Mercho’s union support
when he had previously supported the Respondent’s chauffeurs com-
mittee. The judge concluded that Badalamenti “likely viewed Mercho
as someone trying to ‘play both sides of the fence.’” This conclusion
has no record support. Thus, the record contains no evidence that
Badalamenti expressed such a view to anyone about Mercho or any
other employee.
Williams’ knowledge of Mercho’s union activities to
Badalamenti.5
The other exception identified by our colleague applies
here. For, as noted above, the evidence affirmatively
supports the proposition that Williams did not pass on to
Badalamenti the fact that Mercho was prounion.
In light of the lack of any direct evidence that Badala-
menti knew of Mercho’s union activities, we have exam-
ined the other circumstances of Mercho’s discharge to
determine whether they would support such an inference.
We find that they would not. For example, the timing of
Mercho’s discharge is not so suspicious as to support an
inference of Badalamenti’s knowledge. Although
Badalamenti did commit a violation of Section 8(a)(1) on
the same day he informed Mercho of his discharge, the
violation was not directed at Mercho, nor did it relate to
conduct by him.6 Further, Badalamenti testified that he
had made the decision to discharge Mercho days earlier,
when he learned that: Mercho had filed a false unem-
ployment claim; Mercho had told a dispatcher that he
had taken another job that could conflict with his driving
responsibilities; and Mercho had had a heated dispute
with a dispatcher in which he used abusive language.
Under these circumstances, we find that the timing of
Mercho’s discharge is too weak a foundation upon which
to base an inference regarding knowledge.
Nor do we find that the judge’s findings regarding the
Respondent’s union animus support an inference of
knowledge. The judge relied primarily on the Respon-
dent’s commission of other unfair labor practices to sup-
port his finding that the Respondent harbored animus
against the Union. Although we adopt the judge’s find-
ings regarding those violations, we note that none of the
violations were directed at Mercho, or involved threats of
negative consequences resulting from employee support
for the Union. Indeed, apart from the allegation regarding
Mercho, there are no allegations or findings that the Re-
spondent took any adverse actions against those employ-
ees who—actively or otherwise—supported the Union.
Accordingly, based on the foregoing, and the particular
circumstances of this case, we find that an inference can-
not reasonably be drawn either that Williams told
Badalamenti that Mercho supported the Union or that
Badalamenti gained knowledge of Mercho’s union activi-
ties from another source. In the absence of evidence of
5 Our dissenting colleague disputes whether Williams expressed
support for the Union. As discussed above, the record clearly shows
that he did when he told Mercho that the Union was “a good idea.”
6 The Board has adopted the judge’s finding that on May 1, Badala-
menti created the impression that he was surveilling union activities
when he told employee Richter that he knew the next union meeting
was scheduled for May 4.
MUSIC EXPRESS EAST, INC. 1065
such knowledge, we find that the General Counsel did not
meet his initial Wright Line burden. Accordingly, we
dismiss the complaint insofar as it alleges that the Re-
spondent discharged Mercho in violation of Section
8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Music
Express East, Inc., Elmwood Park, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.
1. Delete paragraph 1(g) and reletter the subsequent
paragraph.
2. Delete paragraphs 2(b)–(d) and reletter the subse-
quent paragraph.
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER WALSH, dissenting in part.
Reversing the administrative law judge, my colleagues
dismiss the complaint allegation that the Respondent
discriminatorily discharged employee Emad Mercho in
violation of Section 8(a)(3) and (1) of the Act. Specifi-
cally, my colleagues conclude that the General Counsel
failed to establish the Respondent’s knowledge of Mer-
cho’s union activities. Contrary to my colleagues, I
agree with the judge that the General Counsel presented
“compelling evidence”—both direct and circumstan-
tial—that the Respondent knew that Mercho was a union
adherent.1
Direct Evidence of Knowledge
On April 23, 2002, during the course of the organiza-
tional campaign, Mercho signed a union authorization
card.2 The next day, as Mercho was coming into work,
he encountered Supervisor Isaac Williams.3 Mercho
explained to Williams that the employees needed to sup-
port the Union to give them some power to address the
problems caused by the Respondent. Mercho revealed
that he had signed a card for the Union and asked Wil-
liams if he would be interested in signing one. Williams
replied that the Union was a good idea, but that he
wanted to think about it.
As the judge correctly recognized, information ac-
quired by a supervisor with respect to the specific em-
ployees involved in a union campaign is ordinarily im-
1 In all other respects, I agree with my colleagues’ decision.
2 All subsequent dates are in 2002.
3 Williams worked part time as the training manager and part time as
a driver. The Respondent admitted in its answer that Williams was a
supervisor and an agent of the Respondent within the meaning of the
Act.
putable to the employer as a matter of law. E.g., Wood-
lands Health Center, 325 NLRB 351, 361 (1998); Ready
Mix Concrete Co., 317 NLRB 1140, 1143–1144 (1995),
enfd. 81 F.3d 1546, 1552 (10th Cir. 1996). There are
two narrow exceptions to this general rule: (1) “when it
has been affirmatively established as a matter of fact that
a supervisor who learned of union activities did not pass
on the information to others”;4 and (2) when a supervisor
is “a promoter of the Union.”5
Although Williams may be, as my colleagues contend,
a “low-level, part-time supervisor,” he nevertheless re-
mains a supervisor within the meaning of the Act. His
knowledge of Mercho’s union activities is therefore im-
putable to the Respondent unless an exception applies.
With respect to the first exception, the record does not
“affirmatively establish” a basis for not imputing Wil-
liams’ knowledge to the Respondent. Significantly, the
judge did not credit the relevant testimony of the Re-
spondent’s witnesses. Rather, the judge expressly dis-
credited Williams’ testimony on the knowledge issue,6
and the judge implicitly discredited General Manager
Richard Badalamenti’s denial that he knew about Mer-
cho’s union activity.7 Thus, this is not a case such as Dr.
Phillip Megdal, supra, where the judge credited the tes-
timony of the supervisors that their knowledge of an em-
ployee’s union activities was not divulged to upper man-
agement. Here, the “affirmative” evidence relied on by
the majority consists essentially of the fact that Williams
had a conversation with Badalamenti about the Union
after Mercho’s discharge. Based on the fact that Wil-
liams did discuss the Union with Badalamenti after Mer-
cho’s discharge, the majority leaps to the conclusion that
Williams did not discuss the Union with Badalamenti
before Mercho’s discharge. This is not a reasonable in-
ference; it is sheer speculation falling far short of the
required evidentiary showing.
My colleagues also attempt to shoehorn the facts of
this case into the second exception, but the record, fairly
considered as a whole, does not establish that Williams
was a “promoter” of the Union. When Mercho solicited
Williams to sign a card, he declined, stating that the Un-
ion was a good idea, but he needed to think about it.
About 10 days later, Williams attempted to attend a un-
ion meeting.8 These facts suggested to the judge, as they
do to me, that while Williams “did have an interest in the
Union,” he “wished to find out more about” it. In other
words, these facts simply do not add up to a supervisory
4 Dr. Philip Megdal, D.D.S., Inc., 267 NLRB 82 (1983).
5 Efficient Medical Transport, 324 NLRB 553 fn. 1 (1997).
6 See fn. 7 of the judge’s decision.
7 See sec. III,A,(6), par. 3 of the judge’s decision.
8 Williams was refused entrance because of his supervisory status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
“promoter” of the Union who would likely withhold
from his employer information about the organizational
campaign.9 To the contrary, Williams admitted that he
reported his own effort to attend the union meeting to
General Manager Richard Badalamenti. Therefore, this
case does not fall within the “union promoter” exception
and Williams’ knowledge of Mercho’s prounion sympa-
thies is properly attributable to the Respondent.
Apparently recognizing the weakness of their position,
my colleagues attempt to expand this exception to en-
compass not only union “promoters,” but also union
“supporters.” There are two flaws (one legal and one
factual) with this effort.
First, it is not supported by Board law. Indeed, the
case cited by the majority denied enforcement of a Board
decision.
Second, as discussed above, the record shows that Wil-
liams wanted to think about the Union and learn more
about it before signing an authorization card. That
hardly qualifies him as a union supporter.
Circumstantial Evidence of Knowledge
As my colleagues acknowledge, even without direct
evidence, “the element of knowledge may be shown by
circumstantial evidence from which a reasonable infer-
ence may be drawn.” Abbey’s Transportation Services v.
NLRB, 837 F.2d 575, 579 (2d Cir. 1988). “Such circum-
stances may include the employer’s demonstrated
knowledge of general union activities, the employer’s
demonstrated union animus, the timing of the discipline
or discharge, and pretextual reasons for the discipline or
discharge asserted by the employer.” D&F Industries,
Inc., 339 NLRB 618, 622 (2003). Disparate treatment is
another relevant circumstance. Montgomery Ward &
Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448
(4th Cir. 1996). Here, all of these factors support the
inference that the Respondent knew of Mercho’s union
activities.
(1) Knowledge of general union activities.
It is undisputed that the Respondent knew of the Un-
ion’s organizational campaign. Indeed, as discussed
more fully below, by the time of Mercho’s discharge on
May 1, the Respondent's unlawful response to that cam-
paign was already well underway.
(2) Animus
There can be no doubt that the Respondent expressed
strong animus toward the union activities of its employ-
ees:

9 The facts of the instant case are distinguishable from those of Effi-
cient Medical where the supervisor in question “actively support[ed]
the Union.” 324 NLRB at 556 fn. 11.
• On April 18, within days of learning of the or-
ganizational campaign, the Respondent con-
ducted a mandatory meeting at which it told
employees that “outside sources would be
catastrophic to the company and its employ-
ees.”
• At the same April 18 meeting, the Respondent
violated Section 8(a)(1) by soliciting griev-
ances from employees with an implied prom-
ise to resolve them.
• At a subsequent meeting on April 24, the Re-
spondent violated Section 8(a)(1) by promis-
ing and granting benefits to employees in or-
der to discourage them from supporting the
Union. The Respondent stated that it did not
understand why the employees still wanted a
union since the Respondent was following up
on last week's meeting and had some results
for the employees.
• On May 1, the Respondent violated Section
8(a)(1) by creating the impression among its
employees that their union activities were un-
der surveillance.
• On May 1, the Respondent accused a leading
union adherent of being inconsiderate and
hurting the Company by continuing to push for
the Union.
• In what the judge correctly termed “blatant
violations” of Section 8(a)(2) and (1), the Re-
spondent dominated the “Music Express
Chauffeurs Committee” in an attempt to un-
dermine employee support for the Union.
(3) Timing
The discharge of Mercho occurred within a week of
his disclosure of his prounion sympathies to supervisor
Williams, and a few days before the scheduled union
meeting of May 4, of which the Respondent was aware.
As stated by the judge, such “astonishing timing” further
supports the inference of knowledge.
(4) Pretextual reasons and disparate treatment
Of the three reasons the Respondent advanced for its
discharge of Mercho, the judge found that “at least two”
(unavailability for work and abusive language) are
“clearly pretextual.” With respect to the third reason (fil-
ing a false unemployment claim), the judge found sig-
nificant evidence of disparate treatment because the Re-
spondent did not discharge two other employees for fil-
ing unemployment claims that the Respondent regarded
as false. The record supports the judge’s findings. Thus,
the Respondent’s raising of pretextual grounds for dis-
charging Mercho and its treatment of him differently
MUSIC EXPRESS EAST, INC. 1067
from other employees who engaged in similar conduct
further supports the inference of knowledge.
Conclusion
In sum, as the judge found, the evidence adduced by
the General Counsel is “more than sufficient to establish”
that the Respondent knew of Mercho’s union activities
and that its antiunion animus was a motivating factor in
its decision to discharge him. The Respondent, however,
has “fallen short” of showing that it would have dis-
charged Mercho even in the absence of his union activi-
ties. Therefore, the judge’s conclusion that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by dis-
charging Mercho should be affirmed.

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 bene-
fit 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).
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 resto-
ration of 1-hour preparation pay, increased supervision
by us of dispatchers’ conduct towards employees, or
other benefits and improvement in their terms and condi-
tions of employment, in order to discourage our employ-
ees 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 con-
tribute support to the Music Express Chauffeurs Com-
mittee (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 in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you 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 em-
ployees for the purposes of dealing with us concerning
wages, grievances, rates of pay, or other conditions of
employment.

MUSIC EXPRESS EAST, INC.

Jeffrey Gardner, Esq. and Brian Caulfield, Esq., for the Gen-
eral Counsel.
Don T. Carmody, Esq., of Woodstock, New York, for the Re-
spondent.
David Tykylsker, Esq., of Montclair, New Jersey, for the Charg-
ing 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 (the Charging Party or Union), the
Director for Region 22 issued a complaint and notice of hearing
on June 28, 2002,1 alleging that Music Express East, Inc. (Re-
spondent) violated Section 8(a)(1), (2), and (3) of the Act.
The trial with respect to the allegations in the above com-
plaint was held before me in Newark, New Jersey, on Septem-
ber 3, 4, 5, and 24. Briefs have been filed by the 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 busi-
ness in Elmwood Park, New Jersey, where it is engaged in the
business of providing transportation, namely limousine and car
services. During the preceding 12 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 $5000 directly from points outside the State of New
Jersey.
Respondent admits, and I so find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.

1 All dates hereinafter are in 2002, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
It is admitted, and I so find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. FACTS
A. Respondent’s Operations
Respondent is a limousine company specializing in provid-
ing 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 man-
ager of Respondent, and is stationed at its Elmwood Park facil-
ity.
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.
Barbara 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 Respon-
dent instituted several changes which angered its drivers, in-
cluding the reduction of paid preparation time from 2 hours to 1
and a wage freeze. In December 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 exist-
ing drivers. Berkman could not give Richter much time in
December 2001, but promised to meet with him in February
2002, when she planned to be at the New Jersey facility.
Berkman met with Richter in February 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 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

2 Segallini is the dispatcher manager.
Hagen contacted the Union and met with Union Representa-
tives Matt Ginsberg and Sandy Pope in mid-March. After the
union representatives explained the union benefits and the pro-
cedure 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 13. At the April 13 meeting, 14 driv-
ers 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, dis-
patcher Wong asked employee Donald Bricker, “[H]ow 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 ap-
proached by Williams at work. Williams asked Bricker if “[h]e
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, an-
nouncing 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 employ-
ees.” Badalamenti then invited the drivers to air any com-
plaints that they may have with their work. The drivers raised
several issues, such as the loss of 1 hour of prep time, wage
freeze, pay for waiting time, the way they were treated by dis-
patchers, and the hiring of new drivers.
Badalamenti indicated that Respondent was considering giv-
ing back the 1-hour prep time, and he would discuss it with
Berkman, and inform the employees of Respondent at a subse-
quent meeting. He told the employees that pay raises are still
frozen. With respect to the other complaints raised by the driv-
ers, 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 Ex-
press “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 fro-
zen. However, Badalamenti indicated that in response to driv-
ers 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 follow-
ing up on last week’s meeting and had some results for the
MUSIC EXPRESS EAST, INC. 1069
employees. He added that all unions do is take your money and
dues.
Badalamenti also told the employees that if employees were
terminated for a subpar 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 man-
agement. 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 in-
formed 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 driv-
ers, 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 deci-
sions 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 chauf-
feurs and the company running at peak efficiency. I an-
ticipate 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 chauf-
feurs 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 it would be ethical to sit on the advisory committee, be-
cause he was the head of the union organizing committee.
Badalamenti responded, “If that’s the way you feel, okay.”
Ultimately, 19 employees signed up for the election.3 Re-
spondent posted a memo, dated April 30, which listed the 19
names as “Chauffeur Committee Candidates List.” The elec-
tion 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. Subse-
quently the ballots were counted by Badalamenti in the pres-
ence 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 is-
sues have already been addressed at the first committee
meeting held today (May 2, 2002). The issues and con-
cerns 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 hurt-
ing 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 then
asked Williams to step out into the hall. Ginsberg informed
Williams that he had been informed by employees that Wil-
liams was a supervisor and a driver-trainer, and it was not ap-
propriate 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 meet-
ing. A day or two after the May 4 meeting, the union organiz-

3 Included on the list was Emad Mercho.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
ing committee faxed a letter to Respondent. When Williams
returned to the shop the next day, he informed Badalamenti that
he had 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 Badalamenti
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 Rich-
ter to discuss the letter from the union organizing committee.
Badalamenti asked Richter and Bricker to hold off on the Un-
ion’s organizing, and give him 3 months, in order to give Re-
spondent 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 Re-
spondent, 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 Respon-
dent could not provide the letter that the employees were seek-
ing.
Also during the May 8 meeting, Richter observed that Re-
spondent had recently restored the 1 extra hour of prep time to
the employees, and he felt that was done because of the pres-
ence of the Union. Badalamenti replied yes.
On or about May 2, the chauffeurs committee formed by Re-
spondent 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 mem-
bers 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 be-
tween you, Richie and the chauffeur staff, this committee
was formed.

4 This list included Richter, Acosta, and Bricker.
As you are aware, the events of September 11th have
delivered a tremendous toll on all of our lives. We have
endured a period of “belt tightening” times for the imme-
diate problems of our company. It is the consensus opin-
ion 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 an-
nual 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 in-
tending 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 reason-
able 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 couple
of weeks.

Music Express East, Inc.—Committee Members:

Michael Murray Ira Berlowitz Steve Wilson Victor Dun-
can
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:

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
5 The Union filed its initial charge on May 7, concerning the dis-
charge of Mercho, and then on May 17, filed an amended charge, alleg-
ing various unfair labor practices, including the creation of a drivers
committee.
MUSIC EXPRESS EAST, INC. 1071
your Management in rebounding from the debilitating im-
pact 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 out-
side 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 Re-
lations Board, claiming that Rich Badalamenti and your
other New Jersey Management violated [F]ederal 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 then rewarded you for rejecting the
Teamsters.
The union is also contending that one Chauffeur, who
was terminated for perfectly justifiable reasons, was actu-
ally (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 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 un-
ion’s false accusations about the Chauffeur’s termination,
no matter how long it takes to expose their lies. Eventu-
ally, 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 exchange of
correspondence such as this. So that you will fully under-
stand how extreme this Teamster request truly is, the Na-
tional 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! Unfor-
tunately, 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 out-
siders continue to organize among our Chauffeurs and at-
tempt to speak for you. You were fair and well inten-
tioned in sharing with me that you feel mistakes were
made, and that, even though not intended, your 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 your-
selves, a union knows when it tries to organize any com-
pany’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 com-
pany (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 frustra-
tion, 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

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 1999. Mercho worked regularly Sunday through
Friday, generally starting work at about 1 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 employ-
ees in March and April about bringing in the Union. Mercho
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
was informed about the union meetings in April, but he did not
attend because he was working.
On April 23, at about 1 a.m. in the morning, after his shift,
Mercho and fellow employee Johnny Acosta were in Respon-
dent’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 em-
ployees who signed up for the committee at the April 24 meet-
ing. 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 Mer-
cho was coming into work in the parking lot, he met Isaac Wil-
liams. Mercho was aware that Williams had been a driver-
trainer, but for some period of time after September 11, 2001,
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 har-
assment 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 authoriza-
tion 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 about it.7

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 confus-
ing, since he testified that he signed the card after the meeting he at-
tended 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 be credible, particularly since he is still employed by Respon-
dent. Therefore, based on the foregoing, I conclude that Mercho signed
the union authorization card on April 23.
7 This finding is based on the testimony of Mercho. Although Wil-
liams 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 he not
know about Mercho signing a card, but had no knowledge of any spe-
cific employee, even Richter being a union supporter. I find this testi-
mony clearly unpersuasive, since even Badalamenti conceded that he
was aware of the fact that Richter and Bricker were union supporters.
On or about April 30, when Mercho was picking up his as-
signment, 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 ar-
rived at the office Chizmadia was not there, and Mercho was
called into Badalamenti’s office. Badalamenti informed Mer-
cho 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 Badala-
menti would not answer, and merely wished Mercho “good
luck” and shook his hand.
Later in the week Mercho went into the office to 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 in-
formed Ginsberg and the other employees that he had been
terminated. He told Ginsberg about how 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 a 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 Re-
spondent, 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 situa-
tion.
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 Respon-
dent, which the parties agreed was an accurate translation of the
discussion. It began with Segallini asking Mercho how he was

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 he
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.
MUSIC EXPRESS EAST, INC. 1073
doing and why Mercho appeared to be unhappy or mad at Re-
spondent.
Most of the discussion revolved around Mercho’s dissatis-
faction and complaints about the amount and type of assign-
ments 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 stretchs. 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 testi-
fied that the reasons for his decision were that Mercho was
filing for unemployment, when he was still working for Re-
spondent 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 enti-
tled to it. And then, on top 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 un-
employment 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 seemed 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 didn’t 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.”
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 dis-
patcher.”
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 Sep-
tember 2001. At that time, subsequent to September 11, 2001,
a number of companies, including Respondent became in-
volved with partial unemployment claims, which were filed on
a mass basis for many employees. Thus, employees could re-
ceive 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 rep-
resentative 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 the 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 and 30,
2002, which is the period after Mercho’s testimony in this mat-
ter.
Mercho attempted to explain the filing in April by asserting
that he believed that he was merely filing again for partial un-
employment, as he did in September 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 2002. I credit
Chizmadia’s testimony in this regard, and find that Mercho
sought to reopen this claim on his own in April 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 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
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 concern-
ing 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.
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 in-
volved in a pay dispute with Respondent. This dispute esca-
lated into a lawsuit for $10,000 by Debowsky. While this law-
suit was progressing, Debowsky started to gradually stop com-
ing to work, and refusing work for Respondent. At some point,
while still employed by Respondent, Debowsky filed for unem-
ployment. Since Debowsky had not been laid off by Respon-
dent, after consultation with Goldman, Respondent took the
position that he had resigned, and contested Debowsky’s un-
employment claim. The unemployment claim was decided in
favor of Debowsky after a telephone hearing. While Respon-
dent appealed this determination to the highest level, the ap-
peals 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 Mer-
cho’s unemployment claim. It appears that at one point Re-
spondent 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 bene-
fits” 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 Re-
spondent’s personnel files, dealing with instances of prior dis-
ciplinary actions against other employees. They include a ter-
mination report for employee David Cooke, dated January 23,
2002. It reflects that he was discharged for job abandonment,
and refers to attached writeups. 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 Chiz-
madia 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 Re-
spondent. Again Cooke did not remember. Cooke also in-
formed Respondent that he had not called for work for months,
because he was still upset about the September 11, 2001 trag-
edy.
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 noti-
fied Cooke that he was terminated. The letter goes on to say,
“[a]fter 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 unem-
ployment, although he was not laid off. Respondent also ad-
vised 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 em-
ployment on February 22, 2002, to move out of town.
Finally, Respondent’s files reveal that employee Harris Ya-
kov received two 1-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 argumenta-
tive 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 1-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 dis-
patcher 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 on March
20, 2001. His termination report, which indicates that he re-
signed, 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
MUSIC EXPRESS EAST, INC. 1075
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 Badala-
menti’s attention the taped conversation.10
Finally, Mercho did not dispute the conversation with Segal-
lini, 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 Segal-
lini 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 2 hours no show pay for that
job.
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 com-
bined program of inquiry and correction will make union repre-
sentation 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 employ-
ees reject the Union.
Thus, on April 18, Respondent’s vice president, Badala-
menti, conducted a mandatory meeting during which he invited
employees to air any complaints that they may have, after in-
forming the employees that “outside sources would be catastro-
phic to the company and its employees.” The employees raised
various problems and issues, including the loss of 1-hour prep
time. Badalamenti informed the employees that he would con-
sider 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 Respon-
dent at that meeting solicited grievances from employees, with

10 Segallini did not testify. Thus there is no explanation of why
Segallini did not find it necessary to notify Badalamenti about the con-
versation or why he did not fill out a comment card, detailing the dis-
cussion.
an implied promise to resolve them, in order to discourage un-
ion 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 refer-
ence to the complaints of employees, particularly the loss of 1-
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 1-hour prep time
that had been taken away, and that Badalamenti would, in re-
sponse 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 employ-
ees still wanted a union, since Respondent was following up on
last week’s meeting and had some results for employees. Fur-
ther Badalamenti suggested the formation of chauffeur’s com-
mittee which would represent drivers and go over problems
with Badalamenti and reach a conclusion.
The above evidence demonstrates blatant violations of Sec-
tion 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 meet-
ings 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 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. Badala-
menti 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 employ-
ees, 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 com-
mittee. Badalamenti asked the employees to hold off on the
Union’s organizing for 3 months, in order to give Respondent a
chance to prove itself and allow the chauffeurs committee to
function. These remarks are further instances of an unlawful
implied promise of benefit, to dissuade employees from engag-
ing 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 Badala-
menti announced that Respondent was restoring the 1-hour prep
time that had been taken away, and that in response to em-
ployee complaints about dispatchers, that he would monitor
dispatch and take over some dispatch functions. Badalamenti
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
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 antiunion statements, including Badalamenti’s own state-
ment on April 24, that he couldn’t understand why employees
still wanted a union, since Respondent was following up on last
week’s 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. Af-
ter accusing Richter of being inconsiderate by continuing to
push for the Union, I have found above that Respondent unlaw-
fully 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 meet-
ing would be. In these circumstances, Badalamenti’s com-
ments 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).
The General Counsel also contends that comments made to
or in the vicinity of Bricker by various dispatchers are similarly
violative 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, 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 viola-
tion is missing. The statements must have been made by su-
pervisors or agents of Respondent. Here the complaint does not
allege that Segallini, Wong, or any other dispatcher of Respon-
dent are supervisors or agents of Respondent. Nor did the Gen-
eral Counsel seek to amend the complaint to so allege. Thus
the issue of the supervisory or agency status of these individu-
als 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.
The 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). The Gen-
eral Counsel argues that since Williams intentionally tried to
attend the meeting, such action has the tendency to unreasona-
bly chill the exercise of employees Section 7 rights, and consti-
tutes unlawful surveillance of protected activities. Hoschton
Gourmet, 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 em-
ployees amount to unlawful surveillance.” King David Center,
328 NLRB 1141, 1142 (1999); Gossen Co., 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 surveil-
lance in the minds of employees in attendance at the meeting.
Atlanta Gas Co., 162 NLRB 436, 438 (1966); see also Univer-
sal Packaging Co., 149 NLRB 262, 263–264 (1964) (Board
reverses ALJ and finds that presence of supervisor at motel
where union meeting took place was not violative of the Act.
The Board finds no evidence purpose of supervisor going to
hotel was to observe meeting.).
Therefore, based on the above precedent, it is essential to ex-
amine the facts that led to Williams’ attendance at the meeting.
Here the organizing committee distributed a flyer inviting driv-
ers 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 cir-
cumstances, 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 a 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 mem-
bership. Howard Johnson Motor Lodge, 261 NLRB 866, 871
(1987).
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 Wil-
liams, 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 be-
MUSIC EXPRESS EAST, INC. 1077
lieved he was entitled to be there, cannot be construed as
unlawful surveillance, and is not violative of the Act. I shall
therefore recommend dismissal of this allegation in the com-
plaint.
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 coercive-
ness of the question. NLRB v. McCullough Environmental
Services, 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 un-
fair labor practices 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 crea-
tion and domination of the chauffeurs committee, which I find
below. In such circumstances, these unfair labor practices rea-
sonably tend to color the employees perception of the character
and reason for the inquiry, and render such questioning coer-
cive. Ickikoh Mfg., 312 NLRB 1022, 1025 (1993); Jakel Mo-
tors, supra at 730; EDP Medical Computer Systems, 284 NLRB
1232, 1264–1265 (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 or-
ganization, the second inquiry is whether Respondent has
dominated or interfered with the formation or administration of
the committee. Polaroid Corp., 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).
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; Electro-
mation, 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 the
above definition have been met. Thus I find, without any fur-
ther 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. du Pont &
Co., 311 NLRB 893, 894 (1993).
Respondent argues that the evidence presented by General
Counsel is insufficient to meet this definition of in effect a bi-
lateral process. Quoting from Polaroid, supra, and Electroma-
tion, supra, 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 the General Counsel has not ad-
duced 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 meet-
ing 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 “repre-
sent” the drivers and act as liaison between drivers and man-
agement. 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 rejec-
tion.
Further, the evidence discloses that after the May 2 meeting
of the committee, it decided to distribute questionnaires to driv-
ers, 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 401K and medical benefits, and an agree-
ment 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 letter alone is more than sufficient, in and of itself to es-
tablish the purpose of the committee. Respondent stresses the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
significance of Berkman’s reply of June 12, wherein Respon-
dent 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 organi-
zation 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 defini-
tion 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 at 995. Here, Respondent an-
nounced the formation of the committee at mandatory meet-
ings, determined the structure of the committee, including the
number of members, solicited volunteers for the committee,
issued a memo requesting 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 the General Coun-
sel 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 the General Coun-
sel has met that burden of proof, the burden shifts to Respon-
dent 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 the 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 testi-
mony 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 knowl-
edge of Mercho’s union activity is imputed to Respondent.
Woodlands Health Center, 325 NLRB 351, 361 (1998); Ready
Mixed Concrete Co. v. NLRB, 81 F.3d 1546, l552 (10th Cir.
1996), affg. 317 NLRB 1140, 1143–1144 (1995). Moreover, I
find it highly likely that Williams would have informed
Badalamenti about his conversation with Mercho. Thus, Wil-
liams admitted that he told Badalamenti that he had gone to the
Union meeting, and had been asked to leave, so I find it prob-
able 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, 1186 (1994); 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 1228, 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 orga-
nizing 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 Badala-
menti 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 substitut-
ing the committee. Therefore, Badalamenti in my judgment felt
that Mercho would be someone that he should get rid of, be-
cause 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 an-
nouncement 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.

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 Sec. 8(a)(1) of the Act.
MUSIC EXPRESS EAST, INC. 1079
Moreover, the record contains substantial evidence of Re-
spondent’s animus towards the union activities of its employ-
ees, 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. This action was a clear attempt to
persuade employees to abandon their union efforts, and
Badalamenti made several statements indicating animus to-
wards 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 continu-
ing 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 griev-
ances, promises and grant of benefits to discourage employees
from supporting the Union, creating the impression that their
union activities were under surveillance, and coercive interro-
gation.
Accordingly, the above evidence is more than sufficient to
establish a strong link between the discharge of Mercho and his
union activities, and that the General Counsel has made a
strong prima facie showing of discriminatory motivation. Since
the General Counsel had made such a strong prima facie show-
ing, 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 un-
employment. 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 (2d Cir. 1996); New Jersey Bell Telephone, 308
NLRB 277, 283 (1992). “Under Wright Line, an employer
cannot carry its burden of persuasion by merely showing that it
had a legitimate reason for imposing discipline against an em-
ployee, but must show by a preponderance of the evidence that
the action would have taken place even without the protected
conduct.” Hicks Oil & Hicksgas, 293 NLRB 84, 85 (1989).
Not only has Respondent failed to show that it has termi-
nated employees for engaging in any of the infractions which
allegedly caused it to terminate Mercho, but its treatment of
Mercho differed substantially from how it treated other em-
ployees, 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 consti-
tutes an implicit abandonment of these grounds, or at least a
realization that these grounds are questionable, I conclude 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 testi-
mony that he considered Mercho’s foul language directed to-
ward Segallini to be inappropriate.12 In that regard, Badala-
menti conceded that vulgarity is a regular practice in conversa-
tions 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 em-
ployees terminated for vulgarity or abusive language towards
supervisors. To the contrary, Respondent’s files revealed sig-
nificant evidence of disparate treatment. Thus Harris Yakov
received two 1-day suspensions for abusive language in Janu-
ary 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 card from the supervisor stating, re-
ferring 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 ter-
minated, despite this record, and resigned on March 20, 2001,
but with a comment on his termination report, not recommend-
ing 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 expla-
nation 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 treat-
ment by Segallini, with Mercho at no time, directed any profan-
ity towards Segallini personally. Contrast that with Yakov,
who called a dispatcher an “asshole” and a “son of a bitch,” and
received only a 1-day suspension, with a prior record of a pre-
vious 1-day suspension.
I also find it highly significant that Segallini the dispatcher to
whom Mercho directed the allegedly abusive and verbal re-
marks, 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’s “snide comments,” never com-
plained 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 Re-
spondent’s defense. It appears that Respondent uses a progres-

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
sive 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, employ-
ees treated in the past more leniently for more serious miscon-
duct); Sonoma Mission Inn, 322 NLRB 898, 905 (1997) (failure
to follow normal practice and disparate treatment); Grand Cen-
tral 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 pre-
textual, it follows that Respondent had not shown that it would
have terminated Mercho for this conduct, absent his union ac-
tivities.
Respondent’s second alleged reason for the discharge, his al-
leged 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 simi-
lar conduct were treated more leniently, and Respondent did
not employ its normal, progressive disciplinary system.
Respondent’s files reveal that employee Keith Davis in-
formed Respondent on two different occasions that he would
not be available to work first on Sundays, and then on Satur-
days. 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 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
10-1/2 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 Respon-
dent’s files had not called in for work for over 4 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 disci-
plined 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 dis-
patcher 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 unavailabil-
ity, or his refusal to work on Sundays. Indeed a close examina-
tion 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.
Government Employees (IBPO), 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 Em-
ployer 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 Mer-
cho, never expressed any dissatisfaction with Mercho’s deci-
sion, 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 tape itself indicated that
Mercho’s alleged unavailability on Sundays would be tempo-
rary 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 Mer-
cho had told Segallini, Mercho did not have another job on
Sundays.
The failure of Badalamenti to speak to Mercho about the is-
sue is even more damaging, in light of the fact, as detailed
above, that when Respondent had a problem with the availabil-
ity of employee Cooke, he was called into the office to explain
why he had not called in for work, for over 4 months. Simi-
larly, when Davis told Respondent of his weekend unavailabil-
MUSIC EXPRESS EAST, INC. 1081
ity, 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 issue, and permitted Davis to continue not
working on weekends, until he quit over 10 months later.
The above facts demonstrate that Respondent was not inter-
ested 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 con-
duct.
I now turn to the final reason asserted by Respondent, Mer-
cho’s conduct of filing a false unemployment claim. This does
appear to be the primary reason that Respondent contends mo-
tivated 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 con-
clude, as I have, that the other two reasons asserted by Badala-
menti and in Respondent’s documents, were pretextual. None-
theless, 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 substan-
tial 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 unem-
ployment 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 dis-
charge, 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 un-
ion activities and the union meeting scheduled to be held
shortly before his discharge.
The problems with Respondent meeting its burden of 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 Mer-
cho’s alleged false filing, and the failure to afford Mercho the
opportunity to explain his conduct, severely damages Respon-
dent’s defense and its attempt to meet its Wright Line burden of
proof.
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 re-
member,” 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 pro-
vided 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, while
receiving reduced work assignments from Respondent.
Whether Respondent would have accepted that explanation, or
whether that explanation was accurate is beside the point.
What is significant, is that Respondent seized on the oppor-
tunity to get rid of a known union adherent, right before a union
meeting that it was aware of without even attempting to ascer-
tain 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 simi-
lar 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, be-
cause 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, Re-
spondent contested the unemployment claim, and took the posi-
tion that Debowsky had not been laid off, but had abandoned
his job. Respondent here never contested Mercho’s unem-
ployment claim, even after it discharged him. Indeed, Respon-
dent 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 à vis Mercho, instead provides fur-
ther evidence of disparate treatment. It also shows that Re-
spondent cared very little about Mercho filing a false or fraudu-
lent 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 indi-
cated.
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,

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, Respon-
dent was not aware of this fact at the time of discharge, so it had no
bearing on the lawfulness of the termination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
makes little sense, and was not explained or explicated by Re-
spondent. As noted 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 Re-
spondent 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 lawsuit pend-
ing 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 connec-
tion 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, sub-
stantially undermines Badalamenti’s testimony and Respon-
dent’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
Mixed 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 en-
gaged 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 Sec-
tion 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 support-
ing the Union, and creating the impression that their union ac-
tivities were under surveillance, Respondent has violated Sec-
tion 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 employ-
ees in the exercise of the rights guaranteed in Section 7 of the
Act, Respondent had violated Section 8(a)(1) of the Act.
8. Respondent has not violated the Act in any other manner
alleged in the complaint.
9. The aforesaid unfair labor practices are unfair labor prac-
tices 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 de-
sist therefrom, 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 representa-
tive 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 backpay and reinstatement. However, Respondent
argues that Mercho’s backpay should be tolled and reinstate-
ment denied, because of the “after acquired evidence,” that it
uncovered during the course of the instant hearing, which es-
tablished that Mercho engaged in “insurance fraud.”
In that regard, Respondent relies on the testimony of De-
partment of Labor Representative Smith, and the documents
submitted, which establish that Mercho’s filed for unemploy-
ment while listing his last date worked for Respondent on April
1, and that Mercho did not report his April earnings with Re-
spondent 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 evi-
dence” on September 9, and that his backpay 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 “af-
ter acquired evidence” would have had any impact on its deci-
sion. Thus while Badalamenti testified at length about Respon-
dent’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 backpay remedies be
ordered.
MUSIC EXPRESS EAST, INC. 1083
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 Respon-
dent. 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 col-
lect, when he filed, so the new evidence is not all that signifi-
cant. More importantly, the evidence discloses that Respondent
cared little about any 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 es-
tablishing that it would have terminated Mercho, if it had
known about the alleged “fraud,” and I shall order him rein-
stated with backpay. Backpay shall be computed with interest
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, Music Express East, Inc., Elmwood Park,
New Jersey, its officers, agents, successors, 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 employ-
ees from supporting the Union.
(c) Promising and granting its employees restoration of 1-
hour 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 from 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 sup-
port to the Music Express Chauffeurs Committee (the Chauf-
feurs Committee) or any other labor organization.
(f) Telling employees that it intends to form such labor or-
ganization or suggesting or encouraging employees to form,

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 recom-
mended 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.
participate in or cooperate with the Chauffeurs Committee con-
cerning terms and conditions of employment.
(g) Discharging and thereafter refusing to reinstate its em-
ployees because of their activities on behalf of or support for
the Union.
(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 effec-
tuate the policies of the Act.
(a) Immediately withdraw all recognition from and com-
pletely disestablish the Chauffeurs Committee and refrain from
recognizing the Chauffeurs Committee, or any successor
thereof as representative of its employees for 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 privi-
leges previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation 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 pay-
roll records, social security payment records, timecards, per-
sonnel 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 backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
Elmwood Park, New Jersey facility, copies of the attached no-
tice marked “Appendix.”17 Copies of the notice, on forms pro-
vided 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 al-
tered, 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 pro-
ceeding, Respondent shall duplicate and mail, at their own ex-
pense, 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 a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
(f) Within 21 days after service by the Region file with the
Regional Director a sworn certification of a 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.