New York One, LLC

National Labor Relations Board - Administrative Judge Opinions

Feb 22, 2007

02-CA-036987 (N.L.R.B. Feb. 22, 2007)

JD(NY)-11-07
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
NEW YORK ONE, LLC.
and Case No. 2-CA-36987
2-CA-37788
MOHAMMED SHAHEEDUL HUQ
Susannah Z. Ringel, Esq., for the General Counsel
James J. Armenakis, Esq., (Armenakis &
Armenakis), of New York, New York, for
the Respondent
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was tried in New
York, NY, on July 27 and 28 and October 3, 2006. The Complaint alleges that Respondent, in
violation of Section 8(a)(1), (3) and (4) of the Act, engaged in various activities which interfered
with employees’ rights, discharged Mohammed Shaheedul Huq and attempted to blacklist Huq.
Respondent denies that it has engaged in any violations of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent on November 22,
2006, I make the following1
Findings of Fact
I. Jurisdiction
The Respondent, a New York corporation, is engaged in the wholesale vending supply
and retail sale of beverages, hot dogs, sausages, ice cream and pretzels around Central Park in
New York City. Respondent has an office at 349 West 37th Street, New York, New York, where
it annually derives gross revenues in excess of $500,000 and purchases materials or services
valued in excess of $5,000 directly from suppliers located outside the State of New York. The
Respondent admits, and I find, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.

1 The transcript is hereby corrected so that at page 269, line 1, the answer reads “I’m a
vendor.”
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II. Alleged Unfair Labor Practices
A. Factual Basis
Background
Respondent is engaged in various businesses including the operation of catering halls
and carousels, the manufacture of pretzels and hot dogs, and the operation of concessions in
various New York City Parks. At issue herein is Respondent’s business selling pretzels, hot
dogs, beverages and other items from pushcarts located in Central Park and on the sidewalks
at the perimeter of the Park. Respondent is licensed by the New York City Parks Department to
operate the pushcarts in Central Park and its methods of operation are strictly controlled by the
Parks Department. The record does not specify the exact number of pushcart locations
maintained by Respondent in and around the Park, but the number is less than 50. The number
of locations actually occupied by a pushcart on any given day varies with the seasons and with
the weather on that day. Certain locations near museums or in busy areas are operated all year
and even in inclement weather. If the weather is cold or rainy, many locations are not operated
on a regular basis.
The pushcarts are manned by vendors employed by Respondent and licensed by the
City of New York. Every morning the vendors gather at Respondent’s garage where the
pushcarts are stocked with the items to be offered for sale. The pushcarts are then loaded onto
flatbed trucks, along with the vendors who will operate them, and the trucks deliver the
pushcarts and the vendors to their designated locations. Many vendors have preferred
locations and they may operate a pushcart at their preferred location on a regular basis.
However, vendors may be assigned to any location on a particular day at the discretion of
management.
Among the many regulations enforced by the Parks Department is a requirement that a
sign, known as the 311 sign, be visibly posted on each pushcart notifying the public that2
If you have any questions
or complaints about service
or overcharging, please call 311.3
A number of years ago a local television station broadcast an expose of food vendors’
practices, including overcharging for items and giving incorrect change to tourists. This resulted
in more vigorous and sustained efforts by the Parks Department to police the vendors.
Regulations require the vendors to display a list of prices and to display on their carts the
smaller as well as the larger cans of beverage they are offering for sale. Parks Department
employees regularly check that all regulations are being complied with. Fines may be levied
against the individual vendors and the Respondent for a variety of violations.
Many of the vendors employed by Respondent are Bangladeshi. It is the practice for
most of them to work long hours during the spring, summer and fall months and to go home to
visit their families at the end of the year. The vendors return to New York in March and resume

2 The size, lettering and color of the sign are specified by the Parks Department.
3 The telephone number 311 was established to take questions and complaints about New
York City governmental operations and services. It is reserved for non-emergency calls.
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work at the end of March or the beginning of April. The testimony of the witnesses shows that
this practice is accepted by Respondent and that the vendors announce to management that
they intend to leave at a certain time and they report back to work when they are once again
available. No formal leave of absence mechanism is in place. The record shows that
Respondent is happy to have its experienced vendors work on this basis. The work is arduous
and requires skills in handling money, products and the long lines of customers. Indeed,
Respondent’s witnesses testified that the company never fires anyone.
The General Counsel contends that Respondent discharged pushcart vendor
Mohammed Shaheedul Huq when it learned that he was organizing a meeting of his fellow
Central Park vendors to discuss workplace problems. The General Counsel contends that after
Huq’s discharge Respondent attempted to prevent his employment by a fruit vendor at a New
York City location on 72nd Street and Lexington Avenue. Respondent denies that it discharged
Huq or attempted to blacklist him and it contends that he stopped presenting himself for work.
Huq had worked for Respondent since 1988.
The following individuals are supervisors of Respondent within the meaning of Section
2(11) of the Act and/or agents of Respondent acting on its behalf:
Thomas Makkos President
George Makkos Shareholder
Aldo Casanova Supervisor
Thomas Makkos directs the day to day operations of the Central Park pushcart
enterprise. He is known to employees as “Mr. Mike.” Makkos has an office in the garage where
the pushcarts are serviced and stored.4
Events from April 29 to May 2, 2005
The testimony of Thomas Makkos, of Supervisor Aldo Casanova and of Huq establishes
that on April 29, 2005 Casanova made a sweep through the Park to ensure that Respondent’s
pushcarts bore the required 311 sign where it could not be blocked from view by merchandise.
Eventually, Casanova approached Huq’s pushcart and Huq made it clear that he did not want
Casanova to affix a 311 sign on the front of his pushcart. Huq protested that he already had a
sign and Huq questioned whether Casanova had the authority to order Huq to accept the sign.
Casanova told Huq that his existing sign was obscured by bottles. Casanova was offended by
Huq’s manner and he gave the 311 sign to Huq and walked away.5 Casanova reported to
Makkos that Huq had given him a hard time and had refused to permit him to post the sign.
When Huq returned to the garage that evening Makkos spoke to him about the 311 sign.
Makkos testified that he told Huq that Casanova was his supervisor and that the sign had to be
posted in front of his cart. Huq said, “OK” and went home for the evening. Respondent has not
been issued any violations with respect to Huq’s failure to have a visible 311 sign on his
pushcart.
Huq testified that on Saturday April 30, 2005 he arrived at work at about 6:45. There

4 George Makkos did not testify herein and will not be referred to in this Decision.
5 Huq’s relationship with Casanova had experienced some contentious episodes in the past.
However, these are not relevant to the material events in the instant case. Respondent does
not contend that it discharged Huq for any misconduct. Respondent maintains that Huq quit his
job.
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were three or four other vendors there preparing to begin the day’s work. Huq followed his
usual morning routine and he went upstairs to obtain merchandise to load on his cart. Makkos
came up a while later and told Huq that because it was a rainy day he could go home. Huq
agreed and said he would return the merchandise he had taken for his cart. Makkos offered to
perform this task and Huq left the garage. Huq testified that a few hours later he went to Central
Park to discuss working conditions with those vendors who were working that day. Huq spent
much of Saturday in the Park and he spoke to 15 or 20 vendors about their common concerns.
These issues included a cessation of the $5 lunch money, failure to provide for a lunch break,
problems with theft of merchandise in the Park, ventilation shortcomings in the garage and slow
elevator service in the garage. The vendors had discussed these matters in the past. Huq told
them that they should organize in order to speak to the boss about their concerns. Huq said
they must take a position and go to the boss. The vendors planned a meeting for Monday May
2nd at a restaurant in Jackson Heights, Queens. According to Huq, Monday was a slow day for
Central Park vendors.6 Huq did not ask the vendors to keep the news of the meeting private.
Huq’s account of his activities on Saturday April 30 was corroborated by Khandoker
Mohammad Fazlul Haque who testified pursuant to a subpoena issued by Counsel for the
General Counsel. Haque worked for Respondent from May 2003 until August 2005 when he left
to take a job with the City of New York in the Traffic Control Department. Haque described Huq
as a “leading man” in discussions with vendors concerning their problems. Haque recalled that
Huq spoke to him in the Park on a Saturday and told him of a meeting to be held on a Monday
in Jackson Heights.
Huq testified that on Sunday May 1, 2005 he reported for work at the company. Huq did
not punch in. According to Huq, Makkos was there and he was very angry. Huq stated that
Makkos made as if to hit him and when Huq ran out Makkos ran after him. Makkos used a lot of
bad language and he said, “Get out, you are fired, I don’t want to see you next time. You are
trying to mess up my business, you can do nothing. I have big lawyers, I have plenty of money,
I will sue you personally.” Makkos ordered Huq to get out of the premises. Huq testified that
the boss did not touch him but that he was very close to him. When Huq asked whether he
could retrieve his personal belongings from his pushcart Makkos said, “No, get out.” Other
workers were present. Huq named these as Imrul Islam Khan, Jadul, Hassam and Casanova.
Huq asked Islam Khan to accompany him to a police station so that he could make a report.
Huq went to the 35th precinct station where he was told that it was not a police matter because
the boss had not actually touched him.
Imrul Islam Khan testified pursuant to a United States District Court order.7 Khan, who
has worked for Respondent as a vendor since 1999, recalled that he came to work on a Sunday
in April or May 2005 at 7:15 or 7:30 am and was told to go home by Makkos. As Khan was
leaving the garage he saw Huq arrive. Khan was near the door to the garage when Makkos
came out of his office and addressed Huq. Khan was standing close to Huq and he heard
Makkos speak to Huq in an angry manner. Makkos said, “You can’t ever come to my garage.
You get out of here. You are fired.” Makkos used bad language and told Huq, “You fucked my
business.” There were other vendors in the garage. Khan could recall the names of only some
of them: Jadul, Abassi, Hassam, Ghazi and Mullah. Khan walked outside and at Huq’s request
Khan accompanied him to a police station. Khan did not enter the precinct house with Huq.
In response to questions posed by Counsel for Respondent Khan testified that the only

6 Most of the museums bordering the Park are closed on Monday.
7 Counsel for the General Counsel sought subpoena enforcement from the court.
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person besides Huq who was ever fired by Respondent was Kwazi.8 Khan said Kwazi had a
meeting about a union. After this the boss told him to go home whenever he appeared for work
and after a while Kwazi did not return to the company premises. This was in 2002 or 2003.
Also in response to a question by Counsel for Respondent Khan stated that he thought Makkos’
confrontation with Huq resulted from the fact that Huq had organized a meeting that week.
Mohammed Oajadul Islam Bhuiyan testified that he witnessed a confrontation between
Makkos and Huq the same week that the vendors met in a restaurant in Jackson Heights.9
Bhuiyan could not recall whether the incident took place before or after the meeting which he
recalled taking place on a Monday. His testimony placed the incident both before and after the
meeting. Bhuiyan’s affidavit also placed the incident after a meeting called by Huq. Bhuiyan
stated that he had not been given any work on the day of the incident. He was standing next to
the door to the garage when he heard the boss yelling at Huq. Makkos said, “Because you
came to break my company, don’t come to work anymore.” Makkos also yelled, “Why did you
have the meeting? I told you why did you call the meeting?” In addition, Makkos said, “Why did
you come here? Leave. You called the meeting. You tried to break my business. You called
everybody. I’m going to fire you. You leave.” Huq came out of the garage fast and the boss
was behind him. Respondent introduced Bhuiyan’s affidavit into evidence. The affidavit is
consistent with Bhuiyan’s testimony about Makkos’ statements to Huq. The affidavit mentions
“Qazi Rahman” as a former employee who tired to make conditions better and who was fired or
forced to quit. The affidavit also states that Bhuiyan had tried to form a union with Huq to get an
increase in pay. Makkos told Bhuiyan, “If you like your job, be quiet, or you’ll be the next
Quazi.” I note that despite the fact that Respondent introduced Bhuiyan’s affidavit into
evidence Makkos did not deny that he told Bhuiyan to be quiet or he would be the next Quazi.10
Huq testified that he attended the employees’ meeting in the Jackson Heights restaurant
at about 2 pm on Monday May 2, 2005. About 14 to 16 vendors were present. Huq told the
vendors that he had been fired and as a result he could not speak to the boss about employee
problems. He said that others could make the decision whether to speak to the boss about the
issues. According to Huq the other vendors said they had families and did not wish to fight with
the boss.
Haque testified that at the Monday meeting Huq told the vendors that he had been fired
and he said it was up to them to talk to the boss about their problems. Haque recalled that the
concerns discussed by the employees that day included their wages, lack of holidays, lack of
breaks and problems in the office.
Khan testified that he attended the meeting where 10 or 15 vendors discussed their
wages and the fact that the company gave them a hard time. The employees complained that
management added too many bottled drinks to their carts during the day, forcing them to spend
a lot of time unloading the bottles at the end of the day. Khan testified that after he attended the
meeting Makkos sent him home without work on three or four different days. Makkos asked

8 Respondent maintains that it never discharges any vendors because good workers are
hard to find.
9 Bhuiyan is known as “Jadul” on the job. He has worked as a vendor for Respondent since
1998. Bhuiyan testified pursuant to a United States District Court Order enforcing a General
Counsel subpoena.
10 The warning about Quazi is not alleged in the Complaint and it is not clear why
Respondent chose to introduce the matter into evidence. It is evident that Quazi and the person
identified as Kwazi in Khan’s testimony are the same person.
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Khan, “Who gave you your job? Who takes care of your family, why did you go to the meeting
with Shaheed? Did Shaheed give you a job?”11 Makkos did not deny that he asked Khan why
he went to the meeting with Huq and he did not deny asking Khan about who provided Khan
with a job and took care of his family.
Casanova testified on direct examination by Counsel for Respondent that on Saturday
April 30, 2005 it was raining and only 14 or 15 vendors worked in and around the Park. About
10 vendors went home. Casanova testified that when he made his rounds in the Park that day
he did not see Huq. On Sunday May 1 there was nice weather but Huq did not come to work.
Casanova saw him at Fifth Avenue and 72nd Street at about 1 or 1:30 pm. Casanova asked
why Huq had not come to work and Huq replied that, “I don’t come back to work.” When
Casanova asked the reason Huq replied, “I have a little problem with Mike, maybe I’m not
coming to work no more.” Although Casanova asked about the problem Huq said he could not
talk about it. Casanova testified that Huq returned to work on Monday May 2 but then he
changed his testimony to say that it was a rainy day and Huq did not come back. On cross-
examination by Counsel for the General Counsel Casanova at first stated that he did not see
Huq in the Park on Sunday May 1 but then he said he had seen Huq and he had spoken to him
about working. According to Casanova Huq did not say he had been fired. However, Casanova
then acknowledged that he had previously testified at a July 20, 2005 unemployment
compensation hearing that on Sunday May 1 Huq said he had been fired. Casanova recalled
asking Huq why he said he was fired. Casanova had not heard that Huq was fired.
Casanova said that on Monday May 2 a lot of vendors did not come to work because
they went to a meeting with Huq. Casanova heard about the meeting from Huq’s roommate on
Monday. Casanova informed Makkos that “there is a rumor that there was a meeting.”
Casanova stated that such a meeting was unusual. Makkos replied that it was OK for the
vendors to meet.
On direct examination by Counsel for Respondent Makkos testified that on Saturday
April 30 the forecast was for rain all day. Huq reported for work and he agreed not to work.
Makkos could not recall whether Huq reported for work on Sunday May 1. Makkos said that
Huq did not punch in on May 1 and he never saw him again because Huq did not report back to
work. On Monday May 2 the company had more than the usual number of absentee vendors.
Usually 5 to 8 vendors are absent but on that day 15 to 20 did not come to work. Makkos was
at work on Tuesday May 3 but Huq did not report for work. Makkos testified that on May 3 he
had no idea that a meeting of vendors had taken place the day before. He could not recall
whether he asked any of the employees why they had been absent the day before. On cross
examination Counsel for the General Counsel referred Makkos to his testimony at the July 2005
unemployment hearing. After reading his testimony which stated that Huq returned to work on
Sunday May 1 but left without saying anything, Makkos testified, “I was told that he was
probably wandering about and probably he never came back into the office.” Makkos did not
address Casanova’s testimony that Casanova had informed him of the May 2nd meeting.
Alleged Prehearing Conduct
Md. Mashadar Rahaman testified pursuant to a subpoena issued by Counsel for the
General Counsel. Rahaman worked for Respondent from 1999 to 2002. In 2002 he opened his
own fruit and vegetable business. At the time of the hearing Rahaman operated a pushcart at

11 Huq, whose middle name is Shaheedul, is often referred to as Shaheed by his fellow
employees.
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Lexington Avenue and 72nd Street. Rahaman testified that beginning in June 2006 Huq
occasionally worked for him helping to operate the pushcart. On Thursday, July 20, 2006 at
9:30 am Makkos parked his car near the location of Rahaman’s pushcart. Makkos called to
Rahaman and the latter greeted him by saying, “Hi boss, how are you.” Makkos, who was alone
in the car, asked whether Huq was working for Rahaman that day. Rahaman said Huq was not
working. Makkos said, “I know you are so nice. I don’t want to make any trouble with you, so
be careful about Shaheedul.” Rahaman replied that Huq was his friend and that he helped out
occasionally. Makkos continued, saying, “No, he’s working all day. And I know you are not
paying in check, you’re paying him cash. You’re not paying him check. So this is like illegal.”
Rahaman told Makkos that his pushcart was not a company and that he had no problems with
Huq. Makkos said, “Be careful about him, be careful about him.” Rahaman testified that
Makkos told him, “I am going to get into trouble” with Huq. Rahaman understood that Makkos
was telling him not to hire Huq but Makkos did not state what kind of trouble would arise from
employing Huq. Rahaman understood that Makkos was saying that if Huq were working for him
he could get into trouble. On one occasion before July 20 Rahaman had seen Makkos and his
daughter near his pushcart. The day after July 20 Makkos again drove to Rahaman’s spot at
about 2 or 3 pm. Huq was present and Makkos left.
Makkos testified that his daughter attends ballet school near 72nd Street and Lexington
Avenue. Makkos observed that Rahaman, a former employee, maintained a fruit stand at that
location and he stopped buy to buy a piece of fruit from time to time. Makkos testified that on
July 20 he parked his car at a meter next to Rahaman’s cart and walked his daughter to school.
According to Makkos he said hello to Rahaman and asked him how his business was going.
Makkos denied that he mentioned Huq’s name and he denied that he threatened Rahaman.
The next day Makkos saw Rahaman while taking his daughter to school. He was going to stop
for fruit but when he saw Huq he walked away.
B. Discussion and Conclusions
Credibility Findings
I find that Haque was a credible witness and I shall rely on his testimony. Haque’s
demeanor was cooperative and open. At the time of the instant hearing Haque had voluntarily
left Respondent’s employ to accept a civil service position and he was a disinterested witness in
this proceeding.
I find that Khan was a credible witness and I shall rely on his testimony. Khan still works
for Respondent and thus he places himself in an awkward position when he testifies against the
interest of his employer. Advocate South Suburban Hospital, 346 NLRB No. 23, fn. 1 (2006). In
fact, Khan was not a volunteer witness herein and his presence was obtained by court order. I
observed that Khan’s demeanor while testifying was open and cooperative and he answered
questions readily without seeking to add extraneous material.
I find that Bhuiyan was a truthful witness and I shall rely on his testimony. I observed
that Bhuiyan tried to remember the events and to answer all the questions as fully as possible.
In addition, Bhuiyan’s testimony was consistent with his affidavit given on July 6, 2005, a time
very close to the events at issue. Like Khan, Bhuiyan still works for Respondent and his
testimony had to be secured by court order. Bhuiyan’s confusion as to whether the vendors’
meeting took place before or after he heard Makkos yelling at Huq does not indicate
untruthfulness; it merely indicates a lack of memory about the date. Significantly, Bhuiyan was
not coached to remember one date rather than another and this is another indication that his
testimony was based on his best recollection and not on a fabricated version of the events.
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I find that Rahaman was a credible witness. He was cooperative on cross-examination
and did not seek to evade questions posed by Counsel for Respondent. Indeed, Rahaman was
respectful in his attitude to Makkos, calling him “boss.” Rahaman had no reason to shade his
testimony to favor either party and the only consequence of his appearance in this matter was
the loss of one-half day’s work at his pushcart.
I do not find that Casanova was a reliable witness. Casanova gave inconsistent and
shifting testimony. His testimony in the instant proceeding was contrary to his sworn testimony
at the July 2005 unemployment insurance hearing. I find that Casanova shaded his testimony
herein to favor Respondent’s position and I shall not rely on it where it is contradicted by more
reliable evidence.
I do not find that Makkos was a credible witness. First, Makkos’ testimony was contrary
to the testimony of witnesses whom I have found to be truthful. Second, as is discussed in
detail below, Makkos’s testimony herein was shifting and contrary to his sworn testimony in the
July 2005 unemployment hearing.
I find that Huq was a truthful and reliable witness and I shall credit his testimony. He
was cooperative on cross-examination and he did not seek to avoid answering questions about
his relationship with Casanova that might show him in an unflattering light. Huq’s account of the
relevant events was corroborated by other truthful witnesses.
Discharge and Related Events
I credit Huq’s testimony that on Saturday April 30, 2005 he spoke to 15 or 20 vendors
employed by Respondent in Central Park concerning issues such as lunch money, lunch
breaks, conditions in the garage and other terms and conditions of employment. Huq urged the
vendors to organize so that they could address management about their problems and he and
the vendors planned a meeting to be held in Jackson Heights on Monday, May 2. Huq’s
testimony was corroborated by Haque. Huq’s actions were protected concerted activities.
The credited testimony of Khan and Bhuiyan confirms the testimony of Huq that on
Sunday May 1, 2005 Makkos confronted Huq in the garage, accused him of “messing up” his
business and trying to “break his company” by “calling everybody” to a meeting. Makkos used
bad language and told Huq “get out, you are fired.”12 Khan supported Huq’s testimony that he
attempted to file a complaint at the local police precinct. I credit Huq’s testimony about this
incident. I find that Makkos yelled at Huq that he had interfered with his business by calling
fellow employees to a meeting and I find that Makkos discharged Huq for these reasons. I
credit Huq’s testimony that Makkos threatened to sue him personally using his “big lawyers” and
his plentiful supply of money. I do not credit Makkos’s denials concerning this incident. At first
Makkos maintained that Huq never reported for work on Sunday May 1. When confronted with
his July 2005 unemployment hearing testimony that Huq returned to work on May 1 but left
without saying anything Makkos stated, “I was told that he was probably wandering about and
probably he never came back into the office.” I find that this ambiguous and torturous phrase is
basically meaningless and that it evinces a purpose to evade the question and avoid telling the

12 As stated above, Bhuiyan recalled very well the words that Makkos yelled at Huq although
he was confused about the timing of the discharge in relation to the vendors’ meeting. I credit
Bhuiyan’s substantive recollection and I find that he was mistaken about the date of the
discharge.
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truth.
Casanova testified that he saw Huq in the Park on Sunday May 1 and asked why he had
not come to work. According to Casanova, Huq said he had a little problem with Makkos and
that he might not return. Casanova then changed his testimony on cross-examination to deny
that he saw Huq on May 1. Finally, Casanova acknowledged his earlier testimony at the July
2005 unemployment hearing that on May 1 Huq informed him that he had been fired. It is clear
that Casanova’s testimony in the instant hearing is shifting and unreliable. I shall rely on
Casanova’s testimony in the earlier hearing, given just weeks after the day in question, that on
May 1, 2005 Huq told Casanova that he had been fired. Huq’s statement to Casanova is further
evidence to show that Huq was fired on May 1.
I note Casanova’s testimony that he knew a meeting was to take place on May 2 and
that he informed Makkos of the fact. I find that Makkos already knew of the meeting when
Casanova spoke to him because Makkos referred to the meeting when he discharged Huq on
May 1. I do not credit Makkos’ testimony that on May 3 he had no idea that a meeting of
vendors had taken place the day before. I find that Makkos’ denial was an attempt to mask the
true reason for Huq’s discharge. Makkos testified that an unusual number of vendors had not
reported for work on May 2. Makkos referred to the vendors’ meeting in remarks he addressed
to Khan after the meeting and Makkos did not deny mentioning the meeting to Khan.
By telling Huq that he had messed up his business and was trying to break his company
because Huq had called employees to a meeting Makkos indicated knowledge of the planned
meeting and created an unlawful impression that the employees’ protected concerted activities
were under surveillance. “The Board does not require employees to attempt to keep their
activities secret before an employer can be found to have created an unlawful impression of
surveillance.” United Charter Service, Inc., 306 NLRB 150, 151, (1992). Makkos’ hostile
statement, coming even before the meeting had been held, would reasonably lead the
employees to assume that their concerted activities had been placed under surveillance.
Respondent thus violated Section 8(a)(1) of the Act. Makkos’ threat to sue Huq personally
because Huq organized a meeting of employees to discuss their working conditions, an activity
protected by the Act, constituted a further violation of Section 8(a)(1). Braun Electric Co., 324
NLRB 1, 4 (1997). Makkos statement informing Huq that he was fired because he had called
fellow employees to a meeting to discuss their employment-related concerns was also a
violation of Section 8(a)(1) of the Act. Benesight, Inc., 337 NLRB 282, 283 (2001).
Finally, I have found that Respondent discharged Huq on May 1, 2005 because he
organized a meeting of employees to discuss wages and working conditions. Makkos’
statements to Huq that he was being fired for calling employees to a meeting constitute proof
that Respondent discharged Huq because he engaged in protected concerted activities.
Although Respondent contends that Huq quit his job the overwhelming evidence shows that this
is not true. The General Counsel has shown that Huq engaged in protected concerted
activities, that Makkos was aware of these activities and that the discharge was motivated by
the protected concerted activities. The General Counsel has shown that Respondent’s
contention that Huq ceased reporting to work is a pretext to conceal the unlawful discharge.
Because Respondent maintains that it did not discharge Huq it offered no evidence that he
would have been discharged even absent his protected concerted activities. Respondent thus
violated Section 8(a)(1) of the Act. Wright Line, 251 NLRB 1083 (1980), enfd 662 F. 2d 899 (1st
Cir. 1981); JCR Hotel, Inc., 338 NLRB 250, 252 (2002).13

13 I give no weight to the Unemployment Insurance decision introduced into evidence by
Respondent. The decision makes clear that many of the witnesses herein did not testify in that
Continued
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I find, based on the testimony of Huq, Haque, Bhuiyan and Khan that the vendors held a
meeting in a Jackson Heights restaurant on Monday May 2, 2005 where they discussed their
working conditions. The subjects under consideration included wages, holidays, breaks,
problems in the office and the fact that the company gave them a hard time in the field. I find,
based on the testimony of Huq and Haque, that Huq told the vendors that he had been fired and
was therefore unable to speak to Makkos about their problems. Huq said it was up to the others
to decide whether to raise the workplace issues with the boss. In the event, the vendors
decided not to fight with Makkos because they had families to consider.
I credit Khan’s testimony that after the May 2nd meeting Makkos did not permit him to
work for several days. I credit Khan that Makkos asked Khan, “Who gave you your job? Who
takes care of your family, why did you go to the meeting with Shaheed? Did Shaheed give you
a job?” Makkos did not deny making the statements that Khan attributed to him. As stated
above, Khan’s testimony is further evidence that Makkos knew of the May 2 meeting and that he
identified Huq as a chief participant. These questions to Khan are further evidence that Makkos
was hostile to Huq’s purpose in calling the meeting.
By telling Khan that he was aware of the meeting and questioning him about it in a
manner that implied a threat to his job Makkos created the impression that the employees’
concerted activities were under surveillance. This was a violation of Section 8(a)(1) of the Act.
Further, the reminder of Makkos’ power to cease employing Khan implied in the question about
who gave Khan his job was a threat of discharge or other reprisal for attending the employees’
meeting. This constituted a further violation of Section 8(a)(1) of the Act. Finally, Makkos’
questioning of Khan constituted an unlawful interrogation and violated Section 8(a)(1) of the Act.
Makkos, the president of Respondent, was clearly hostile to the employees’ purpose in meeting
to discuss their problems and his only stated purpose in asking about the meeting was to
express his disapproval of Khan for attending it.
Prehearing Conduct
I credit Rahaman’s testimony that on July 20, 2006, one week before the instant hearing
was to begin, Makkos asked whether Huq was working for him.14 I credit Rahaman that
Makkos stated “I don’t want to make any trouble with you, so be careful about Shaheedul.”
Makkos intimated that Rahaman’s method of paying Huq was unlawful. After Rahaman assured
Makkos that his method was legal, Makkos said, “Be careful about him.” Rahaman maintained
under cross-examination by Counsel for Respondent that Makkos told him, “I am going to get
into trouble with Shaheed.” I do not credit Makkos’ denials about the substance of this
conversation and I do not credit Makkos that he never mentioned Huq’s name to Rahaman. I
have found Rahaman to be a credible witness and I have found above that Makkos’ testimony
about Huq’s discharge was not accurate. Further, having closely observed Rahaman while he
was testifying, I cannot believe that he would be capable of making up out of whole cloth an
elaborate story such as this which would stand up under cross-examination by Counsel for
Respondent.
Makkos’ statements to Rahaman that Makkos didn’t “want to make any trouble” but that
_________________________
hearing. The credibility determination in that decision was apparently based on the fact that
Huq went to work after he was fired by Respondent. Of course, Huq has a duty to mitigate
back-pay liability and the fact that he was working after May 1, 2005 redounds to his credit.
14 On June 13, 2006 the instant hearing was set down for hearing commencing on July 27.
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Rahaman would get into trouble by employing Huq were a clear attempt to cause Rahaman to
cease hiring Huq as a helper on the pushcart. Thus, Respondent attempted to persuade
Rahaman not to continue employing Huq because Huq had engaged in protected concerted
activities. This was a violation of Section 8(a)(1) of the Act. Steere Broadcasting Corp., 158
NLRB 487, 496 (1966). I also find that Makkos’ statements to Rahaman, just one week before
the instant hearing began, were directly related to the fact that Huq had filed charges with the
National Labor Relations Board and was about to participate in a Board hearing. Thus,
Respondent violated Section 8(a)(4) when it attempted to cause Rahaman to discriminate
against Huq because he filed charges with the Board. Freightway Corp., 299 NLRB 531, 536
(1990).
Conclusions of Law
1. By creating the impression that its employees protected concerted activities were
under surveillance, by threatening to sue employees because they engaged in protected
concerted activities, by coercively interrogating employees concerning their protected concerted
activities and by threatening discharge or other reprisal for engaging in protected concerted
activities, Respondent violated Section 8(a)(1) of the Act.
2. By informing an employee that he was discharged and by discharging an employee
because he engaged in protected concerted activities the Respondent violated Section 8(a)(1)
of the Act.
3. By attempting to cause an employer not to continue employing an employee because
the employee engaged in protected concerted activities the Respondent violated Section 8(a)(1)
of the Act.
4. By attempting to cause an employer not to continue employing an employee because
the employee filed a charge with the National Labor Relations Board and was about to
participate in a Board hearing the Respondent violated Section 8(a)(4) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an employee, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in 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 recommended15

15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, New York One, LLC., New York, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that they are being discharged and discharging them because
they engage in protected concerted activities.
(b) Creating the impression that its employees protected concerted activities are under
surveillance.
(c) Threatening to sue employees because they engage in protected concerted
activities.
(d) Coercively interrogating employees concerning their protected concerted activities.
(e) Threatening employees with discharge or other reprisal for engaging in protected
concerted activities.
(f) Attempting to cause an employer not to continue employing an employee because
the employee filed a charge with the National Labor Relations Board and participated in a Board
hearing and because the employee engaged in protected concerted activities.
(g) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Mohammed Shaheedul Huq
full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Mohammed Shaheedul Huq whole for any loss of earnings and other benefits
suffered as a result of the unlawful acts against him in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in New York City,
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copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
May 1, 2005.
(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.
Dated, Washington, D.C., February 22, 2007.
____________________
Eleanor MacDonald
Administrative Law Judge

16 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-11-07
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge you or threaten to discharge you or inform you that you are being discharged because you engage in
protected concerted activities.
WE WILL NOT create the impression that your protected concerted activities are under surveillance.
WE WILL NOT threaten to sue you because you engage in protected concerted activities.
WE WILL NOT coercively interrogate you about your protected concerted activities.
WE WILL NOT attempt to cause other employers to cease hiring you because you engage in protected concerted activities and
because you file charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by
Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Mohammed Shaheedul Huq full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Mohammed Shaheedul Huq whole for any loss of earnings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful discharge of Mohammed
Shaheedul Huq, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not
be used against him in any way.
New York One, LLC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot
elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find
out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.