North American Enclosures, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 2004

342 N.L.R.B. 39 (N.L.R.B. 2004)

NORTH AMERICAN ENCLOSURES, INC.
342 NLRB No. 4
39
North American Enclosures, Inc. and Local 348-S,
United Food and Commercial Workers Union,
AFL–CIO. Cases 29–CA–25492 and 29–CA–
25550
June 18, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On February 6, 2004, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting 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 brief and has decided to
affirm the judges rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, North American Enclosures,
Inc., Central Islip, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the attached notice for that of the adminis-
trative law judge.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist 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.

1 The Respondent has excepted to some of the judges credibility
findings. The Boards established policy is not to overrule an adminis-
trative law judges credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
WE WILL NOT photograph our employees while they
engage in activities on behalf of Local 348-S United
Food and Commercial Workers Union, AFL–CIO (the
Union), or engage in other protected concerted activities,
without proper justification.
WE WILL NOT threaten our employees with discharge, job
loss, or other reprisals if they support the Union or if they
vote for the Union in an NLRB election.
WE WILL NOT promise our employees wage increases,
or other benefits and improvements in their terms and
conditions of employment, if our employees withdraw
their support from the Union or vote against the Union in
an NLRB election.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.

NORTH AMERICAN ENCLOSURES, INC.

Joanna Piepgrass, Esq., for the General Counsel.
Thomas Bianco, Esq. and David Greenhaus, Esq. (Kaufman,
Schneider & Bianco, LLP), of Jericho, New York, for
the Respondent.
Warren Mangan, Esq. and James Murray, Esq. (OConnor &
Mangan, P.C.), of Long Island City, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by Local 348-S United
Food and Commercial Workers Union, AFL–CIO (the Union or
Local 348), the Regional Director for Region 29, issued an
order consolidating cases, consolidated complaint and notice of
hearing, on August 28, 2003,1 alleging that North American
Enclosures, Inc. (Respondent), violated Section 8(a)(1) of the
Act by engaging in surveillance of its employees union activi-
ties, by threatening employees with termination if they sup-
ported the Union, and by promising employees improved bene-
fits and working conditions if they did not support the Union.
The trial with respect to the above allegations was held be-
fore me in Brooklyn, New York, on October 29, and November
3. The complaint was amended during the course of the trial.2
A brief has been submitted by the Respondent. The General
Counsel submitted a letter in lieu of a formal brief. Based
upon my careful consideration of these documents, as well

1 All dates hereinafter referred are in 2003 unless otherwise indi-
cated.
2 After the close of the trial, pursuant to the previous agreement of
the parties, Respondent requested that certain documents marked as R.
Exhs. 4A–G and 5A–G be received into evidence. The General Coun-
sel stated that it had no objection to the receipt of the material. The
Charging Party has not objected. I therefore receive R. Exhs. 4A–G
and 5A–G into evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40
as the entire record, including the demeanor of the wit-
nesses, I issue the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is a domestic corporation, with its prin-
cipal office located at 65 Jetson Lane, Central Islip, New
York, and with other facilities located at 85 Jetson Lane,
and 973 Motor Parkway, where it is engaged in the manu-
facture, assembly, and wholesale distribution of picture
frames and framed art.
During the past year, Respondent purchased and received
at its New York State facilities supplies and materials val-
ued in excess of $50,000 directly from points located out-
side the State of New York.
It is admitted and I so find that Respondent is and has
been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
It is also admitted and I so find that the Union is and has
been a labor organization within the meaning of Section
2(2) of the Act.
II. PRIOR RELATED CASE—CASE 29–RC–10007
Pursuant to a petition filed by the Union, an election was
held on April 24. A majority of votes were cast for the Union.
Respondent filed objections, and a hearing was held before a
hearing officer of the Region based upon said objections. The
hearing officer recommended that the objections be overruled.
Respondent appealed that decision, and the matter is still pend-
ing before the Board.
III. THE AMENDMENTS
The complaint alleged that on various dates from on or about
April 1 to 22, 2003, Respondent, by Norman Grafstein and
Brian Gibbons, made unlawful threats and promises to employ-
ees in violation of Section 8(a)(1) of the Act.
At the opening of the trial, General Counsel moved to amend
the complaint, to change the date of April 1 to March 25, 2003.
Respondent objected to the amendment which I granted.
In this regard, Respondent notes that in Case 29–CA–25512
filed on April 1, 2003, the Union alleged that Grafstein, at a
meeting on March 25, 2003, promised employees a wage in-
crease if they voted no regarding union representation. This
charge was withdrawn by the Union, and approved by the Re-
gional Director on May 6. Similarly in Case 29–CA–25528,
filed on April 9, 2003, the Union filed charges, alleging the
identical conduct, as in Case 29–CA–25512. The Regional
Director approved the withdrawal of this charge on July 28,
2003.
Notably, the amended charge in Case 29–CA–25492 filed on
July 16, 2003, alleges that Respondent by its managers, super-
visors, and agents, has engaged in threats of discharge and
other forms of reprisal against its employees due to their sup-
port for the Union, and made promises of improved benefits
and working conditions if the unit employees withheld their
support for the Union.
Respondent relying on Winer Motors, Inc., 265 NLRB 1457,
1458–1459 (1982), asserts that the amendments should not
have been permitted, since the withdrawn charges allege that
Respondent engaged in the same conduct, making specific ref-
erence to March 25, 2003. Thus Respondent contends, that the
amendment is barred by Section 10(b) of the Act. Moreover, it
also argues that the amendment was not “just,” since Respon-
dent was “sand bagged” by the late amendment. New York
Post Corp., 283 NLRB 430, 431 (1987). I disagree with Re-
spondents contentions, and reaffirm my ruling to permit the
amendment.
Although Winer Motors precludes the reinstatement of a
previously withdrawn charge, that holding is not dispositive
here, since unlike Winer Motors, the still existent charges are
sufficient to warrant the granting of the amendments. Thus the
amended charge which has not been withdrawn, alleges unlaw-
ful threats to discharge and promises of benefit by Respondent.
Although this charge does not refer to a specific date that these
events occurred, that omission is not consequential. The
amendment to the complaint, merely changed the starting date
of the incidents from April 1 to March 25. Clearly the amend-
ment is encompassed by the amended charge, and under the
Boards standards in Redd-I, Inc., 298 NLRB 1115 (1988), is
closely related to the amended charge. Pioneer Hotel & Gam-
bling Hall, 324 NLRB 918 fn. 1 (1997); NLRB v. CWI of Mary-
land, 127 F.3d 319, 327–328 (4th Cir. 1997).
Further, Respondents contention that the granting of the
amendment was “unjust,” due to its lateness, is also without
merit. To the extent that Respondent argues that it was “sand
bagged,” and unprepared to defend against any allegation of
unlawful conduct on March 25, I informed Respondent when I
granted the amendment that if Respondent needed additional
time to prepare its case after the General Counsel presented its
evidence, I would grant it an adjournment for this purpose.
Further Respondent was granted a 5-day adjournment, after the
General Counsel completed its case, to prepare its case, during
which it had ample time to meet the amended allegations. Thus
Respondent failed to show that it was prejudiced in any way by
my granting the General Counsels motion to amend the com-
plaint. Childrens Mercy Hospital, 311 NLRB 204 fn. 2 (1993);
Carpenters Local 35 (Construction Employers Assn.), 317
NLRB 18 (1995).
I also note in this regard that Respondent did in fact call a
witness to respond to the allegations dealing with the events of
March 25.
General Counsel also moved to amend the complaint, on the
second day of the hearing, by adding an additional supervisor
and agent, Nick Buelna to the complaint allegation of unlawful
surveillance. The complaint alleged that on or about April 2,
Respondent engaged in video and photographic surveillance of
its employees by Norman and Steven Grafstein.
On the first day of the hearing, October 29, 2003, a witness
Yessinia Maraber testified about seeing a individual she de-
scribed as “Mexican,” who was with the Respondents presi-
dent, Norman Grafstein, and who on April 2, was taking pic-
tures of employees, talking with union representatives, and that
the Mexican also took a picture of her, while she was talking to
union representatives.
NORTH AMERICAN ENCLOSURES, INC. 41
After she was cross-examined by Respondent about that, as
well as other portions of her testimony, the Charging Party called
Jose Merced, a union representative to the stand. Merced was
asked if he could identify the “Mexican” individual described by
Maraber in her testimony. Merced testified that he knew the
individual to be Nick Buelna as a vice president of Respondent.
He further asserted that he believed Buelna to be the person de-
scribed by Maraber in her testimony, since he is the only “Mexi-
can” official of Respondent that was present at the facility during
the organizing drive on a regular basis.
Respondent objected to any testimony about Buelna, in part
because the complaint made no reference to him, and that the
testimony is time barred. I allowed the testimony to remain on
the record, but indicated that I had serious concerns about the
fact that the complaint did not include any allegation concern-
ing Buelnas status or conduct. I noted that since there was
testimony that Grafstein, an admitted agent was present when
the pictures were taken by Buelna, that could be sufficient to
hold Respondent responsible for Buelnas picture taking. At
that time Charging Party introduced into the record a tape re-
cording of certain events, which among other things showed an
individual, alleged to be Buelna at the facility with Grafstein.
After an off the record discussion, I granted Respondents re-
quest for an adjournment from October 29 to November 3, in
order to prepare its case, and to examine the tape recording
introduced by the Charging Party.
At the beginning of the resumption of the trial on November
3, the General Counsel moved to amend the complaint to name
Buelna as an agent of Respondent and as having engaged in
photographic surveillance.3
Respondent objected to the amendment, pointing out among
other reasons, that Buelna is in California, and not available as
a witness. Respondent also argued that General Counsel knew
about the incident since April, when Maraber furnished her
affidavit.
In that connection, the affidavit of Maraber dated April 3, re-
ferred to the incident of April 2, and described a “Mexican”
person who she did not know walking around with Grafstein
and stated that she observed this person take pictures of union
reps talking with workers, and then this same person 15 min-
utes later took a picture of her as she stopped to talk with union
representatives.
The General Counsel explained that it did not move to
amend the complaint earlier, because it did not know the iden-
tity of the person, until the trial, when Merced the union repre-
sentative was able to piece together Marabers testimony, the
tape, and his own observations, to conclude that the individual
Maraber testified about was Nick Buelna.
I granted the motion to amend the complaint, but informed
Respondent that I would grant it an adjournment, if Respondent
deems it necessary, to arrange to bring in Buelna to testify.
The trial proceeded. General Counsel completed its case and
rested. Respondent called its only witness Kimberly Rodri-
quez, its human resources manager. After completing the tes-

3 General Counsel had notified Respondent on Friday afternoon, Oc-
tober 31, that it had intended to amend the complaint when the trial
resumed on November 3.
timony of this witness, Respondent decided not to request an
adjournment to call Buelna as a witness. Instead, the record
was left open to receive documentary evidence from Respon-
dents files with regard to Buelnas travel records. These docu-
ments, as noted, were submitted and received into the record.
Respondent argues that since the General Counsel knew
about the incident involving Buelna in April, and waited until
the trial in November, to amend, this unexplained delay re-
quires that the amendment be denied. Consolidated Printers
Inc., 305 NLRB 1061, 1063–1064 (1992). Respondent further
asserts that it was prejudiced by the late amendment, since
Buelna was in California, and not easily accessible. New York
Post, supra.
Once again, I disagree with Respondents contentions, and
shall reaffirm my ruling permitting this amendment as well.
Contrary to Respondents argument, unlike Consolidated
Printers and New York Post, the General Counsel did explain
its delay in not amending the complaint earlier. Although if
Respondent knew about the incident from Marabers affidavit of
April 2, the affidavit did not identity Buelna, nor did it discuss
his status, other than that she saw him with Grafstein. Further,
it was not until the trial, when Merced with the assistance of the
tape recording and Marabers testimony, was able to identify
Buelna by name and title. I find this to be a reasonable expla-
nation for the late amendments.
Furthermore, also unlike New York Post and Consolidated
Printers, the amended allegations are identical to the allega-
tions in the complaint, except for the addition of a new agent.
Thus in New York Post, the amendment added an allegation of
unreasonable delay to the complaint allegation of refusal to
supply information. In Consolidated Printers, the General
Counsel sought to amend the complaint to allege that a portion
of Respondents defense, i.e., that it had delayed implementation
of the layoffs until the Board election balloting was conducted
violating Section 8(a)(3). Both of these amendments, unlike
the present case, were granted at the close of the trial, after all
the evidence was presented, and involved significantly different
allegations than the initial complaint. This was deemed to be
prejudicial to the Respondents in those cases.
Here, no such prejudice has been demonstrated. The amend-
ment was granted before Respondent presented its case, and it
involved the identical allegation as in the complaint, albeit
involving a different agent. Respondents contention that it was
prejudiced by the fact that Buelna was in California at the time
and inaccessible is without merit. I informed Respondent when
I granted the amendment, over its objection, based in part in
Buelnas absence, that I would grant it an adjournment to enable
it to bring in Buelna to testify, if it so desired. Respondent
opted not to do so, and decided to introduce documentary evi-
dence with respect to Buelnas travel records instead. In these
circumstances, Respondent had failed to show that it was
prejudiced in any way by not granting of General Counsels
motion to amend the complaint. Childrens Mercy Hospital,
supra; Local 35 Carpenters (Construction Employers Assn.),
supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 42
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Surveillance
1. Facts
Employee Yessenia Maraber testified that on April 2, as she
was leaving work, she saw an individual who she described as a
“Mexican,” with brown hair, a moustache, and wearing a pin
with a Mexican flag, and who spoke Mexican. She observed
him walking outside the facility with Norman Grafstein and
Brian Gibbons. She further testified that she saw the “Mexi-
can.”4 She observed the Mexican taking pictures of employees
talking with Union representatives Dennis and Anthony. The
employees and union representatives were across the street
from Respondents premises. The Mexican was standing about
seven feet away from the employees and the union representa-
tives when Maraber asserts that she saw him taking pictures
with a camera.
Maraber further testified that she observed these events from
the parking lot, and several minutes later, she drove her car to
the area where the union representatives were standing. She
then began to converse with the union representatives, and
noticed that the “Mexican” pointed a camera with a “flash” at
her, while she was speaking with them.
In her affidavit, which was signed on April 3, although she
recounted the events concerning the incident with the “Mexi-
can” taking pictures of her and other employees talking with
union representatives, the affidavit did not reflect that Grafstein
or Gibbons were present with the Mexican at that time.
Maraber was asked about that omission from her affidavit, and
claimed that she did not remember it at the time and did not
mention the fact of their presence when she furnished her affi-
davit.
Merced testified that based on his having heard Marabers de-
scription of the Mexican, and his reviewing of a videotape
taken by the union on April 22, he was able to identify the
“Mexican” as Nick Buelna, who he knew to be a vice president
of Respondent, who worked at its Los Angeles facility. The
videotape in question was introduced into evidence, and was
played at the trial. Maraber, after viewing the tape, identified
the “Mexican” about whom she had testified earlier, as a person
shown on the tape on several occasions, including one standing
next to Grafstein. Merced after viewing the tape, identified this
individual as Buelna.
As noted Respondent did not call Buelna as a witness, al-
though it was given the opportunity to request an adjournment
in order to bring him in from Los Angeles to testify. Instead, it
chose to rely on documents from Respondents records of travel
for its officials. These documents demonstrate that Buelna
arrived by plane in New York from Long Beach, California, on
Monday, March 24, at 5:30 p.m., and that he returned to Long
Beach, California, on Wednesday, March 26, on a 4:20 p.m.
flight. The records also reflect that Buelna returned to New

4 She also testified that she had seen the Mexican previously at the
facility, and described him as “a guy who is always with Norman
[Grafstein].”
York by plane on Monday, April 21, at 5:30 p.m., and left for
Long Beach on April 25, on an 11:20 a.m. flight.
Respondent as noted did not call Buelna as a witness. Nor
did it call any other witness to testify about these records. Sig-
nificantly, no evidence was presented that these were the only
travel records Respondent had which reflected Buelnas travel
or that Buelna was not or could not have been in New York on
April 2, without having been reimbursed by Respondent for the
travel.
Testimony was also offered by Merced that on April 22, he
observed Thomas Bianco, Respondents attorney, in the pres-
ence of Norman Grafstein, taking pictures of employees and
union representatives during the course of a rally5 conducted by
the Union across the street from Respondents facility. Accord-
ing to Merced, Bianco was using a digital camera, and was
standing 50 feet away from the employees, when he saw Bi-
anco point the camera towards employees and saw a flash go
off.
Neither Bianco nor Norman Grafstein testified in this pro-
ceeding. While the complaint alleges that Respondent by Ste-
ven Grafstein engaged in photographic surveillance on various
dates, no evidence was adduced concerning Steven Grafsteins
activities on these or any other dates.
2. Analysis and Conclusions
It is well settled that absent proper justification, the photo-
graphing of employees engaging in union activities tends to
create fear among employees of future reprisals and reasonably
tends to interfere with protected activity in violation of Section
8(a)(1) of the Act. National Steel & Shipbuilding Co., 314
NLRB 499 (1995), enfd. 156 F.3d 1268, 1271 (D.C. Cir. 1998);
Casa San Miguel, 320 NLRB 534, 538 (1995); Rainbow Gar-
ment Contracting, 314 NLRB 929, 937 (1994); Farm Fresh
Inc., 305 NLRB 887, 890 (1991).
Proper justification for the photographing can be established,
where the Employer demonstrates that it had a reasonable basis
to have anticipated misconduct by the employees who were
engaging in the protected conduct. National Steel & Shipbuild-
ing, supra. The mere belief that something might happen does
not justify the employers conduct when balanced against the
tendency of that conduct to interfere with employees right to
engage in concerted activity. Id. at 499; F. W. Woolworth Co.,
310 NLRB 1193 (1993).
Applying these principles to the above facts, I conclude that
the credible evidence establishes that Respondent violated the
Act by the conduct of Buelna in photographing employees en-
gaging in protected activities.
I find contrary to the contentions of Respondent, that the tes-
timony of Maraber was credible and in conjunction with the
testimony of Merced supplemented by the tape submitted by
the Union, establishes that Buelna was in fact the “Mexican”
who Maraber testified had taken pictures of employees includ-
ing herself, talking to representatives of the Union.
I found Maraber to be a believable and candid witness.
While her testimony about the date of the incident as April 2,
may not be accurate, I find this possible discrepancy to be in-

5 The rally was 2 days before the election.
NORTH AMERICAN ENCLOSURES, INC. 43
consequential, and conclude that Buelna did in fact take the
photographs as she testified of employees talking to representa-
tives of the Union.
Respondent in this regard emphasizes the fact that the re-
cords submitted by it establish that Buelna was not in New
York on April 2. Therefore, it argues that Marabers testimony
should be discredited entirely, in effect asserting that her testi-
mony was a total fabrication. I cannot agree.
First of all, I note that although Respondent did submit evi-
dence that Buelna was in New York from March 24–26, and
again in late April, that evidence did not preclude a finding that
he was in New York on other dates, including April 2, the date
testified to by Maraber. Indeed Buelna may have come to New
York by some means other than travel paid for by Respondent.
Further although Respondent submitted the travel records as
described above, there was no testimony in the record, that
Respondent did not have other travel records which it did not
submit, which may have shown that Buelna was in New York
on April 2.
Most importantly of all, Respondent did not call Buelna as a
witness to testify either that he was not in New York on April
2, or that he did not take photographs of employees on any
other dates. In these circumstances, it is appropriate to draw an
adverse inference against Respondent, for its failure to call
Buelna as a witness, and conclude which I do, that if called,
Buelna would have testified adversely to Respondent on these
issues. International Automated Machines, Inc., 285 NLRB
1122, 1123 (1987); Jordan Marsh Stores, 317 NLRB 460, 468,
475 (1995); United Parcel Service of Ohio, 321 NLRB 300 fn.
1 (1996); Redwood Empire Inc., 296 NLRB 369, 382 (1989);
Property Resources Corp. v. NLRB, 863 F.2d 964 (D.C. Cir
1988).
Accordingly, based on the above analysis I find that
Marabers credible testimony establishes that Buelna photo-
graphed employees engaged in protected concerted activities.
Since Respondent has offered no evidence of any justification
or reason for its photographing of its employees, it follows that
it has thereby violated Section 8(a)(1) of the Act. I so find.
National Steel v. Shipbuilding, supra.
The complaint also alleges that Respondent engaged in
unlawful photographic surveillance by the conduct of Norman
and Steven Grafstein. Since no evidence was adduced that
Steven Grafstein engaged in any conduct whatsoever, the com-
plaint allegation with respect to him must be dismissed. With
respect to Norman Grafstein, the evidence discloses that he was
present when Respondents attorney, Thomas Bianco, photo-
graphed employees at a union rally on April 22. It could be
argued that Respondent is therefore responsible for Biancos
conduct, due to Grafsteins presence. However, the General
Counsel specifically disclaimed that it was asserting that Bi-
anco was an agent of Respondent when he photographed em-
ployees, and has made no contention that Grafsteins presence
when Bianco photographed employees, makes Respondent
responsible for such activity. Therefore I shall also recommend
dismissal of this complaint allegation with respect to Norman
Grafstein.6
B. Threats and Promises
1. Facts
On March 25, Respondent conducted captive audience meet-
ings of employees during which Norman Grafstein discussed
the Union and the upcoming election. Grafstein read from
cards during his speeches, but at times he would deviate from
reading the cards, stop reading from the cards and make com-
ments to the assembled employees. Grafstein conducted meet-
ings both in the afternoon starting at 3 p.m., and in the evening
for the night shift.
During the day-shift meeting, Grafstein used Supervisor
Patricia Ortiz to translate into Spanish his comments to the
employees. During the night-shift meetings, Grafstein used
two employees Thomas Rivera (Silencio) and an employee
named William __________ to assist in the translation process.
At both meetings employees were given the opportunity to
ask questions and some of them did so. At both meetings Graf-
stein discussed with the employees the election process, and
that an election was scheduled for April 24. He urged everyone
to vote, and told them that Respondent was required to provide
to the Union the names and addresses of employees, as part of
the election process. He added that he was sorry if anyone was
offended by that, if they didnt want to be contacted. Grafstein
also talked about how competitive the industry was and that
Respondent was competing with China, Vietnam, and Thailand.
He also stated that he was proud of the fact that the benefits
received by the employees were good including health benefits.
Grafstein also told employees that he had investigated the
Union, and found out that it was run by the Fazio family, and
that four members of the family received a salary of more than
$481,000 from the Union last year. He added that the Fazio
family were members of the “mafia,” and asked “how do you
feel about another family controlling your future”?
Grafstein informed the employees that he didnt think that the
employees needed a union and that the Union was “no good”
for the employees. Grafstein added the employees did not need
a Union to talk to Respondent and that if they wanted they had
an open forum.
Grafstein also informed the employees that if the Union won,
raises would not be automatic, and that it was a long process.
Employees asked questions about whether Wayne and
Jackie, two supervisors who had been terminated would be
coming back after the election. Apparently there had been
complaints from employees about these supervisors, and as a
result, Respondent terminated them. A rumor had surfaced in
the shop, that Respondent had “stored these supervisors in Cali-
fornia,” and that after the election they would be returning.
Grafstein assured the employees that this rumor was not cor-
rect, and that neither Wayne nor Jackie would be returning.

6 I note that even if it were found that Norman Grafsteins conduct of
being present when Bianco took photographs of employees makes
Respondent responsible for such conduct, such a finding would be
cumulative, in view of my prior findings concerning Buelnas conduct,
and would have no effect on the remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44
Employees also mentioned that Wayne had previously prom-
ised them wage increases, in the past, and such raises were not
received, so why should the employees believe Grafstein when
he tells them that things would “change” in the company. Graf-
stein replied that the big change in the company would be that
employees would have an open forum to communicate with
management directly.
While at one point at both meetings, Grafstein did tell em-
ployees that he could not make any promises, during the meet-
ing on the day shift, Grafstein put down his cards and told em-
ployees “if you vote no for the Union, we will give you more
money,” and “if you vote yes for the Union, you will get fired.”
At one point during the evening-shift meeting, Grafstein in-
formed the employees that if the Union gets in, the employees
would lose their jobs.
The above findings with respect to the statements made by
Grafstein at the meetings of March 25, is based on a compila-
tion of the credited portions of the testimony of Maraber, em-
ployee Evilio Ramires, and Kimberly Rodriguez, Respondents
director of human resources, who was Respondents only wit-
ness.
I have credited the testimony of Maraber and Ramirez that
Grafstein made the comments about job loss and discharge as
described above, since their testimony on this subject is mutu-
ally corroborative. I also found Maraber to be particularly
credible, since she was able to testify in English about the
words used by Grafstein in these meetings, as well as in Span-
ish through the translator.
I also place significant reliance on the failure of Respondent
to call Grafstein as a witness to deny or explain these state-
ments. It is particularly appropriate to draw an adverse infer-
ence against Respondent here, where it has not called the per-
son who actually made the alleged statements concerning the
Union. Redwood Empire Inc., 296 NLRB 369 fn. 1 (1989);
International Automated Machines, supra.
Although Respondent did call Rodriguez who was present at
the meetings to deny the testimony of the employees, I note that
Rodriguez could not be certain that Grafstein did not deviate
from reading from cards during the meetings, and Respondent
did not introduce into the record the cards that Grafstein read
from throughout the meetings. More importantly, it was Graf-
stein who made the statements, and the failure to call him as a
witness, without an explanation leads to the drawing of an ad-
verse inference against Respondent, as I have detailed above.
The fact that Respondent produced another witness to the meet-
ings is insufficient to overcome that adverse inference, particu-
larly where as I have explained, I found the testimony of the
employees to be credible. Further, the Board has held that the
production of weaker evidence where stronger evidence is
available leads to an adverse inference to the producer of the
weaker evidence. Jennie-0-Foods Inc., 301 NLRB 305, 333
(1991); Automobile Workers (Gyrodyne Co.) v. NLRB, 459
F.2d 1329 (D.C. Cir. 1972). Thus, the calling of Rodriguez,
rather than Grafstein, also calls for an adverse inference against
Respondent. Jennie-0-Foods, supra.7

7 Moreover, it would even be appropriate for me to draw an adverse
inference against Respondent for its failure to call as witness Ortiz,
2. Analysis and Conclusions
Based upon my findings described above, I have found that
at the meetings of March 25, Respondent by Grafstein, told
employees that if the Union gets in or if they vote for the Un-
ion, they would lose their jobs or get fired. These statements
are clearly unlawful threats of loss of employment and are vio-
lative of Section 8(a)(1) of the Act. Feldkamp Enterprises, 323
NLRB 1193 (1997); Sunnyside Home Care, 308 NLRB 346,
347 fn. 1 (1992).
I have also found that during the day-shift meeting, Grafstein
told employees that they would get more money if they voted
against the Union. These comments are also clearly unlawful
promises of benefits in violation of Section of 8(a)(1) of the
Act. Shen Automotive Dealership Group, 321 NLRB 586, 591
(1996); Beverly Enterprises, 322 NLRB 334, 344 (1996);
Cummins Component Plant, 259 NLRB 456, 460 (1989).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By photographing its employees while they engaged in
protected concerted activities, threatening its employees with
discharge and job loss if they support or vote for the Union in
an NLRB election, and by promising its employees wage in-
creases if they withdraw their support for the Union or vote
against the Union in an NLRB election, Respondent has vio-
lated Section 8(a)(1) of the Act.
4. The above described unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Based upon the foregoing findings of fact and conclusions of
law and based upon the entire record, I issue the following
recommended8
ORDER
The Respondent, North American Enclosures, Inc., Central Is-
lip, New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Photographing its employees while they engage in activi-
ties on behalf of Local 348-S United Food and Commercial
Workers Union, AFL–CIO (the Union), or engage in other
protected concerted activities, without proper justification.
(b) Threatening its employees with discharge, job loss or
other reprisals, if they support the Union or if they vote for the
Union in an NLRB election.
(c) Promising its employees wage increases, or other benefits
and improvements in their terms and conditions of employ-

William, and Rivera, whom it used as interpreters at the meetings.
Grimmway Farms, 314 NLRB 73 fn. 2 (1994). However, I find it
unnecessary to do so in these circumstances, since the adverse advert-
ence for the failure to call Grafstein is more than sufficient to support
my credibility findings as described above.
8 If no exceptions are filed as provided by Sec. 102.46 of the Boards
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.
NORTH AMERICAN ENCLOSURES, INC. 45
ment, if said employees withdraw their support from the Union
in an NLRB election.
(d) 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) Within 14 days after service by the Region, post at its fa-
cility in Central Islip, New York, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by

9 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.”
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 March 25, 2003.
(b) 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.