North Hills Office Services, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 2005

344 N.L.R.B. 1083 (N.L.R.B. 2005)

NORTH HILLS OFFICE SERVICES
344 NLRB No. 134
1083
North Hills Office Services, Inc. and Service Employ-
ees International Union, Local 32B-J, AFL–
CIO. Cases 29–CA–25715, 29–CA–25716, 29–
CA–25717, 29–CA–25752, 29–CA–25929
July 13, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 15, 2004, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and a supporting
brief to which the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1

1 During the hearing, employee Balmore Guevara testified on direct
examination regarding work authorization paperwork he submitted to
the Respondent. During the Respondent’s cross-examination of
Guevara about those documents, the Charging Party’s attorney objected
to the relevancy of the questions and advised Guevara not to answer
potentially incriminating questions about his work authorization papers.
Guevara then declined to answer further questions. The Respondent
then moved to strike the entirety of Guevara’s direct testimony, arguing
that Guevara’s testimony should be stricken because he failed to answer
cross-examination questions within the scope of his direct testimony.
The Respondent also argued that Guevara had waived his Fifth
amendment privilege against self-incrimination by submitting an affi-
davit concerning his work authorization paperwork during the investi-
gation stage of the case to the Board and by testifying about those
documents while on direct examination. The judge did not rule on the
Respondent’s motion either during the hearing or in his decision. The
Respondent excepted to the judge’s failure to do so.
In adopting the judge’s findings of violations in this case, we disre-
gard Guevara’s testimony because it is not necessary to support those
violations. The credited testimony, documentary and circumstantial
evidence present in the record are sufficient to support our findings of
violations even absent Guevara’s testimony. Thus, it is not necessary to
reach the issues presented by the Respondent’s motion.
We note that Sec. 102.31(c) of the Board’s Rules and Regulations
sets forth the procedures parties should employ when a witness either
has refused or is expected to refuse to testify or provide other informa-
tion on the basis of the Fifth amendment privilege against self-
incrimination.
findings,2 and conclusions and to adopt the recom-
mended Order as modified and set forth in full below.3
1. The judge found, and we agree for the reasons set
forth in his decision, that the Respondent violated Sec-
tion 8(a)(1) of the Act when:
field supervisor José Herrera, during the first week of
May 2003,4 directed employee Pilar Gutierrez not to
speak with Union organizers;
Vice President Tom Pellegrino, during a mandatory
meeting on May 8, coercively interrogated employees
about their Union activities,5 solicited employee griev-
ances, and promised employees benefits for not sup-
porting the Union;
Herrera and Operations Manager Eddie Matos, for dis-
criminatory reasons, demanded that employee José
Labrador provide them with copies of his birth certifi-
cate and social security card on June 12;
two of the Respondent’s supervisors engaged in sur-
veillance of employees’ Union activities at a local res-
taurant on June 13;6

2 The Respondent excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance 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.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001). We
shall also modify the judge’s recommended Order to provide the af-
firmative requirement that the Respondent remove from its records any
references to the unlawful warnings and discharge of Guevara. Sterling
Sugars, 261 NLRB 472 (1982). We shall also modify the judge’s rec-
ommended Order to conform it to the Board’s usual remedial provi-
sions for the violations found herein and additionally substitute a new
notice to conform it to the language of the Order.
4 All dates refer to 2003 unless otherwise indicated.
5 In light of this finding, we find it find it unnecessary to pass on the
allegation that, during the first week of May, Herrera coercively inter-
rogated Gutierrez about whether she (Gutierrez) had given contact
information to the Union. Such a finding would be cumulative of this
violation and would not materially affect the remedy.
Chairman Battista and Member Schaumber agree that Pellegrino’s
questioning of employees was unlawful, under all the circumstances.
They do not rely on the judge’s finding that the questioning was inher-
ently coercive.
6 In making this finding, the judge relied on an adverse inference
against the Respondent for its failure to call Building Supervisor
Ronnie Hernandez, who was present outside of the restaurant where the
union meeting took place, to testify and corroborate Herrera’s testi-
mony concerning the reason for the supervisors’ presence. We do not
rely on the judge’s adverse inference in adopting his finding of a viola-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
Matos, during a mandatory employee meeting on June
16, coercively interrogated employees about their Un-
ion activities,7 created an impression of surveillance,
threatened employees with futility for supporting the
Union,8 and impliedly threatened employees with job
loss for supporting the Union;
Herrera demanded that employee Balmore Guevara
present work authorization papers to him on June 24;
it created an impression of surveillance9 and threatened
job loss in its July 1 newsletter, “Plain Talk”;10 and
when
Matos impliedly threatened Gutierrez with bodily harm
on July 1 because of her Union activities.
2. The judge found, and we agree for the reasons set
forth in his decision, that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act when:
it discharged Gutierrez on July 1;11

tion because the credited testimony regarding this allegation is suffi-
cient to support a finding that the supervisors were present to observe
the union meeting.
We find it unnecessary to pass on any implication in the judge’s de-
cision that drawing such an inference here is mandatory. See, e.g.,
McCormick on Evidence at § 272 (3d ed. 1984) (stating that adverse
inference may be drawn in these circumstances).
7 Chairman Battista and Member Schaumber agree that Matos’ ques-
tioning of employees was unlawful under all the circumstances and
would not rely on the judge’s finding that the questioning was inher-
ently coercive.
8 In light of this finding, we find it unnecessary to pass on the allega-
tion that Pellegrino unlawfully threatened employees with futility for
supporting the Union on May 8. Such a finding would be cumulative of
this violation and would not materially affect the remedy.
9 Member Schaumber does not pass on whether the “Plain Talk”
newsletter created an impression of surveillance because such a finding
would be cumulative of other violations found and would not materially
affect the remedy.
10 Chairman Battista and Member Schaumber do not rely on any im-
plication in the judge’s decision that the Respondent violated Sec.
8(a)(1) by issuing its September 22 “Plain Talk” newsletter. The con-
solidated complaint did not allege that letter to be a violation of the Act.
Additionally, Chairman Battista and Member Schaumber find it unnec-
essary to pass on the judge’s comments that this letter demonstrated the
Respondent’s animus towards the Union.
11 On July 1, Pellegrino told Gutierrez that she was being discharged
because she had endorsed and deposited another employee’s paycheck
in her account. The Respondent reinstated Gutierrez on July 2 and,
among other things, told her that the issue with the paychecks had been
investigated and “there was nothing against her.” The judge found that
the Respondent had not effectively repudiated the unfair labor practice
as required by Passavant Memorial Hospital, 237 NLRB 138 (1978).
Without necessarily agreeing with all the elements of Passavant, Chair-
man Battista and Member Schaumber agree that the Respondent’s
conduct failed to effectively repudiate its unlawful discharge of
Gutierrez.
Herrera issued Guevara a written warning on June 24
regarding his work performance12 and discharged him
on July 3;
Matos issued Labrador a written warning for being late
to work on or about June 23;13
Herrera issued Labrador a written warning on June 24
for talking to co-workers while standing outside of the
supply closet and suspended him later that evening; and
when
it issued Labrador a written warning on August 1.
3. Finally, we reverse the unfair labor practice finding
made by the judge regarding the Respondent’s alleged
reduction of its July 1 discharge of Gutierrez to a verbal
warning. As noted above, the Respondent reinstated
Gutierrez on July 2. Upon Gutierrez’ return to work,
Pellegrino said “there was nothing against her.” Pelle-
grino also said that he wanted Gutierrez to continue
working and that she was a good employee. Matos then
apologized for discharging Gutierrez the evening before
and said that he did not realize he was required to give
notices or warnings before he could discharge her.

12 In adopting the judge’s finding that the warning violated Sec.
8(a)(3), Chairman Battista and Member Schaumber do not rely on the
adverse inference drawn by the judge against the Respondent for its
failure to call Guevara’s immediate supervisor to testify concerning the
written warning. They rely on the following: The credited evidence
indicates that the warning was issued without any prior verbal warn-
ings, in violation of the Respondent’s policy requiring that verbal warn-
ings precede any written warning for poor performance. Mindy Levy,
Respondent’s controller, testified that supervisors always speak to an
employee about performance problems before issuing a written warn-
ing. Although not mentioned by the judge in his decision, Levy also
testified that the Respondent had a practice of referring to prior warn-
ings in a subsequent written warning, if the supervisor was aware of
any. Other written warnings, including warnings issued by Herrera,
reflect this practice. The written warning issued to Guevara does not
mention any prior verbal warnings. This evidence is sufficient to sup-
port the judge’s finding that Guevara did not receive prior verbal warn-
ings, and his finding that the written warning was pretextual, without
regard to the adverse inference drawn by the judge.
Member Liebman would additionally rely on the timing of
Guevara’s warning and the numerous other found violations that evi-
dence the Respondent’s significant antiunion animus.
13 In making this finding, the judge credited Labrador’s testimony
that he received a warning on June 23. Labrador also credibly testified
that he had not seen the written warning, which was dated June 18,
prior to the hearing.
The judge also relied on an adverse inference against the Respondent
for its failure to produce sign-in sheets from the security station in the
building where Labrador worked. The sign-in sheets, however, were
not under the control of the Respondent, and when it attempted to ob-
tain them, it was told that the documents no longer existed. Conse-
quently, we do not rely on the judge’s adverse inference, because draw-
ing one in these circumstances is not appropriate. Cf. Champ Corp.,
291 NLRB 803, 803–804 (1988), enfd. 933 F.2d 688 (9th Cir. 1990)
(adopting judge’s decision to not draw adverse inference where docu-
ments not in existence).
NORTH HILLS OFFICE SERVICES 1085
The judge found that Matos’ statement about having to
give Gutierrez notices or warnings before he could dis-
charge her indicated to Gutierrez that her discharge was
being reduced to a verbal warning. We disagree. Matos’
restatement of the Respondent’s discipline policies can-
not reasonably be construed as a verbal warning in light
of Pellegrino’s contemporaneous statement to Gutierrez
that “there was nothing against her.” Accordingly, we
shall dismiss this complaint allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, North
Hills Office Services, Inc., Woodbury, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees, suspending its employ-
ees, issuing its employees warnings or imposing any
other discipline in order to discourage its employees’
membership in, or activities on behalf of, Service Em-
ployees International Union, Local 32B-J, AFL–CIO,
herein the Union, or any other labor organization.
(b) Demanding that its employees provide birth certifi-
cates, social security cards or any other documents estab-
lishing that they are legally entitled to work in the United
States solely to discourage their membership in, or ac-
tivities on behalf of the Union, or any other labor organi-
zation.
(c) Impliedly threatening to discharge its employees,
or threatening to harm them, or in any other manner
threatening them in order to discourage its employees’
support for, or their membership in, or activities on be-
half of the Union, or any other labor organization.
(d) Coercively interrogating its employees about their
activities on behalf of or their attendance at meetings
held by the Union, or any other labor organization.
(e) Surveilling its employees or giving the impression
of surveillance of their activities on behalf of the Union,
or any other labor organization.
(f) Soliciting its employees’ grievances and promising
to remedy them in order to discourage their support for
the Union or any other labor organization.
(g) Directing its employees not to speak to representa-
tives of the Union, or any other labor organization.
(h) Threatening its employees that choosing the Union
or any other labor organization as their collective-
bargaining representative would be futile.
(i) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed 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 this Order, remove
from its files any reference to Pilar Gutierrez’ discharge
on July 1, 2003, and within 3 days thereafter notify her in
writing that this has been done and that the discharge will
not be used against her in any way.
(b) Within 14 days from the date of this Order, remove
from its files any reference to Balmore Guevara’s warn-
ing on June 24, 2003, and his discharge on July 3, 2003,
and within 3 days thereafter notify him in writing that
this has been done and that the warning and discharge
will not be used against him in any way.
(c) Make whole José Labrador for his unlawful sus-
pension, in the manner set forth in the remedy section of
the judge’s decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to José Labrador’s suspension
on June 24, 2003, and the warnings issued to him on
June 23, 24, and August 1, 2003, and within 3 days
thereafter notify him in writing that this has been done
and that the suspension and warnings will not be used
against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its principal office and place of business located at 244
Crossways Park Drive West, Woodbury, New York; and
at its other facilities located at 265 Broad Hollow Road,
425 Broad Hollow Road and 445 Broad Hollow Road,
copies of the attached Notice marked “Appendix”14 in
both English and Spanish. Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent 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

14 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 BOARD1086
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since the first week of May
2003.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
It is further ordered that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically
found.
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.
WE WILL NOT fire you, suspend you, issue you warn-
ings, or impose any other discipline upon you to discour-
age your membership in or activities on behalf of Service
Employees International Union, Local 32B-J, AFL–CIO,
or any other labor organization.
WE WILL NOT demand that you provide us with birth
certificates, social security cards, or any other documents
establishing that you are legally entitled to work in the
United States solely to discourage membership in or ac-
tivities on behalf of the Union or any other labor organi-
zation.
WE WILL NOT impliedly threaten to fire you or threaten
to harm you or in any manner threaten you in order to
discourage your support for, or membership in, or activi-
ties on behalf of the Union, or any other labor organiza-
tion.
WE WILL NOT coercively interrogate you about your ac-
tivities on behalf of or your attendance at meetings held
by the Union, or any other labor organization.
WE WILL NOT spy on you or give you the impression
that we are spying on your activities on behalf of the
Union, or any other labor organization.
WE WILL NOT ask you to tell us about complaints you
have concerning your job and promise to remedy them in
order to discourage your support for the Union, or any
other labor organization.
WE WILL NOT direct you not to speak to representatives
of the Union, or any other labor organization.
WE WILL NOT threaten you that selecting the Union, or
any other labor organization, as your collective bargain-
ing representative would be futile.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of any of the
rights stated above.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Pilar
Gutierrez’ discharge on July 1, 2003, and WE WILL,
within 3 days thereafter notify her in writing that this has
been done and that the discharge will not be used against
her in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Balmore
Guevara’s warning on June 24, 2003 and his discharge
on July 3, 2003 and WE WILL, within 3 days thereafter
notify him in writing that this has been done and that the
discharge and warning will not be used against him in
any way.
WE WILL make whole José Labrador for any loss of
pay he may have suffered as a result of our discrimina-
tion against him.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to José Lab-
rador’s suspension on June 24, 2003, and the warnings
we issued him on June 23, 24, and August 1, 2003 and
WE WILL, within 3 days thereafter notify him in writing
that this has been done and that the suspension and warn-
ings will not be used against him in any way.
NORTH HILLS OFFICE SERVICES, INC.
Amy J. Gladstone, Esq., for the General Counsel.
Alan Pearl, Esq. (Portnoy, Messinger, Pearl & Associates), for
the Respondent.
NORTH HILLS OFFICE SERVICES 1087
Katchen Locke, Esq., for the Union.
DECISION
STATEMENT OF THE FACTS
Background
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on April 20, 21, 22, and May 18, and 19,
2004 in Brooklyn, New York. Pursuant to charges filed by
Service Employees International Union, Local 32B-J, AFL–
CIO (Local 32B-J or the Union), against North Hills Office
Services, Inc. (Respondent), a consolidated complaint issued on
December 17, 2003, alleging various violations of Section
8(a)(1) and (3) of the Act.
On the entire record in this case, including my observation of
the demeanor of the witnesses, set forth in detail below, and a
full consideration of the briefs filed by counsel for the General
Counsel, counsel for the Union and counsel for Respondent, I
make the following findings of fact, and conclusions of law.1
FINDINGS OF FACT
At all times material, Respondent is a domestic corporation
with its place of businesses in Woodbury, New York, and with
various other facilities located throughout Long Island, New
York. Respondent is engaged in wholesale subcontracting of
office cleaning and maintenance services. Respondent annually
purchases and receives at its facilities goods and supplies, val-
ued at in excess of $50,000 directly from suppliers located out-
side the State of New York. It is admitted that the employer is
engaged in commerce within the meaning of Sections 2(2), (6),
and (7) of the Act.
It is also admitted that Local 32B-J is a labor union within
the meaning of Section 2(5) of the Act.
It is also admitted Thomas Pellegrino Jr., vice president of
operations, Eddie Matos, operations manager, José Herrera,
operations supervisor, Leticia Herrera, building supervisor,
Ronnie (LNU), building supervisor, and Mindy Levy, control-
ler/human resources, are supervisors, within the meaning of
Section 2(11) of the Act.
Respondent is a subcontractor providing cleaning services to
various buildings located throughout Long Island and New
Jersey, including buildings located at 265 Broad Hollow Road,
herein called 265, 425 Broad Hollow Road, herein called 425,
and 445 Broad Hollow Road, herein called 445, in Melville,
New York. 445 and 425 share an entranceway, while 265 is
around ½ a mile away from the other two buildings. At all
material times, José Herrera has been employed as Respon-
dent’s field supervisor in charge of 265, 425, and 445. Addi-
tionally, Rene Iraheta has been employed as Respondent’s
building supervisor for 265; Laticia Herrera, José Herrera’s
wife, has been employed as Respondent’s building supervisor
for 425; and Ronnie Hernandez has been employed as Respon-
dent’s building supervisor for 445.

1 On August 20, 2004, Counsel for the General Counsel moved to
correct the transcript in this case as to certain names, words and
phrases. Neither Counsel for the Union, nor Counsel for Respondent
has opposed this motion. Accordingly, I grant the motion. A copy of
this motion will accompany this Decision.
The cleaners employed by Respondent are presently repre-
sented by National Organization of Industrial Trade Union,
(called NOITU), and have been so represented for many years.
The most recent collective bargaining agreement between Re-
spondent and NOITU was in force from October 18, 2000 to
November 23, 2003.
Union’s Activities Commence
In early May 2003, Local 32B-J began a campaign attempt-
ing to organize Respondent’s employees who work at 265, 425
and 445. During that month, Local 32B-J organizers, including
Ericka Bozzi and Ruben Sanchez, situated themselves in the
parking lot outside of 445 three to four times, from 5:30 p.m. to
6 p.m. and 9:30 p.m. to 10 p.m. While there, they wore purple
T-shirts containing white letters that said, “Local 32B-J.” The
Local 32B-J organizers stood around 100’ to 150’ from the
entrance to 445 and spoke to Respondent’s employees as they
were arriving at and leaving from work. I conclude Respondent
was aware of these activities. After speaking with Bozzi and
Sanchez, some of Respondent’s employees offered to assist the
Local 32B-J representatives with their organizing campaign.
The employees who most actively provided organizing assis-
tance to Local 32B-J were: Pilar Gutierrez, José Labrador,
Balmore Guevara, and Walter Gutierrez. Each one of these
employees attended Local 32B-J meetings, visited coworkers in
their homes, and participated in press conferences on behalf of
Local 32B-J.
During the first week of May, employee Pilar Gutierrez
spoke to Local 32B-J representative Bozzi outside of 445 on
her way in to work. Later that same night, Gutierrez was taking
the garbage out at around 7 p.m., when her supervisor’s super-
visor, field supervisor, José Herrera, approached her and com-
mented, “You gave your name and address and your telephone
number to those people in the union.” Gutierrez replied, “Yes.”
Herrera then told her, “Those people will not let you live in
peace. They will constantly call you and visit you.” Gutierrez
responded, “We meet and I’m not afraid of anything and I’ve
never done anything to anyone.” Herrera advised Gutierrez
that she was not supposed to speak to “those people from the
union because they were from ‘another union.’” He told her,
“That’s all I’m telling you” and left.
On May 8, after Vice President, Tom Pellegrino was made
aware that Local 32B-J was attempting to obtain authorization
cards from Respondent’s employees, Pellegrino held a meeting
for the 16 night shift employees working at 445 at that time. In
addition to Pellegrino, supervisors Herrera, who was translating
Pellegrino’s words into Spanish, and Hernandez were also pre-
sent.
At this meeting, Pellegrino explained, “I have come here be-
cause I realized some people have told me [you’ve] been speak-
ing with another union outside.” Pellegrino told the employees
that they were not supposed to speak to another union because
they already had a union. Pellegrino then asked the employees,
“What are you looking for in that other union?” and “What is it
that you want?” He told them, “You already have a union and
the only thing that could be gained, you already have in this
union . . . The union that we have can give you vacations, sick
days.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1088
Pellegrino then asked the employees if they signed cards for
Local 32B-J. At that point, approximately five employees,
including Gutierrez and Labrador, raised their hands and told
Pellegrino they had signed cards and given Local 32B-J their
names.
Gutierrez explained to Pellegrino that NOITU was not good
because the employees had no benefits. Pellegrino replied that
it was Local 32B-J that “wasn’t any good.” He informed them
that the only thing Local 32B-J was good for was to take their
money. Pellegrino then advised the employees that if Local
32B-J were voted in, the employees would earn the same salary
that they were earning at that time and “it would be the same
difference.”
Gutierrez told Pellegrino she wanted more benefits, salary
and respect. In response, Pellegrino told the employees, “If you
want more hours, you can have more [hours], benefits and a
better salary.” Pellegrino informed the employees that he
would give them additional hours of work at Respondent’s
facility located in Hauppauge, New York. He then enticed the
employees by saying, “I have some buildings that I can put in.
I can give you between eight and nine hours of work. You can
have something a little better.” Pellegrino offered employees
full-time work, which was more than the part-time four-hour
shifts they were then working. He told them he would pay
them between $8 and $9 per hour for the additional work,
which was approximately $2 to $3 more than they had been
earning at that time. Gutierrez replied that if she was going to
be working more hours and NOITU was going to continue to
take out $15 for nothing, she would prefer to continue working
the 4-hour shifts she was then working. Supervisor Hernandez
then commented to Pellegrino that he thought they should give
the additional hours to workers in other buildings.
Soon after Respondent learned that Labrador signed a card
for Local 32B-J, on approximately June 12, 2003,2 Respondent
Operations Manager, Eddie Matos and José Herrera approached
Labrador while he was working. Matos asked Labrador to
provide him with his birth certificate and social security card.
Labrador told them he would bring it in to them the following
day.
Aside from the time Labrador was hired by Respondent in
1996, at no time did anyone from Respondent ever ask Labra-
dor to provide them with any of those documents. Herrera
confirmed on June 12, that Respondent asked Labrador for
whatever papers Labrador presented when he was hired.
Herrera admits that Respondent, and not the government initi-
ated this request. Additionally, Herrera alone initiated the re-
quest for Labrador’s “papers”, with no input from Respondent’s
controller’s office. It is not Respondent’s practice to request a
social security card or birth certificate when confirming an
employee’s address. In fact, Respondent only requests docu-
mentation from employees whose other papers are due to ex-
pire. However, neither social security cards nor birth certifi-
cates expire. In fact, it is conceded that none of Labrador’s
documents were expired, or were due to expire, at the time the
request was made.

2 All dates referred to are in 2003, unless otherwise indicated.
On Friday, June 12, Local 32B-J held a meeting for the
workers from 265, 425, and 445, at the Taco Bell restaurant
located on Route 110 in Melville, (called the Taco Bell). Pre-
sent at the meeting were Local 32B-J representatives, Ericka
Bozzi, and Ruben Sanchez, as well as Gutierrez, her son, Wal-
ter Gutierrez, Labrador, Balmore Guevara and around eight to
ten other employees of Respondent.
The workers arrived at Taco Bell a few minutes past 10 p.m.
and sat in front of the window facing the parking lot. From
where they were seated, they had clear visibility outside, and
nothing stood between the table where they sat, and the window
to the parking lot. At the meeting, Bozzi had the employees
sign authorization cards for Local 32B-J.
One employee, named José Martinez, nicknamed “El Gi-
gante,” a nonlocal 32B-J supporter did not join the others dur-
ing the meeting, and, instead, went outside of the Taco Bell and
spoke on the telephone. El Gigante is close friends with super-
visor Herrera. Herrera often drives to and from work.
While the meeting was taking place, supervisor Herrera’s
van appeared outside of the window in front of the table where
the workers sat. Herrera’s van was parked approximate 10’
from the Taco Bell window. Nothing stood between Herrera’s
van and the window to Taco Bell. Herrera sat in the driver’s
side of the van and his wife, supervisor Laticia Herrera sat in
the passenger side.
Sometime after Herrera pulled up aside the Taco Bell win-
dow where the meeting was taking place, Herrera called super-
visor Hernandez via his cell phone and told Hernandez, “Come
and see where your people are. [They] are at this Taco Bell.”
Hernandez arrived shortly after and stood outside of Herrera’s
van beside the Taco Bell window.
The meeting lasted approximately one hour and ended at ap-
proximately 11 p.m. Taco Bell closes its doors at 11 p.m. and
its drive-thru closes at 11:30 p.m. At no time did Respondent’s
supervisors enter Taco Bell before 11 p.m., or purchase food at
the drive-thru.
After the meeting ended, the employees left Taco Bell first,
followed by Bozzi and Sanchez. Herrera observed the workers
exit the Taco Bell, including Gutierrez and Labrador, and he
admits he knew that Labrador was driving them in his red van.
After the meeting ended, Bozzi the Union representative
walked outside the Taco Bell. Bozzi saw Herrera sitting in his
van, in front of the window where they had been sitting during
the meeting. When they noticed Herrera sitting there, Bozzi
and union representative Sanchez approached Herrera’s van
and Bozzi asked Herrera, “So, what did you think of the meet-
ing?” Herrera did not deny that he observed the meeting and,
instead, replied, “Oh, it was a very good meeting.” Bozzi con-
tinued, “Well, if you want, we can organize these meetings for
supervisors next time . . . I’ll invite you to them.” Herrera re-
plied, “Yeah, okay, you know, whatever.” Bozzi advised
Herrera, “You know, it’s illegal for you guys to be out here.
These workers had every single right, outside of work to be
meeting and talking about whether or not they want to organ-
ize.” Bozzi accused Herrera and the others of “spying” on the
workers. Herrera replied that they usually go to Taco Bell to
eat on Fridays. However, neither Gutierrez, Labrador, nor
Guevara had ever before seen Herrera, or any other supervisor,
NORTH HILLS OFFICE SERVICES 1089
at Taco Bell at any other time prior to that night. I credit these
employees, as set forth below. Supervisor Hernandez then
followed Bozzi and Sanchez to their car.
Hernandez then forewarned Bozzi and Sanchez that now that
the workers were involved in organizing, “there [were] a lot of
changes that were coming down.” Hernandez explained to
Bozzi that there was “a lot of pressure from the top” and “there
was going to be a big crackdown on ‘papeles de immigracíon’”
or immigration papers. Hernandez warned Bozzi that Respon-
dent had plans to start getting rid of undocumented workers.
On June 16, after Eddie Matos was made aware that Local
32B-J was visiting Respondent’s employees and trying to or-
ganize the shop, Matos called a meeting in the basement of 445.
At the meeting, Hernandez told Gutierrez to wait for the four
other employees that were with her at the Local 32B-J meeting
at Taco Bell on June 13 to arrive. Present at this meeting were:
Eddie Matos, Herrera, Hernandez, Gutierrez, her son Walter,
and three other employees from 445 who had attended the Taco
Bell meeting on June 13. Matos led the meeting.
Matos began the meeting by asking the five employees,
“What [were] you doing at Taco Bell?” Matos told the em-
ployees, “You already have a union” and asked them. “Who
organized that meeting?” Matos then asked the employees if
Pilar Gutierrez told them that Local 32B-J was going to be
waiting at the Taco Bell. He then told the employees to ask
Gutierrez how much she was getting paid by Local 32B-J to
obtain the signed cards. Gutierrez stated she was not receiving
any money from anyone. She then stated, “If we were there,
it’s because we all desire—we desire something better than
what we currently have because the union we have [gets] $15
for nothing.”
Matos then announced that with “the other union” or with
any other union, the employees would get the same thing. He
continued that “the other union” would take more money from
the workers and they would get less. He stated: “It will be
impossible because it doesn’t matter what you do, you’re not
going to be able to get anything.”
Matos then told the employees that he had a video of a man
who wanted to have a new union and, “the only thing he was
able to get was fired.” Matos then asked the employees, “Do
you think that the owner of the company is going to sign a con-
tract only for you?” Gutierrez replied, “We all want 32B-J. He
will have to sign.” Matos then left the meeting visibly an-
noyed.
On June 16, Eddie Matos conducted a second meeting. This
meeting took place at 425, at 7 p.m., in the fourth floor confer-
ence room. Present at this meeting were: Matos, Herrera, em-
ployees Guevara, and the two other employees from 425 who
also had attended the Local 32B-J meeting at Taco Bell on June
13. Matos asked each of the three employees, if they had at-
tended the meeting at the Taco Bell. Matos then asked the
employees if they had known about the union meeting in ad-
vance. Guevara replied that he knew about the meeting in ad-
vance. However, the other two employees at the meeting both
stated that they had not known about the meeting prior to arriv-
ing at the Taco Bell on the 13th. Matos then asked Guevara,
“Why did you take those two to the meeting, if they did not
know about the meeting beforehand?” At no time prior to this
had Guevara ever told Matos that he took the other two em-
ployees to the meeting at Taco Bell. Matos then left the room.
Herrera then continued the meeting by stating that Local
32B-J doesn’t keep its promises. He said it offers a lot of
things, but doesn’t do anything. Herrera told the employees he
was going to show them a newspaper article stating that mem-
bers of Local 32B-J are suing the union because it has not kept
its promises. However, Herrera never showed the employees
the article he described.
June 25, 2003 Discharge of Walter Gutierrez
Pilar Gutierrez’ son Walter, worked for Respondent during
the first weeks of April 2003. Gutierrez was present when
Hernandez hired her son, Walter. At the time he was hired,
Walter openly informed Hernandez that “his papers were not
good for work.” Hernandez told Walter that Herrera said that
that would not be a problem. Hernandez reassured Walter that
Herrera was going to pay him under the name of another em-
ployee who had left Respondent’s employ, whose name was
Virginia Bonilla. He also told him the arrangement was made
with Virginia Bonilla’s permission. It was Herrera’s idea to
have Walter employed at Respondent under a false name. Al-
though Herrera admits he knew it was wrong, he nonetheless
gave the okay for Walter to work for Respondent under a false
name. Herrera gave this okay, despite the fact that Herrera
knew that Walter never presented valid working papers before
he was hired. Respondent has orchestrated this type of ar-
rangement on numerous prior occasions, to help other El Sal-
vadorians get work.
Walter was paid under the name Virginia Bonilla for ap-
proximately 4 weeks. With Herrera’s knowledge, Walter was
also paid under the name Teofila Herrera at some point during
his employment at Respondent. Teofila Herrera is José
Herrera’s mother. Each week, Hernandez handed Walter a
check containing the name of Bonilla, or Teofila. Hernandez
provided Gutierrez with detailed instructions regarding how
these false checks should be cashed so that Walter would get
his weekly pay.
On June 24 when Gutierrez and Walter arrived at work at 6
p.m., Hernandez told Walter that he could no longer be paid
under the name Virginia Bonilla because the real Virginia
Bonilla did not want him to continue using her papers. Her-
nandez told Walter that he should bring in “other papers” to see
if he could continue working at Respondent.
The next day, when Gutierrez and Walter arrived at work,
Walter handed Hernandez a birth certificate and social security
card. Hernandez called Herrera and afterwards told Hernandez
that those papers were being rejected because no photo identifi-
cation accompanied them. Two days later, Walter brought in
new papers. Herrera rejected these papers as well. Hernandez
told Walter that the papers he brought were “not any good” and
it was his last day of work. Hernandez told Walter that his
earnings for his last day of work would appear on Gutierrez’
paycheck. That was Walter’s last day of work for Respondent.
June 28, 2003 Letter to Respondent’s President Paul Kaplan
On June 28, 4 days after Walter was discharged, six employ-
ees, including: Gutierrez, Labrador, Guevara, a/k/a Irma
Guevara, and Walter, a/k/a Virginia Bonilla, got together, wrote
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
and signed a letter addressed to Respondent’s president, Paul
Kaplan. The letter notified Kaplan that its supervisors, Herrera
and Matos, were engaging in illegal activities, harassing them
because of their support for Local 32B-J. After listing all the
illegal actions taken by Kaplan’s supervisors, the letter went on
to request the Virginia Bonilla, a/k/a Walter Gutierrez, be rein-
stated to his prior position with Respondent. A few days later,
Bozzi both faxed the letter to Respondent’s office and mailed it
to Paul Kaplan.
Local 32B-J’s Press Conference/Rally on July 1, 2003
On July 1, Local 32B-J held a press conference/rally across
the street from 445, at 12 noon. Present at the rally were:
Bozzi, Sanchez, Gutierrez, Labrador, Guevara, members of the
press, elected officials, church leaders and union members. In
all, approximately 70 people attended the rally. Nothing
blocked the view of 445 from where the employees stood dur-
ing the rally and anyone inside of 445 could see them. To am-
plify the speakers’ voices at the rally, Local 32B-J used a blow
horn with a microphone attached to it. When someone spoke,
they could be heard.
At the rally, Gutierrez and Guevara held up an enlarged copy
of a letter signed by employees who attended a Local 32B-J
meeting at a church on June 29. Respondent’s supervisors were
aware of the rally, and heard the speakers.
Gutierrez signed the letter for herself and, at her son Walter’s
request, signed the name “Virginia Bonilla” on it for her son.
She signed that name for him because Walter Gutierrez was
paid under the name “Virginia Bonilla” during the time that he
worked for Respondent and he was ashamed to sign a woman’s
name on the letter. Local 32B-J blew up the letter, added the
English translation to the left of the Spanish, and scanned the
signatures onto it.
In addition to holding up the aforementioned letter to the
crowd, Gutierrez and Guevara also spoke at the rally. Gutierrez
stood in front of the crowd on a hill, and using a bull-
horn/microphone, she read the sign she was holding out loud,
which complained that Respondent pays wages as low as $6 per
hour and that workers have to wait seven years to get a $1 raise.
Guevara stood next to Gutierrez on the hill and also read part of
the sign to the crowd. They were around 15 yards from 445
when they spoke.
Labrador played a part in the July 1 rally as well. He held up
a 3’ by 2’ sign that said, “Local 32B-J” in the walkway of 445,
while the rally was taking place.
July 1, 2003 Discharge of Pilar Gutierrez
Later on, on the same evening that Gutierrez spoke to the
crowd at the Local 32B-J press conference/rally, Gutierrez was
called into a meeting with Matos, Herrera, and Hernandez. No
one from NOITU, Gutierrez’ union, was present at this meet-
ing. At the meeting, Matos informed Gutierrez, “I called you in
here to tell you that you cannot continue working here because
I have in my hands evidence.” Matos referred to the checks
with which Walter was paid when he worked for Respondent.
Respondent’s controller, Mindy Levy, admits that had the em-
ployees not sent the June 28 letter to Paul Kaplan, Respondent
never would have investigated Gutierrez having deposited these
checks into her account. This deposit was part of Respondent’s
complex plan to enable Walter to be paid by using the names of
employees no longer employed by Respondent. Matos told
Gutierrez that she could not continue working for Respondent
because he had proof that she had deposited those checks into
her own account. Matos admittedly discharged Gutierrez with-
out ever asking her supervisor, Hernandez, who had instructed
Gutierrez to deposit the checks into her own account and who
was sitting right there, if he knew anything about the situation.
Gutierrez responded that that was not “proof” against either
her or her son. She told Matos he was the guilty one because
he loaned the papers to her son allowing him to work. Matos
simply replied that she could not continue working for Respon-
dent. Gutierrez told Matos that he had to send her a letter out-
lining what she had done wrong. She added that she knew that
the real reason she was being fired was because she was sup-
porting Local 32B-J. In response to Gutierrez’ comment that
the real reason she was being discharge was because she sup-
ported Local 32B-J, Matos stated, “If this problem had been
resolved in our own country, it would have been resolved in a
different way.” “In El Salvador, a person who joins a union
sometimes dies.” Gutierrez told Matos that he treats her as if
they were in El Salvador. Matos then said, in an angry tone of
voice, “I don’t want to see you again in any of these buildings.”
After Matos discharged Gutierrez, Pellegrino finally investi-
gated the discharge and found out that Hernandez knew all
about Gutierrez’ depositing Virginia Bonilla’s checks into her
account for Walter and allowed it. However, despite learning
that Hernandez had engaged in illegal conduct, Pellegrino nei-
ther discharged nor suspended Hernandez.
On July 2, the day after Gutierrez was discharged, Matos
called Gutierrez’ home and told Labrador that Gutierrez should
return to work that night. Therefore, Gutierrez went back to
445 at 6 p.m. that night to work her regular shift. When
Gutierrez arrived, Pellegrino, Herrera, Matos, and Hernandez
all were curiously there to greet her. Pellegrino handed
Gutierrez a letter and told her that she could return to work.
The letter simply stated, “Based on further investigation, the
Company is rescinding your discharge and offering you imme-
diate reinstatement.” Pellegrino told Gutierrez that “the prob-
lem with the check had been investigated” and “there was noth-
ing against her.” He told her that he wanted her to continue
working for Respondent because she was “a very good
worker.” Gutierrez nodded and said, “Thank you.” Matos then
told Gutierrez that he was very sorry but he did not realize he
was required to give her “notices, any warnings,” before he
could fire her.
Discipline Imposed on Balmore Guevara and His Discharge
on July 3
In October 2002, Hernandez hired Guevara to work as a
night shift cleaner in 445. When Hernandez hired Guevara, he
never asked Guevara to fill out any employment application, or
to present Hernandez with any work authorization documents,
or any documents whatsoever. When Guevara arrived at work
on his first day, Hernandez said to him, “You are going to work
under the name of Irma Guevara.” Irma Guevara is Guevara’s
female cousin, who had worked for Respondent during 2002,
NORTH HILLS OFFICE SERVICES 1091
but who was no longer working for Respondent at the time
Guevara was hired. Hernandez also supervised Irma Guevara.
When he was hired, Hernandez informed Guevara that
Herrera, the boss, was in agreement with this arrangement con-
cerning Guevara’s working under his cousin’s name. When
Herrera was made aware of the arrangement, he informed Ma-
tos about it. Business as usual.
Hernandez personally handed Guevara a check every Thurs-
day. During the entire time that Guevara worked for Respon-
dent, from October 2002, until the date of his discharge, Irma
Guevara’s name appeared on the checks that Hernandez handed
Guevara. Guevara was unable to legally cash any of those
checks. During that period, his cousin Irma Guevara would
cash the checks Guevara was issued and then give Guevara the
money.
On or about June 17, Guevara, Gutierrez, Labrador, and
Walter knocked on the doors of around 15 coworkers. One of
the doors that Guevara knocked on was the door of Rosa Elvira,
someone who worked at 425 who is a good friend of Hernan-
dez’. When Elvira opened her door, she asked Guevara, “What
are you doing here?” Guevara replied, “We are visiting homes
to speak to people about Local 32B-J.” Elvira told Guevara
that she did not want to know anything and instructed him to
leave.
On June 24, at around 8 p.m., Herrera’s 11 year-old son ap-
proached Guevara while he was working, handed him a warn-
ing letter and said, “Read it and sign it.” The warning was
addressed to “Irma Guevara.” The warning said Guevara was
not getting his job done well. Prior to that night, Guevara had
never been warned, either verbally or in writing, that his work
was deficient in any way. Guevara told his supervisor, Laticia
Herrera, that he would not sign the warning because he was
doing his work completely. A few minutes later, José Herrera
and Matos approached Guevara and Herrera asked Guevara,
“Why don’t you sign the warning?” Guevara replied, “No. I
am not going to sign it.”
After Guevara refused to sign the written warning, José
Herrera responded, out of the blue, “You have three days to
present new work papers.” Herrera had never before men-
tioned anything to Guevara concerning presenting work papers
to him.
On or about June 28, 2003, the same day the employees’ let-
ter to Kaplan was faxed to Respondent, Guevara’s supervisor,
Laticia Herrera, asked Guevara if he had brought in the new
work authorization papers. Guevara said he had them and Lati-
cia then called José Herrera to the building. Herrera was satis-
fied with the new papers and accepted them. Herrera then
handed Guevara an employment application. Guevara had
never before seen such application and, because it was written
in English, Guevara asked Herrera to complete it for him.
Herrera agreed to do so. At that time, Herrera claims that he
found out that the man who he and everyone else had always
referred to as “Morey” or “Balmore”, was really Rafael Ar-
gueta. However, despite his alleged uncertainty, Herrera still
assisted Guevara by filling out the application for him and
handing it in to Respondent’s office for him.
On July 1, Guevara spoke at the press conference/rally out-
side of 445, discussed above. Two days later, on July 3, Laticia
met Guevara at the entrance to 425 at 6 p.m. and told him,
“You cannot work here anymore because your papers have
been rejected by the company.” Guevara asked her “Why?”
Laticia responded only, “The papers were not accepted by the
company, so you no longer have any work.” Guevara asked
her, “Why [is] it that a lot of people were working with that
type of papers [and they] were not fired? Why is it only myself
that [is] being fired?”
Guevara asked to speak to José Herrera. Herrera came to
him and Guevara asked Herrera, “What’s the problem?”
Herrera replied, “Your papers have not been accepted within
the company.” These were the same papers that were accepted
by Herrera a few days before that, before Guevara spoke on
behalf of Local 32B-J at the rally. Herrera explained to
Guevara, “The company has become very strict. After you
signed a letter, you—after you signed a letter and you gave it
for presentation to the company boss.” Herrera explained to
Guevara, “If you had not signed this letter, the boss would not
have become annoyed.” The letter Herrera spoke of was the
June 28, 2003 letter that Guevara and the other Local 32B-J
employee supporters sent to Paul Kaplan. Herrera further ex-
plained, “If you had not signed the letter, the things would not
have gotten so strict. From here on, everyone who works with
these types of papers will—will be fired also.” Guevara then
asked for a dismissal letter that would explain why he was be-
ing dismissed. Herrera told him he would not receive such a
letter. At no time since the day of his discharge has Respon-
dent offered Guevara reinstatement.
José Herrera testified that over the last 3 years, numerous
employees have been discharged for not possessing valid work
authorization papers. If these discharges took place, he said
there would be documentation establishing them. However,
Respondent provided no documents in response to General
Counsel’s demand for information about all employees who
were discharged for not having appropriate working papers and
Respondent’s controller, Mindy Levy, knows of no other em-
ployees who were discharged for not having valid paperwork.
Discipline Imposed on José Labrador
June 23, Written Warning to José Labrador
On June 23, Labrador arrived at work at 6:08 p.m., eight
minutes later that his scheduled starting time of 6 p.m. When
he arrived at work that night, Labrador, and the seven other
employees whom Labrador drives to work each night, all
signed in. Labrador observed the others sign in at the same
time as Labrador did. After they all signed in, Matos handed
Labrador a written warning for lateness. Matos did not give
any lateness warning to any of the other employees who arrived
to work late with Labrador that evening.
When Matos handed Labrador the warning, Labrador asked
him, “Why are you giving me this warning?” Matos did not
respond.
Since he began working for Respondent in 1996, Labrador
has always driven eight of his coworkers to work each night in
his van. He drops off employees at 265, 425, and 445. Thus,
since Labrador began working for Respondent, he admittedly
has arrived late to work on many occasions. However, even on
days on which Labrador arrived late for work, he always signed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
in with the correct time. Despite these countless known prior
latenesses throughout the years, Respondent never sought fit to
issue any warnings, either verbal or written, to Labrador for his
latenesses, or for any other reason, until after he began support-
ing Local 32B-J. His first warning was issued on June 23,
2003. Coworker José Martinez, who is friendly with Herrera
and who rode to work with Labrador every day in 2003, con-
cedes he never received any warning for being late.
Respondent’s practice is to always give a verbal warning for
lateness, prior to issuing a written warning. Herrera concedes
that sometimes an employee is given as many as three verbal
warnings prior to receiving a written warning. If there is no
improvement after the verbal warnings, Respondent will then
issue a written warning to the tardy employee. Matos admits he
never spoke to Labrador about his latenesses before June 23,
2003.
June 24, Written Warning to José Labrador
The day after Respondent issued Labrador his first warning
since he began working for Respondent in 1996, Respondent on
June 24, issued Labrador a second written warning and a sus-
pension. That night, when Labrador arrived at work at 6 p.m.,
he proceeded to the basement closet to retrieve his floor buffing
machine, as he did every night. Labrador credibly testified he
always allows the ladies to get their supplies before he does.
The other employees have no problem retrieving their supplies
from the closet before Labrador removes his machine.
On that evening, seven other employees were waiting on line
for their supplies in front of Labrador. While they waited on
line, Labrador conversed with the other employees for around 5
minutes. No one mentioned Local 32B-J to Labrador during
this conversation. Labrador never discussed Local 32B-J dur-
ing working hours. Labrador had had many similar conversa-
tions to that which he had that day while waiting on line for the
supply closet. His manager was aware of these numerous prior
conversations since he stood there while the conversations were
occurring. Despite these countless conversations, Labrador had
never before received a warning for talking on line while wait-
ing for supplies until June 24, 2003.
José Herrera admits Respondent has no restriction against
talking while waiting on line to get supplies. Further, Respon-
dent has no policy prohibiting employees from talking to each
other when they are not working. Moreover, Respondent has
no policy prohibiting talking while working. Employees are
permitted to talk while they mop and clean as long as it does
not affect their jobs. Nevertheless, as Labrador and the other
employees were conversing that night, Matos gave Labrador a
warning for talking to his coworkers.
When Matos handed Labrador the warning, Labrador said to
Matos, “I arrived early. Why are you giving me a warning?
You are giving me a warning—only to me.” Matos did not
respond to Labrador. Labrador then went to work on the first
floor.
Soon after, Herrera approached Labrador while he was work-
ing. Herrera told Labrador that he had three warnings and,
because of that, Labrador had to leave the premises. Labrador
asked, “Why? Three warnings?” Herrera explained to Labra-
dor that he had given him warnings “way before,” when Labra-
dor worked in 445. Labrador did not know to what Herrera was
referring and Herrera did not explain to what warnings he was
referring. In fact, there is no evidence that Labrador had ever
received any warnings in 445 for any reason. Herrera told Lab-
rador that he was suspended for 3 days, from June 24 through
June 27. Respondent did not suspend, or discipline in any way,
any of the other three or four employees involved in the inci-
dent. Labrador served the suspension and was not paid for any
part of the 3 days that he was out. Respondent concedes that an
employee waiting online, talking to other employees would not
deserve to be suspended.
Herrera wrote a report about the incident that he alleges was
the impetus of Labrador’s suspension. Herrera never spoke
directly with any of the employees involved in the incident
before handing in the report and issuing the discipline. The
incident report states workers were “getting ready to do their
jobs,” when Labrador “started talking,” not yelling, “about the
opposing Union 32B-J, trying to convince the workers to join
32B-J.” The report then states that employees Joel Ramirez
and Oscar Cruz got angry and responded negatively. The re-
port says nothing about Labrador getting angry or raising his
voice at any time. Ramirez and Cruz did not testify.
Respondent is required to give three warnings to an em-
ployee before it can suspend or terminate the employee. The
warnings must be written. If it’s a big infraction, Respondent
does not need to issue a warning prior to discharging an indi-
vidual. It depends on the level of the infraction.
Labrador’s personnel file contained a letter to Labrador from
Respondent’s Controller, Mindy Levy, dated August 1, 2003,
stating that Respondent received complaints about Labrador’s
work performance from the tenant in the building and warning
that if he did not improve over the following 5 days, Respon-
dent would take further action. The letter noted that Labrador
had three previous warnings, but only mentioned two such
warnings. Labrador testified he had never seen the letter until
the date of this trial. He does not know to what the letter is
referring. The letter is addressed to 5 Spring Street, however,
Labrador lived at 71 Jefferson Avenue on August 1, 2003.
In 2003, employees other than Labrador cleaned the floors of
265 on several occasions. Between June 14, 2003 and August
1, 2003, floaters cleaned the floors of 265 more than 20 times.
Respondent’s Controller, Mindy Levy, clarified that when
there is a problem with an employee’s performance, the em-
ployee’s supervisors always speak to the employee first and
discuss the problem with him or her prior to issuing the em-
ployee a written warning. At no time since Labrador began
working for Respondent in 1996, did any one from Respondent
ever mention anything to Labrador regarding complaints about
his work performance. In fact, Labrador’s immediate supervi-
sor at the time the letter was written, Rene Iraheta, describes
Labrador as having done “good work.” Levy states that if Lab-
rador had been verbally warned about his performance before
this warning was issued, a notation would most likely be in his
personnel file. No such notation appeared in Labrador’s file.
Additionally, if Levy had been made aware of prior verbal
warnings with Labrador on this subject, she would have men-
tioned them in her August 1, 2003 written warning letter. She
NORTH HILLS OFFICE SERVICES 1093
made no mention of any such prior verbal warnings on the sub-
ject in her August 1 letter.
In September 2003, Respondent began stapling newsletters
entitled, “Plain Talk” on to all its employees’ paychecks, in-
cluding those issues of “Plain Talk” dated July 1, and Septem-
ber 23.
The first paragraph of the July 1, issue of “Plain Talk” states,
“Local 32B-J had a meeting on Sunday, June 29th in a house of
worship. They desecrated it by using it to spread lies about
their rate of pay.”
Item 2 of that same newsletter, under the section asking,
“WHAT WILL IT DO FOR YOU?” asks, “WILL IT GIVE
YOU A RAISE?” The newsletter answers, in the column enti-
tled, “WHAT WILL IT DO FOR LOCAL 32B-J?”, “NO. In
fact, it could possibly cost us your jobs.” The Spanish version
of the newsletter answered the question slightly differently. It
states, “The reality is that it will most likely cost us your jobs.”
The September 22, issue of “Plain Talk” states that Local
32B-J told the Board that many of Respondent’s employees
were undocumented and it is creating problems for hardwork-
ing Hispanic people. The issue goes on to say that Local 32B-J
is trying to get the INS to threaten Respondent’s employees and
calls Local 32B-J “unscrupulous.”
Credibility Resolutions
I was very favorably impressed with the demeanor of Gen-
eral Counsel’s witnesses, Bozzi, Sanchez, Gutierrez, Labrador,
and Guevara. Each witness testified in great detail on direct
testimony and were responsive under Respondent’s vigorous
cross examination. Their testimony on cross examination was
consistent with their direct testimony. The testimony of the
employee witnesses had in my opinion, a “ring of truth.”
Respondent’s witnesses, on the other hand were entirely in-
credible, untruthful and their direct testimony often totally in-
consistent with their cross examination. Much of their testi-
mony was so unbelievable, that at times I thought they were
perhaps pulling my leg. Respondent’s witnesses were simply
untruthful, and I discredit their testimony entirely, except where
they make admissions against Respondent’s interest. Respon-
dent’s witnesses simply had the “ring of untruthfulness.”
Respondent’s key witnesses, including José Herrera, Eddie
Matos, Mindy Levy and Tom Pellegrino, offered testimony that
was from beginning to end, riddled with inconsistencies and
shockingly contradictory. The demeanor of many of these
witnesses, especially Herrera and Matos, was belligerent and
uncooperative. While testifying at great length during direct
examination, Respondent’s witnesses grew suspiciously eva-
sive and confrontational during cross examination, claiming not
to understand straightforward, simple questions. They inart-
fully attempted to avoid directly answering questions and gen-
erally answered unresponsively.
Each of Respondent’s witnesses’ testimony was replete with
inconsistencies and internal contradictions. The myriad contra-
dictions, inconsistencies and incredible exaggerations by Re-
spondent’s key witnesses are too many to recite all of them
herein. However, a few examples are as follows: Herrera first
admitted that Respondent requested from Labrador whatever
papers he presented when he was hired and he did not know
why. However, later, on redirect, Herrera concocted the story
that Respondent was simply requesting Labrador’s new ad-
dress. Herrera also stated that anybody Respondent hires had to
supply it with working papers or they would not be hired.
However, he later conceded that he knew Balmore Guevara
was hired without handing in any papers and he did not report it
when he found out.
In addition, Respondent’s witnesses’ testimony contradicted
that of Respondent’s other witnesses. In this regard, Matos
denied ever asking Labrador for his paperwork. However, as
noted above, Herrera admitted that they asked Labrador for his
paperwork. Herrera said they asked for Labrador’s paperwork
because he received a note from Respondent’s Controller,
Mindy Levy, to do so. However, Levy denies sending such a
note. Herrera stated that the purpose of the meeting on May 8,
2003, was to address employee lateness. However, Pellegrino
stated the purpose of the meeting was to address complaints
about cleaners from the landlord, not lateness. Thus, Respon-
dent’s own witnesses exposed its entire defense to be both a
pretext and a sham.
Perhaps the most glaring example of the weakness of Re-
spondent’s case was Respondent’s failure to provide witnesses,
such as supervisors Ronnie Hernandez and Laticia Herrera, and
documents, such as memos and sign-in sheets, to support its
contentions. Instead, Respondent merely flooded the record
with unsubstantiated innuendo and sweeping, vague accusa-
tions, hoping they would pass for credible, probative evidence.
Some of Respondent’s witnesses, such as Herrera and Matos,
exhibited a clear willingness to say anything at all—no matter
how preposterous, illogical, exaggerated or just plain false—to
square with its concocted defense and to cover up its unlawful
conduct.
It is noteworthy that Respondent failed to produce Ronnie
Hernandez to corroborate Herrera’s testimony, to explain his
practice of hiring undocumented workers, to explain why he
showed up at the Taco Bell, and what he told Bozzi that night
and to shed light on prior warnings alleged to have been issued
to Labrador. Respondent also failed to produce Laticia Herrera
to substantiate José Herrera’s testimony about what occurred at
the Taco Bell and why she issued Guevara, who she immedi-
ately supervised, a written warning and later dismissed him.
Respondent further failed to present any employee witnesses to
support its account of the incident that took place outside the
supply closet, giving rise to Labrador’s 3-day suspension.
Since Respondent failed to present either of these witnesses that
could have corroborated its witnesses, the inference must be
drawn that any testimony given by Hernandez or Laticia
Herrera would not have supported Respondent’s accounts.
Hudson Moving & Storage Co., 322 NLRB 1028 (1997).
Finally, Respondent failed to produce any memoranda con-
cerning why it requested documentation from Labrador and
Guevara when it did, or sign-in sheets proving Labrador
signed-in later than all the others not issued warnings. Respon-
dent’s failure to produce material, relevant evidence with a
satisfactory explanation leaves me with no option but to draw
the inference that such evidence would not have supported
Respondent’s accounts. Eleven Food Store, 257 NLRB 108
(1981); Publishers Printing Co., 233 NLRB 1070 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1094
CONCLUSIONS OF LAW
Respondent Violated Section 8(a)(1) of the Act by Interrogat-
ing Gutierrez and Directing Her not to Speak to Union Repre-
sentatives During the First Week of May 2003.
The evidence established that Herrera’s statement to
Gutierrez asking her to verify that she gave her name, address
and telephone number to Local 32B-J and his direction to her
that she not speak with Local 32B-J representatives outside of
work because they were from “another union” both violated
Section 8(a)(1) of the Act.
The Board has held that the questioning of an employee
about his or her union activities by a high-level company offi-
cial, without a legitimate purpose and without assurances
against reprisals, is inherently coercive in nature. Dealers Mfg.
Co., 320 NLRB 947, 948 (1996). In the instant case, the ques-
tioning was done by Herrera, a high level supervisor, without a
legitimate purpose and without any assurances against reprisals.
Additionally, applying the totality of the circumstances test
adopted by the Board in Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985), it can be said that the questioning at
issue, occurring immediately after she spoke with the Local
32B-J representatives outside the building, would reasonably
tend to coerce Gutierrez, so that she would feel restrained from
exercising her Section 7 rights to speak to union representatives
outside of work. Westwood Care Center, 330 NLRB 935
(2000), and cases cited. Under these circumstances, I find the
evidence established that Herrera unlawfully interrogated
Gutierrez in violation of Section 8(a)(1) of the Act.
The Board has held that an employer’s directive to employ-
ees prohibiting them from speaking to union representatives is
unlawful conduct. Albertson’s, Inc. 319 NLRB 93 (1995).
Under this reasoning, I find Herrera’s directive to Gutierrez that
she not speak to those people from the other Union was also a
violation of Section 8(a)(1) of the Act.
Pellegrino’s Interrogation, Threat of Futility, Threat of Loss of
Pay and Promise of Benefits on May 8, Violated Section
8(a)(1) of the Act
I find the creditable testimony established that Pellegrino’s
question to employees, “What are you looking for in that other
Union?” and “What is it that you want?” along with his inquiry
as to who had signed authorization cards for Local 32B-J were
all unlawful interrogations in violation of Section 8(a)(1) of the
Act. Again, this questioning was done by a high level supervi-
sor, Respondent’s vice president, without a legitimate purpose
and without assurances against reprisals. The answer to the
question posed by Pellegrino concerning who signed cards
would clearly indicate whether the employees did or did not
support Local 32B-J. Dealers Mfg. Co., supra.
Additionally, applying the totality of the circumstances test
adopted by the Board in Rossmore House, supra, it can further
be said that the questioning at issue, taking place in a formal
meeting with a high level supervisor, at the commencement of
an organizing campaign, would reasonably tend to coerce the
employees so that they would feel restrained from exercising
rights protected by Section 7 of the Act. Westwood Care Cen-
ter, supra. I find this questioning by Pellegrino was an unlaw-
ful interrogation in violation of Section 8(a)(1) of the Act.
I find Pellegrino’s statement to the employees that if Local
32B-J was voted in, the employees would earn the same salary
and “it would be the same difference” was an unlawful threat of
futility because it notifies employees that Respondent would
not negotiate with Local 32B-J to get the employees better
wages and benefits if Local 32B-J did get in. Taken in the
context of the other unfair labor practices committed by Re-
spondent, this statement could convey no message other than
that voting in Local 32B-J would be futile. See, Naum Bros.,
Inc., 240 NLRB 311 (1979) (Where the employer made no
attempt to factually support its statements that “no retail opera-
tion could operate or pay the wages that that Union would want
them to pay,” the Board found an unlawful threat of futility.)
As such I find this statement violated Section 8(a)(1) of the
Act.
The credible testimony establishes that Pellegrino asked the
employees, “What is it that you want?” and told them, “If you
want more hours, you can have more [hours], benefits and a
better salary.” Pellegrino then offered the employees full-time
hours at Respondent’s Hauppauge facility. This question and
answer solicited grievances and sought to remedy them by of-
fering employees, including Gutierrez, whom he had previously
learned was a Local 32B-J supporter, more hours of work. The
evidence disclosed that this offer of additional working hours,
which would make employees eligible for benefits, came less
than 1 month after Local 32B-J began organizing at Respon-
dent. The suspicious timing of this offer indicates an unlawful
motivation behind it. Accordingly, I find both Pellegrino’s
solicitation of grievances here and the promise of benefits vio-
lated Section 8(a)(1) of the Act.
Herrera and Matos’ Demand That Labrador Provide Them
With His Birth Certificate and Social Security Card for No
Apparent Reason Other Than to Harass Him Violated Section
8(a)(1) of the Act
The evidence clearly established that Matos and Herrera’s
demand for a birth certificate and social security card from
Local 32B-J supporter Labrador on approximately June 12,
violated Section 8(a)(1) of the Act. First, this demand came a
mere four days after Labrador announced to Pellegrino and
Herrera that he had signed an authorization card for Local 32B-
J. Secondly, although Herrera concedes the request was made,
Respondent was utterly incapable of providing an adequate
explanation as to why this extremely odd request was made at
the time it was. Herrera concedes that Respondent’s practice is
to only request documentation from employees whose papers
are due to expire. And yet he also admits that none of Labra-
dor’s documents were expired on June 12. Moreover, Herrera
concedes social security card and birth certificates never expire
and he could provide no logical reason why Levy wanted them
checked at that point in time. Herrera’s belated attempted ex-
planation that Respondent was asking for the documents to
somehow verify Labrador’s new address fails miserably.
Clearly, the Administrative Law Judge pointed out, Respondent
could have simply asked Labrador for his new address. And
equally as plain, if Respondent truly was interested in change of
NORTH HILLS OFFICE SERVICES 1095
address information from Labrador, it would not have asked
him to supply his social security card and birth certificate, both
of which obviously do not contain Labrador’s new address.
Therefore, I find the only logical reason for this odd request, at
this suspicious time, was to harass Labrador because of his
support for Local 32B-J. Accordingly, I find Respondent’s
request to Labrador violated Section 8(a)(1) of the Act.
José and Laticia Herrera’s Surveillance of the Local 32B-J
Meeting at Taco Bell on June 13, Violated Section 8(a)(1)
of the Act.
The credible testimony establishes that Respondent, by José
and Laticia Herrera, engaged in unlawful surveillance of Local
32B-J’s meeting at Taco Bell on June 13, 2003. In Huck Store
Fixture Co., 334 NLRB 119, 128 (2001), the Board adopted the
Administrative Law Judge’s finding that the employer engaged
in unlawful surveillance of its employees at a union meeting
because “employees would be reluctant to attend such a meet-
ing knowing that they would be seen by management.” In sup-
port of it’s finding, the Board relied on the fact that at least one
employee attending the meeting saw the supervisor there and
the supervisor observed two employees arriving at the meeting.
Id., supra at 119, fn. 2. In the instant case, Guevara testified
that he observed Herrera’s van outside the window in front of
the table where the employees sat while the meeting was taking
place. They had clear visibility of the employees attending this
meeting. Additionally, Gutierrez, Labrador, and Bozzi all testi-
fied that the Herrera supervisors and Hernandez were parked
directly outside of the Taco Bell window as they were leaving
the Taco Bell.
Herrera’s incredible testimony is that he was looking for a
parking space is senseless. He admits that the restaurant por-
tion of the Taco Bell was closed when he arrived and they
“couldn’t get tacos inside”, so there would be no reason for
Herrera to be searching for a parking space. And, in fact,
Herrera also described the parking lot as “small”, not crowded,
and with only a few cars. Thus, his claim that he was searching
for a parking space at the time is clearly false.
Perhaps the most convincing evidence that the surveillance
took place is Respondent’s failure to call Ronnie Hernandez to
the stand to dispute Bozzi’s testimony that Herrera called Her-
nandez and told him, “Come see where your people are. [They]
are at this Taco Bell.” Based on Respondent’s failure to pre-
sent Hernandez to discount Bozzi’s account and support
Herrera’s account, the inference must be drawn that any testi-
mony given by Hernandez would not have supported Respon-
dent’s accounts. Hudson Moving & Storage Co., Inc., supra.
Thus, I find the totality of the circumstances suggests that the
Herreras’ engaged in unlawful surveillance of the Local 32B-J
meeting that took place on June 13, in violation of Section
8(a)(1) of the Act.
Eddie Matos’ Interrogation, Conveying the Impression of Sur-
veillance, Statement of Futility and Implied Threat of Dis-
charge at the June 16, Meeting at 445 Violated Section 8(a)(1)
of the Act
The credible testimony established that Matos’ singling out
and questioning of the 445 employees who attended the June 13
Local 32B-J meeting violated Section 8(a)(1) of the Act. Matos
unlawfully asked these employees the following (1) “What
were you doing at Taco Bell?,”, (2) “Who organized the meet-
ing?”, and (3) If Gutierrez told them that Local 32B-J was
going to be waiting at the Taco Bell. As noted above, this
questioning was done by a high-level company official, without
a legitimate purpose and without assurances against reprisals.
Dealers Mfg. Co., supra at 948. I find this questioning was
inherently coercive in nature and applying the totality of the
circumstances test adopted by the Board in Rossmore House,
supra, the questioning at issue, taking place in a formal meeting
with a high level supervisor, would reasonably tend to coerce
the employees so that they would feel restrained from exercis-
ing rights protected by Section 7 of the Act. Westwood Care
Center, supra. Accordingly, I find this questioning by Matos to
the 445 employees who attended the Taco Bell meeting was an
unlawful interrogation in violation of Section 8(a)(1) of the
Act.
The evidence also establishes that at the same meeting for
the 445 employees who attended the Local 32B-J meeting at
the Taco Bell, Matos’ unlawfully gave employees the impres-
sion that their activities on behalf of Local 32B-J were under
surveillance. The Board’s test for determining whether an em-
ployer has created the impression of surveillance is whether the
employee[s] would reasonably assume from the statement in
question that [their] union activities had been placed under
surveillance. Tres Estrellas de Oro, 329 NLRB 50, 51 (1999),
citing United Charter Service, 306 NLRB 150 (1992). In this
regard, “[T]he 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 . . . Fur-
ther, the Board does not require that an employer’s words on
their face reveal that the employer acquired its knowledge of
the employee’s activities by unlawful means.” Hal (Id) at 51,
quoting United Charter Service, supra at 151. The rationale
behind “finding ‘an impression of surveillance’ as a violation of
Section 8(a)(1) of the Act is that employees should be free to
participate in union organizing campaigns without the fear that
members of management are peering over their shoulders, tak-
ing note of who is involved in union activities, and in what
particular ways.” Hal (Id) at supra at 51, quoting Flexsteel
Industries, 311 NLRB 257 (1993).
The Board has held that statements to employees that suggest
that the employer is closely monitoring the employees’ union
involvement, unlawfully creates the impression that their union
activities are under surveillance in violation of Section 8(a)(1)
of the Act. Palagonia Bakery Co., 339 NLRB 515, 526 (2003);
Acme Bus Co., 320 NLRB 458, 477 (1995); Flexsteel Indus-
tries, supra; Emerson Electric Co., 287 NLRB 1065 (1988). In
the instant case, the evidence established that Matos called only
those employees who were present at the June 13 Local 32B-J
meeting at Taco Bell to the meeting at issue. He then made the
employees aware that he knew that Local 32B-J had had a
meeting, where that meeting took place and that each one of the
employees present had attended the meeting. In these circum-
stances, Matos’s statements indicated to the employees that
Respondent was closely monitoring the employees’ involve-
ment with Local 32B-J. Further Matos’ comments, displaying
his knowledge and details of the Local 32B-J meeting could be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1096
said to have reasonably led employees to assume that their
activities on behalf of Local 32B-J were under surveillance.
Therefore I find Respondent violated Section 8(a)(1) of the Act.
The credible evidence further established that Matos unlaw-
fully made statements during this meeting advising the employ-
ees that it would be futile to select Local 32B-J as their collec-
tive bargaining representative. In this regard, Matos asked the
employees: “Do you think that the owner of the company is
going to sign a contract only for you?” Matos also told the
employees that with “the other union” or with any other union,
the employees would “get the same” and Respondent’s singing
a contract with Local 32B-J “will be impossible because it
doesn’t matter what you do, you’re not going to be able to get
anything.”
The Board has held that the true message and effect of an
employer’s prediction of futile bargaining must be viewed
against the background of the employer’s total course of con-
duct. Naum Bros., Inc., supra. In Naum Bros., the employer
threatened the futility of unionization against a background
containing a discriminatory discharge, the unlawful promise
and grant of increased benefits, interrogation, and creating the
impression of surveillance. The Board concluded, “In such
context, it would have been virtually impossible for employees
to avoid the conclusion that they were being threatened with
dire consequences if they voted the union in.” Supra. Simi-
larly, in the instant case, where Respondent’s course of conduct
also includes discriminatory discharges and warnings, threats,
solicitation of grievances and promises to remedy, interroga-
tions, surveillance and conveying the impression of surveil-
lance, Matos’ statement could convey no other message other
than that voting in Local 32B-J would be futile. Accordingly, I
find these statements violated Section 8(a)(1) of the Act.
The credible testimony additionally establishes that Matos’
statements also contained an unlawful implied threat of dis-
charge. In this regard, Matos told the 445 employees that he
possessed a video of a man who wanted a new union in and the
only thing he was able to get was fired.” The Board has long
evaluated messages from employers, not in isolation from each
other, but in their “total context.” Madison Kipp Co., 240
NLRB 879 (1979): Arch Beverage Corp., 140 NLRB 1385
(1963). Employers’ statements pertaining to loss of jobs that
might result from unionization are evaluated within the “total
context” in which they appear, under the standards established
by the Supreme Court’s decision in NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969).
I conclude Matos’ comments in terms of their total context
were unlawful. The comment was made amidst a barrage of
unlawful 8(a)(1) statements, including an interrogation, con-
veyance of an impression of surveillance and statement of futil-
ity. I find the statement is clearly coercive, conveying to the
employees that if they attempted to get a new union in, they too
would be discharged. Accordingly, I find such statement to be
a violation of Section 8(a)(1) of the Act.
Eddie Matos’ Interrogation and Conveying the Impression of
Surveillance at the June 16, Meeting at 425 Violated Section
8(a)(1) of the Act
The credible testimony established that at a meeting held
solely for 425 employees who attended the June 13 Local 32B-
J meeting at the Taco Bell, Matos unlawfully interrogated the
employees about the Taco Bell meeting. In this regard, Matos
asked the employees if they attended the meeting at the Taco
Bell and if they had known about the meeting in advance. Ma-
tos also questioned Guevara about why he drove the other two
employees to the meeting if they did not know about the meet-
ing beforehand.
As set forth above, the questioning was done by Respon-
dent’s Operations Manager, a high-level company official,
without a legitimate purpose and without assurances against
reprisals. Dealers Mfg. Co., supra at 948. Thus, this question-
ing was inherently coercive in nature and applying the totality
of the circumstances test adopted by the Board in Rossmore
Hours, supra, the questioning, taking place in a formal meeting
with a high level supervisor, on the heels of a union meeting to
which the employees being questioned attended, would reason-
able tend to coerce the employees so that they would feel re-
strained from exercising rights protected by Section 7 of the
Act. Westwood Care Center, supra. Accordingly, I find this
questioning was an unlawful interrogation in violation of Sec-
tion 8(a)(1) of the Act.
As noted above, the credible evidence disclosed that Matos
called only those 425 employees who were present at the June
13 union meeting at Taco Bell to the meeting at issue. He then
informed the employees that he was aware that there was a
union meeting, he knew where it was held and he knew that
Guevara had driven them all to the meeting. In these circum-
stances, Matos’ comments, displaying this kind of knowledge
about and details of the Local 32B-J meeting and Guevara’s
participation in it, can be said to have reasonably led employees
to assume that their activities on behalf of Local 32B-J were
under surveillance. The Hertz Corp., supra at 1025; Bay Cor-
rugated Container Co., supra at 455–456. Accordingly, I find
Matos’ statements here are violative of Section 8(a)(1) of the
Act.
Respondent Unlawfully Created the Impression of Surveillance
and Threatened Job Loss in the July 1, Issue of “Plain Talk”
and Displayed Animosity Towards Local 32B-J in the Septem-
ber 23, Issue of “Plain Talk”
I find Respondent also unlawfully created the impression of
surveillance by the language Respondent used in the first para-
graph of its July 1, issue of “Plain Talk,” advising employees
that it knew that “Local 32B-J had a meeting on Sunday, June
29th in a house of worship.”
Applying the Board’s test for determining whether an em-
ployer has created the impression of surveillance, it can easily
be said that the employees would reasonably assume from this
statement that their activities on behalf of Local 32B-J had been
placed under surveillance. United Charter Service, supra at
150. How else would Respondent have known that there was a
Local 32B-J meeting on that date and how else would it have
known the location of that meeting? Additionally, in light of
NORTH HILLS OFFICE SERVICES 1097
Respondent’s surveillance of the employees’ activities on be-
half of Local 32B-J at the Taco Bell on a prior occasion, and its
questioning of employees about their attendance at the Taco
Bell meeting thereafter, I find the employees already felt that
Respondent was closely monitoring their Union involvement.
This statement in the July 1 “Plain Talk” could only serve to
amplify that feeling. In these circumstances I find Respondent,
by its letter, unlawfully created the impression that its employ-
ees’ activities on behalf of Local 32B-J were under surveil-
lance, in violation of Section 8(a)(1) of the Act.
I also find Respondent’s statement contained in Item 2 of the
July 1 issue of “Plain Talk,” that Local 32B-J “will most likely
cost us your jobs” unlawfully threatened Respondent’s employ-
ees with job loss. As set forth above, the Board evaluates such
messages from employers, not in isolation from each other, but
in their “total context,” Madison Kipp Co., supra, Arch Bever-
age Corp., supra., under the standards established by the Su-
preme Court’s decision in NLRB v. Gissel Packing Co., supra.
Here, Respondent failed to provide any objective basis for
that statement and failed to explain just how changing their
union from NOITU to Local 32B-J could cost them their jobs.
Additionally, Respondent published this issue of the newsletter
in the midst of its commission of numerous violations of both
Section 8(a)(1) and (3) of the Act. Further the issue of “Plain
Talk” was attached to the employees’ paychecks, indicating
that the words in the newsletter were somehow tied to their pay.
Thus I find that evaluating Respondent’s words in their total
context leads to no other conclusion other than that Respondent
was threatening its employees with job loss if they voted in
Local 32B-J. Accordingly, I find that this action violated Sec-
tion 8(a)(1) of the Act.
The September 22, issue of “Plain Talk” states that Local
32B-J told the Board that many of Respondent’s employees
were undocumented and it is creating problems for hardwork-
ing Hispanic people, and that Local 32B-J is trying to get the
INS to threaten Respondent’s employees. By publishing this
reckless and irresponsible and untruthful statement, and attach-
ing the newsletter to employees’ paychecks, Respondent pat-
ently conveyed to many of its undocumented employees that
Local 32B-J has put them in imminent danger of both discharge
and deportation. The Board has found this type of conduct to
have “crossed the line and exceeded the zone of privileged free
speech and constituted coercive conduct in violation of Section
8(a)(1) of the Act. See 6 West Limited Corp., 330 NLRB 527,
545 (2000) (Employer propaganda falsely accusing the union of
making a bomb threat found to have unlawfully disparaged the
union). Thus, these statements provide additional indicia of
just how deep Respondent’s animosity towards Local 32B-J
runs.3

3 Although not specifically alleged in the consolidated complaint, the
Regional Director for Region 29 alleged these very same statements in
the consolidated complaint in North Hills Office Services, Inc., Cases.
29–CA–25930 and 29–CA–25996 to be “false, reckless and disparag-
ing remarks regarding an alleged attempt by Local 32B-J to report
employees to the INS to deter employees from supporting that labor
organization” in violation of Sec. 8(a)(1) of the Act.
Respondent Violated Section 8(a)(1) and (3) of the Act by Dis-
charging Pilar Gutierrez, Failing to Adequately Repudiate the
Discharge, and Reducing Gutierrez’ Discharge to an Unlawful
Written Warning
To violate Section 8(a)(3) of the Act, an employer’s conduct
must discriminate in a manner that discourages membership in
a labor organization. Under Wright Line, 251 NLRB 1083
(1980, enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in Transportation Management Corp.,
462 U.S. (1983), the General Counsel has the initial burden of
proving that union activity or other employee conduct protected
by the Act was a motivating factor in an employer’s decision to
take adverse action against an employee. A prima facie case of
discriminatory conduct under Section 8(a)(3) of the Act re-
quires evidence of the following: (1) that the alleged discrimi-
natees be engaged in union activity; (2) that the employer had
knowledge of these activities; (3) that the employer’s actions
were motivated by union animus; and (4) that the discrimina-
tion has the effect of encouraging or discouraging union mem-
bership. Downtown Toyota, 276 NLRB 999, 1014 (1985), cit-
ing NLRB v. Transportation Management Corp., 462 U.S. 393
(1983) Wright Line, supra. Once the General Counsel meets
this initial burden, the employer then has the burden to show
that it would have taken the same action even in the absence of
the protected conduct. Office of Workers Compensation Pro-
grams v. Greenwich Colleries, 114 S.Ct. 2552–2558 (1994);
Southwest Merchandising Corp., 53 F. 3d 1334 (D.C. Cir.
1995) ; Manno Electric, 321 NLRB 278, fn. 12 (1996); Wright
Line, supra. However, when an employer’s motives for its
actions are found to be false, the circumstances may warrant an
inference that true motivation is an unlawful one that the em-
ployer desires to conceal. Limestone Apparel Corp., 255
NLRB 722 (1981); Golden Flake Snake Foods, 297 NLRB 594
fn. 2 (1990).
Here, Gutierrez engaged in major, known union activity.
She was Local 32B-J’s lead organizer and was very vocal about
it, having spoken out on behalf of Local 32B-J at employees
meetings with supervisors present, and at the press confer-
ence/rally occurring on the very same day of her discharge.
Hence, not only did she engage in an abundance of union activ-
ity, but the timing of her discharge, on the night after the rally,
and the unlawful conduct, described above raises serious suspi-
cion as to Respondent’s motivation for discharging her.
Additionally, striking evidence of animus and unlawful mo-
tivation is established by the fact that no Respondent official
ever conducted a fair investigation into the reasons behind
Gutierrez’ depositing paychecks made out to Virginia Bonilla,
on behalf of her son, the alleged reason for her discharge. The
Board has considered an employer’s failure to conduct a fair
investigation and to give employees the opportunity to explain
their actions before imposing disciplinary action to be signifi-
cant factors in finding discriminatory motivation. Johnson
Freightlines, 323 NLRB 1213, 1222 (1997): Publishers Print-
ing Co., 317 NLRB 933, 938 (1995); Emergency One, Inc., 306
NLRB 800, 807 (1992) (supervisor’s failure to adequately in-
vestigate accusation of theft by antiunion employees against
leading union employee organizer revealed an investigation
designed not to find out what occurred, but to support a dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1098
charge.) Here, Matos admitted that he discharged Gutierrez
without ever asking Gutierrez’ supervisor, Hernandez, who was
present when Gutierrez was discharged, what he knew about
Gutierrez’ reasons for depositing Virginia Bonilla’s paychecks.
Pellegrino explained that it was only after Matos discharged
Gutierrez that he investigated and found out that Hernandez
knew all about what Gutierrez was doing and had allowed it.4
In fact, Herrera admitted that Virginia Bonilla herself gave her
permission for the arrangement. Thus, Respondent’s actions, in
jumping the gun regarding her discharge, point to an unlawful
motivation for Gutierrez’ discharge and contribute to an over-
whelming prima facie showing in favor of a violation.
The burden now shifts to Respondent to demonstrate that it
would have discharged Gutierrez even in the absence of her
protected conduct. Wright Line, supra. I find Respondent has
wholly failed to meet this burden.
Respondent claims that it discharged Gutierrez for fraudu-
lently endorsing a check with another person’s name. How-
ever, the evidence established that both Hernandez and Herrera,
admitted, Section 2(11) supervisors and agents of Respondent,
were aware that this situation was occurring and condoned it
for months. In fact, the evidence is clear that Herrera himself
orchestrated the scenario that enabled Gutierrez’ son to work
for Respondent unlawfully, using the name “Virginia Bonilla”
and Hernandez was the one who originally instructed Gutierrez
to deposit the checks into her own bank account. Further, it
stands to reason that since it was common practice for undocu-
mented employees of Respondent to work under names other
than their own, it is also common practice for these employees
to deposit checks into their accounts made out to the individu-
als whose names they were working under. The evidence is
overpowering, and I find that Gutierrez was clearly discharged
because of her support for and activities on behalf of Local
32B-J, in violation of Section 8(a)(1) and (3) of the Act.
Respondent argues that since it immediately reinstated
Gutierrez the following day, and since she suffered no loss in
pay as a result of her discharge, Respondent should not be li-
able for its violation of the Act. However, the Board has con-
sistently held otherwise. The Board has held that in order to
effectively repudiate unlawful conduct, such repudiation must
be “timely,” “unambiguous,” “specific in nature to the coercive
conduct” and “free from other proscribed illegal conduct.”
Passavant Memorial Area Hospital, 237 NLRB 138, 138–139
(1978), citing, Douglas Division, 228 NLRB 1016, 1024
(1977). In this regard, the Board in Passavant clarified:
“[T]here must be adequate publication of the repudiation to the
employees involved and there must be no proscribed conduct
on the employer’s part after the publication. And finally, . . .
such repudiation or disavowal of coercive conduct should give
assurances to employees that in the future their employer will

4 At trial, the following exchange took place:
General Counsel: But you didn’t think to ask Ronnie while—while
the situation was going on and Pilar was being discharged, if he knew
anything was going on as his—as her immediate supervisor and the one
who was giving the checks out each week?
Matos: No. I didn’t ask that.
not interfere with the exercise of their Section 7 rights. Supra
at 138–139.
Applying the above criteria to the instant facts I conclude
that Respondent failed to adequately repudiate Gutierrez’ dis-
charge. Respondent’s repudiation of Gutierrez’ discharge was
neither unambiguous nor free of other proscribed conduct. In
this regard, Pellegrino merely handed Gutierrez a letter and told
her she could return to work. The letter simply stated, “Based
on further investigation, the Company is rescinding your dis-
charge and offering you immediate reinstatement.” This letter
is not specific in nature to the coercive conduct and fails to give
assurances that in the future, Respondent will not interfere with
Gutierrez’ Section 7 rights.
Moreover, I conclude that Respondent’s actions were not
free from other proscribed conduct. In this regard, Matos’s
explanation to Gutierrez that he did not realize he could not fire
her without giving her “notices” or “warnings”, indicated to
Gutierrez that her discharge was being reduced to a warning
and this warning could contribute towards her eventual dis-
charge. Thus, Respondent’s reinstatement of Gutierrez did not
nearly suffice to repudiate Gutierrez’ discharge. Accordingly, I
conclude that the discharge and the warning to which the dis-
charge was reduced violated Section 8(a)(1) and (3) of the Act.
Matos’ Implied Threat of Bodily Harm to Gutierrez was Coer-
cive and Violated Section 8(a)(1) of the Act
The evidence also established that Matos’ statement to
Gutierrez regarding how the situation would have been re-
solved had they been in El Salvador, described above “. . . and
sometimes even die . . .” clearly had no purpose but to harass
and to illicit fear in Gutierrez. Thus, I find the statement was
coercive and violated Section 8(a)(1) of the Act.
Respondent Violated Section 8(a)(1) and (3) of the Act by Issu-
ing Guevara a Written Warning and Discharging Him, and it
Violated Section 8(a)(1) of the Act by Requiring Guevara to
Produce Documents Establishing He was Legally Entitled to
Work in the United States
As set forth above, the Board requires that the General
Counsel first establish a prima facie case sufficient to support
an inference that protected activity motivated Respondent’s
issuance of discipline. Wright Line, supra. Guevara is a lead
Local 32B-J supporter whose attendance at both the Taco Bell
meeting and the rally/press conference was made known to
Respondent. Additionally, as set forth above, there is an abun-
dance of evidence that establishes Respondent harbored ani-
mosity against both the Union, by virtue of the numerous inde-
pendent violations of Section 8(a)(1) of the Act, and against
Guevara, by virtue of Matos’ inquiries to Guevara as to why he
drove the employees to the Local 32B-J meeting. The timing
of the discipline, in the midst of Local 32B-J’s organizational
campaign and a few days after Guevara was seen at the Taco
Bell meeting and questioned about his attendance at that meet-
ing, lends serious suspicion as to Respondent’s motivation be-
hind issuing Guevara this discipline. I find the evidence estab-
lished a strong prima facie showing in support of violations
alleged above.
NORTH HILLS OFFICE SERVICES 1099
The burden now shifts to Respondent to demonstrate that it
would have taken these actions even in the absence of
Guevara’s protected activities. Wright Line, supra.
This issuance of a warning notice in retaliation for union ac-
tivities is a violation of Section 8(a)(1) and (3) of the Act.
Property Markets Group, Inc., 339 NLRB 199 (2003). The
written warning Respondent issued to Guevara on June 24,
2003, stated Guevara was not doing his job well. However,
Guevara testified that prior to that night, he had never been
warned, either verbally or in writing, that his work was defi-
cient in any way. Importantly, although Herrera claimed
Guevara’s supervisor, Laticia Herrera, gave Guevara numerous
verbal warnings prior to issuing this written warning. Respon-
dent failed to present any evidence to support this claim. In this
regard, Respondent failed to call Laticia Herrera as a witness,
despite the fact that Laticia Herrera would have been the only
individual who could have directly testified as to any alleged
verbal warnings she gave to Guevara concerning his perform-
ance. In these circumstances, an inference must be drawn that
any testimony given by Laticia Herrera would fail to have sup-
ported Herrera’s claim that prior verbal warnings were issued to
Guevara. Hudson Moving and Storage Co., Inc., supra.
Respondent’s disparate treatment of Guevara is further evi-
dence of Respondent’s pretextual motivation in issuing
Guevara the June 24 warning. In this regard, Respondent’s
controller, Mindy Levy, testified that when there is a problem
with an employee’s performance, the employee’s supervisor
always speaks to the employee first and discusses the matter
with the employee, prior to Respondent issuing the employee a
written warning. However, the credible testimony established
that no such prior discussions took place with regard to
Guevara’s job performance. Thus, I find this unsupported
warning has been shown to be totally pretextual and discrimina-
torily conceived. The evidence supports only a finding that the
real reason Respondent issued Guevara this warning was be-
cause of his support for Local 32B-J. Accordingly, I conclude
was in violation of Section 8(a)(1) and (3) of the Act.
Respondent requested that Guevara provide legitimate work-
ing papers, for the first time since he began working for Re-
spondent in October 2002, in the midst of Local 32B-J’s orga-
nizing campaign and after obtaining knowledge of Guevara’s
activities in support of Local 32B-J. This establishes clear
evidence of unlawful motivation. Respondent’s affirmative
defense that it was acting pursuant to its obligations under the
federal immigration law is laughable.
Respondent not only hired Guevara without requiring him to
complete an employment application and without asking him to
present any work authorization papers at all, but also condoned
Guevara’s working without any legal work authorization for 9
full months thereafter. Herrera admitted that Hernandez hired
Guevara without any work authorization documents, under a
false name, and that he found out about the situation a month
after Guevara was hired. Herrera also let it slip out that when
he found out about Guevara’s unlawful employment, he told
Matos about it, although Matos feigned not learning about this
until June 16, 2003. Thus, the evidence showed that both
Herrera and Matos were aware that Guevara was working with-
out legal authorization from around November 2002, until June
24, 2003 and did not say a word about it.5 The evidence
showed that it was only after Local 32B-J began organizing a
few weeks before that, and Guevara came out as a lead Local
32B-J organizer, that Respondent all of a sudden became inter-
ested in perfect compliance with the immigration laws.
It is clear that this request was pretextual, to set Guevara up
to discharge him. Bozzi credibly testified that Ronnie Hernan-
dez forewarned Bozzi in the Taco Bell parking lot that since the
workers had begun organizing for Local 32B-J, there were “a
lot of changes that were [going to be] coming down.” Hernan-
dez explained that there was “a lot of pressure from the top and
there was going to be a big crackdown on ‘papeles de immi-
gracíon’ or immigration papers.” Sanchez, who was seques-
tered and did not hear Bozzi’s testimony, supported Bozzi’s
testimony in this regard, stating: “Ronnie said that North Hills
was going to start getting rid of undocumented workers.” Since
Hernandez was not called as a witness by Respondent, an infer-
ence must be drawn that Hernandez’ testimony would not have
supported Respondent’s case in this regard. Hudson Moving
and Storage Co., Inc., supra. I find the evidence clearly estab-
lished that Respondent formulated its plan to get rid of Guevara
as a direct result of the commencement of Local 32B-J’s orga-
nizing campaign at Respondent’s facilities.
Moreover, aside from Guevara, Labrador, and Walter
Gutierrez, all lead employee organizers for Local 32B-J,
Herrera could name no other employee who it asked to submit
work authorization papers at any time, although employees had
always worked for Respondent without authorization papers.
Thus, there was obvious disparate treatment here.
Taking into account the total context in which the request for
Guevara’s documents was made, noting the suspicious timing
of these requests, Respondent’s prior casual attitude regarding
immigration documents, prior to Local 32B-J’s organizational
efforts, the disparate treatment, and the contemporaneous
8(a)(1) violations, I find that Respondent’s demand that
Guevara provide it with documentation establishing that he was
legally entitled to work in the United States was motivated by
anti-Local 32B-J animus in violation of Section 8(a)(1) of the
Act. See, Michael’s Painting, Inc., 337 NLRB 860, 868
(2002). (The Board found that the employer violated Section
8(a)(1) where, prior to employee picketing, Respondent freely

5 ALJ: And did you at any time demand and look, if he doesn’t have
working papers he can’t work; did you ever say that?
Herrera: I said that.
ALJ: But he kept working.
Herrera: And Ronnie went back to him to tell him and he said that
his papers hadn’t processed and he will get his paper[s] right away.
ALJ: But he was hired that way and although . . . Balmore was
working and earning money for the work that he did, he was paid under
a woman’s name that was an employee and wasn’t working at that time
and not entitled to any money.
Herrera: Correct.
ALJ: So you were issuing checks to somebody who was not entitled
to these checks and giving them to somebody who was not entitled to
that money under a different name; is that correct?
Herrera: Yes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
allowed false documentation, but after employee picketing, it
demanded documentation of authorization to work in this coun-
try.)
As set forth above, General Counsel’s prima facie showing
that Guevara’s discharge was unlawfully motivated is very
powerful, taking into account Guevara’s status as a lead em-
ployee organizer, his activities on behalf of Local 32B-J and
Respondent’s knowledge of them, the animosity that Respon-
dent has exhibited against both Local 32B-J and Guevara, the
suspicious timing of his discharge, occurring a month after
Local 32B-J’s organizing campaign commenced, and Respon-
dent’s condonation of not only Guevara’s, but countless other
employees’ illegal working status in the past.
Respondent’s affirmative defense that it was required to dis-
charge Guevara once it found out he was not legally entitled to
work in the United States is in direct contradiction to the record
evidence. The Board has stated, “Where an employer hires an
employee with knowledge that he is not legally entitled to work
in the United States, it cannot assert that it would have termi-
nated the employee on the basis of his immigration status.”
Met Food, 337 NLRB 109, 112 (2001); A.P.R.A. Fuel Oil buy-
ers Group, 320 NLRB 408, 416 (1985); Country Window
Cleaning Co., 328 NLRB 190 fn. 2 (1999). In Guevara’s case,
Respondent admits not only that Hernandez, a Section 2(11)
supervisor, hired Guevara despite the fact that at the time he
was hired, he provided no papers whatsoever establishing he
was legally entitled to work in the United States, rather the
evidence also established that Hernandez himself orchestrated
the arrangement allowing Guevara to work under a false name,
Irma Guevara, and to be paid illegally by Respondent under
that false name. In this regard, Guevara credibly testified that
when he arrived to work on his first day back in October 2002,
Hernandez said to him, “You are going to work under the name
Irma Guevara.”
The evidence also established that this type of arrangement
was commonplace at Respondent for years and changed only
when Local 32B-J began organizing at Respondent. For exam-
ple, Herrera admitted that Respondent knowingly hired Vir-
ginia Bonilla under the false identity of Gema Paula. The
documents in Paula’s personnel file confirm this. It also know-
ingly hired Pilar Gutierrez under the false identity of Sandra
Campos despite the fact that there was some “suspicion” con-
cerning the identification Gutierrez originally submitted. The
evidence also disclosed numerous other employees were hired
by Respondent using false identification including: Rosa Her-
nandez a/k/a Yesika Romero and Elisa Membrano a/k/a Sulma
Contraras. It is noteworthy that in none of these cases did Re-
spondent reject the employees’ original fake identifications and
it hired all of them any way. Further, in none of these cases did
Respondent discharge the individuals when it discovered they
had used false identification to get hired.6 It was not until Lo-
cal 32B-J began organizing Respondent’s employees in May
2003 that the lead employee organizers began to get fired, un-

6 It is noteworthy that at the time Gutierrez was hired under the name
Sandra Campos, she had not yet been branded as the lead employee
organizer for Local 32B-J.
der the guise of Respondent’s concern for complying with its
obligations under the immigration laws.
Herrera’s contention that numerous employees have been
discharged for not possessing valid work authorization papers
was shown to be an outright lie. In response to General Coun-
sel’s subpoena duces tecum requesting Respondent to produce
documents showing all employees who were discharged within
the last 3 years for not having appropriate working papers, Re-
spondent produced not a single document . Levy conceded that
she knows of no other employees who were discharged for not
possessing valid paperwork. The only examples of employees
discharged for not having valid work authorization that anyone
could name were Guevara and Walter Gutierrez, two of Local
32B-J’s staunchest supporters.
The facts of this case are markededly similar to those found
in Victor’s Café 52, Inc., 321 NLRB 504 (1996). In that case,
when an employee began working for the employer, he had
none of the required documents from the Immigration Depart-
ment that would have made his employment lawful, and the
employer demanded none. However, on the same day that
Respondent learned that the employee had signed a union au-
thorization card, it demanded to see the employee’s social secu-
rity card and immigration papers, and thereafter, discharged the
employee. The Board found, “Considering the numerous
8(a)(1) violations already found evidencing a clear union ani-
mus, together with the timing here, [the employer’s defense that
it had to comply with the immigration laws] can best be de-
scribed as transparent. As stated above, although employers are
legally obligated to be sure that their employees are properly
documented, they cannot use the immigration statutes as a
means of discriminating against its employees because of their
union activities.” Id. At 514.
The evidence clearly establishes that Respondent’s defense is
similarly transparent, considering the numerous 8(a)(1) viola-
tions here, the suspicious timing, the condonation and the evi-
dence of extreme anti-Local 32B-J animus. Accordingly, I find
Respondent’s discharge of Guevara is a clear violation of Sec-
tion 8(a)(1) and (3) of the Act.
Respondent’s Issuance of Three Written Warnings and a 3-Day
Suspension to José Labrador Violated Section 8(a)(1) and (3) of
the Act
Labrador’s activities on behalf of Local 32B-J, included
driving all the employees to the Taco Bell meeting and being
one of Local 32B-J’s most outspoken supporters. Respondent
had knowledge of these activities. The timing of the acts of
discipline imposed on Labrador, including all three warnings
and the suspension, within days of the Taco Bell meeting, es-
tablish an unlawful motivation for Respondent’s commence-
ment of a campaign of discipline aimed at Labrador. In this
regard, Labrador informed Respondent that he had given his
name to Local 32B-J on May 8, and he was seen at the Local
32B-J meeting on June 13. A mere 10 days after the Taco Bell
meeting, Respondent issued Labrador the first of several warn-
ings. I conclude these facts support a finding that General
Counsel has established a strong prima facie case that all of the
discipline issued to Labrador, including the warnings issued on
June 23, June 24 and August 1, and the 3-day suspension issued
NORTH HILLS OFFICE SERVICES 1101
on June 24, were in retaliation for his activities on behalf of
Local 32B-J. Wright Line, supra.
The burden now shifts to Respondent to demonstrate that it
would have issued all of the above-described discipline to Lab-
rador, even in the absence of his protected activities. Wright
Line, supra. As set forth below, Respondent has failed to even
come close to meeting its burden.
Respondent’s defense to this allegation is that it issued this
warning to Labrador because Labrador “keeps on showing up
later than 6:00 p.m.” Labrador does not dispute this and admits
he has arrived late to work often in the past. Labrador testified
that he always signed in with the correct time, and therefore,
management was always made aware of past instances when
Labrador arrived late for work.7 In fact, Matos admitted that
Respondent condoned Labrador’s constant latenesses for 7 full
years without ever issuing Labrador any written warnings. It
was not until Labrador became a lead supporter of Local 32B-J
that Respondent commenced a campaign of discipline aimed at
Labrador.
The record is replete with instances of disparate treatment
with regard to the discipline here. Herrera testified that Re-
spondent always gives verbal warnings first for instances in-
volving lateness. However, Labrador credibly testified that he
never received any such verbal warnings in all his years work-
ing for Respondent, and Matos himself admitted that he never
spoke to Labrador about his latenesses at any time before this
written warning was issued.
Additionally, it is undisputed that not one of the eight other
employees who rode to work with Labrador on June 23, 2003,
and who signed in at the same time he did, received any disci-
pline for their lateness on that day or at any other time. The
warnings submitted by Respondent, covering the time frame of
2001–2004 establish that none of these employees, many of
whom, had been traveling to work with Labrador for years,
were issued any warnings, either verbally or in writing. Thus,
this evidence of disparate treatment severely undermines Re-
spondent’s defense that the warning was justified based on
Labrador’s actions. I find Respondent has failed to rebut Gen-
eral Counsel’s prima facie case, Hanson Aggregateo Central,
Inc., 337 NLRB 870 (2002), and conclude that by issuing the
June 23 warning letter, Respondent violated Section 8(a)(1) and
(3) of the Act.
Respondent’s Issuance of a Written Warning and 3-Day Sus-
pension to Labrador on June 24, was Unlawfully Motivated
and in Violation of Section 8(a)(1) and (3) of the Act
Respondent’s defends its issuance of the warning and sus-
pension issued to Labrador on June 24, by contending it was
justified due to Labrador’s actions on that day. However, the
record evidence establishes otherwise. It is abundantly clear
that by issuing Labrador the June 24 warning and suspension,
Respondent strayed far from its well established past practices
of allowing employees to talk to each other during working
time and hours, and issuing a minimum of three written warn-
ings for such violations before suspending employees. Addi-

7 Respondent failed to comply with General Counsel’s request in its
Subpoena Duces Tecum for all the sign in logs from 2001–2004, which
would have supported Labrador’s testimony in this regard.
tionally, Respondent’s actions in failing to adequately investi-
gate the matter prior to making its determination to suspend
Labrador and in singling Labrador out of the group of employ-
ees involved and disciplining only him, evidenced that the true
reason for its issuance of the written warning and suspension on
June 24 was not because his behavior at the supply closet, but
rather, was because of his support for Local 32B-J.
By issuing Labrador this warning, Respondent veered from
its admitted practice of allowing its employees to talk freely to
one another during working time. In this regard, Herrera stated,
“If employees are mopping and cleaning and talking to one
another while they are mopping, and it’s not affecting their
jobs, there is no policy against talking while working.” Herrera
further admitted that Respondent has no restriction against
employees talking while waiting on line to get supplies, and
Labrador testified that he previously had engaged in similar
conversations all the time. Respondent’s own witness, Rene
Iraheta, who was the only supervisor present during the inci-
dent in issue, stated Labrador’s actions leading up to the warn-
ing and suspension consisted of taking part in a conversation in
front of the supply closet. Having been the only supervisor
present during the incident, I credit Iraheta’s recollection of
what happened over Matos’ and Herrera’s who I found to be
untruthful witnesses, and whose testimony in this regard was
based solely on hearsay. Thus, I find the evidence is quite clear
that Labrador’s actions did not violate any of Respondent’s
established past practices.
Iraheta also testified that Labrador had a 5 minute conversa-
tion with employees by the supply closet, and was talking to
them about Local 32B-J. In this regard, Iraheta testified that he
told Herrera “there was some kind of discussion there with
respect to the Union.” Matos testified: “[W]hen he’s down-
stairs getting the stuff, he’s not to hold the cleaners to talk
about his propaganda” and “they don’t want to hear that stuff.
They don’t want to hear it.” Even assuming that was true and
Labrador was soliciting the others to join Local 32B-J, Respon-
dent presented no evidence establishing that it maintained a
valid no solicitation rule at its facility. The only similar warn-
ings Respondent was able to locate for solicitation were issued
to Sandra Hernandez and Maria Mendoza on July 1, 2003.
However, Respondent’s issuance of these two warnings was
found to be an unfair labor practice in Case 29–CA–25930.
Thus, although Respondent contends that what Labrador was
doing was a violation of its rules, it hasn’t shown that it acted
lawfully and, as a regular practice, disciplines employees for
similar conduct.
Moreover, Respondent failed to show that it issued Labrador
three warnings prior to suspending him. Matos first testified
that Respondent is required to issue three warnings to an em-
ployee before it can suspend or discharge the employee. Matos
then contradicted his testimony and testified that Respondent’s
practice was to suspend an employee without issuing them any
prior warnings for violations such as conversing outside the
supply closet. The June 24, warning itself indicates otherwise.
In this regard, Herrera and Matos, who signed the warning,
thought it was important to note on that warning, “This is your
third warning.” I find that those words would not have been
inserted onto the warning had they contained no importance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
Moreover, Labrador credibly testified that Herrera told him that
because he had three warnings, Labrador had to leave.
Respondent was totally unable to establish that three prior
warnings were issued to Labrador prior to his suspension. In
this regard, although Labrador was issued one written warning
for lateness the day before, his first in 7 years of employment
with Respondent, and if the written warning he received the
next day for conversing outside the supply closet is considered
another warning, Labrador’s file is still devoid of any mention
of a third such written warning. Although Herrera told Labra-
dor that he had given him warnings “way before” when Labra-
dor was still working in 445, Labrador’s personnel file contains
no mention of any such earlier warnings. When questioned
further, Matos blurted out that he had no idea when the first
warning relied upon in issuing Labrador the suspension was
issued, stating, “I don’t know when, but he was notified be-
fore.”
Respondent’s records show that Respondent has an estab-
lished practice of issuing its employees numerous written warn-
ings without ever taking the drastic action of suspending em-
ployees. For example, the records provided by Respondent
disclosed that Antonia Pereira was issued five written warnings
in 2 years, three for insubordination, and one for a no call/no
show and one for faulty work, without ever being suspended.
Gerard Joseph was issued four written warnings in 1½ years,
one for insubordination and three for unexcused absences,
without ever being suspended. Beatrice Gonzalez was issued at
least four written warnings, three or four for leaving her work
post and one for a no call/no show, and three verbal warnings,
without ever being suspended. Both Xiomara Vilchi and Car-
los Martinez were each issued four written warnings, without
being suspended, prior to being discharged. Dysna Erita was a
no call/no show for almost an entire month before Respondent
issued her a written warning. This written warning to Erita,
dated January 31, 2001, states, “should you receive several
warning notices, it can be grounds for dismissal,” thus indicat-
ing that several warnings would be necessary prior to Respon-
dent taking any drastic actions such like dismissal.
Herrera admits that in all the time he has worked for Re-
spondent, Respondent has never before suspended an employee
for allegedly disrupting other employees. Thus, it is clear that
by suspending Labrador for 3 days after receiving his very first
written warnings in his seven prior years of employment, Re-
spondent deviated from its prior practice of issuing several
warnings without ever suspending. Additionally, the record
evidence established that the discipline imposed upon Labrador
for conversing outside the supply closet that day was unduly
harsh, to say the least. In fact, Levy admitted that if an em-
ployee was waiting on line for supplies and was talking to other
employees as he waited, he would not deserve to be suspended.
To add on to the many reasons why this warning was clearly
pretextual, is the fact that, again, Respondent both failed to
adequately investigate the matter prior to making its determina-
tion to suspend Labrador and singled out Labrador out of the
group of employees involved in the incident, disciplining only
him. With regard to Respondent’s utter failure to properly
investigate the incident at hand, Herrera stated that all the in-
formation contained in his report written on June 24, came from
supervisor Rene Iraheta. Herrera concedes that he never both-
ered to speak to Labrador, or any of the other workers involved
before handing in his report and issuing the discipline to Labra-
dor. The Board has considered an employer’s failure to con-
duct a fair investigation and to give employees the opportunity
to explain their actions before imposing disciplinary action to
be significant factors in finding discriminatory motivation.
Johnson Freightlines, supra; Publishers Printing Co., supra;
Emergency One, Inc., supra. I find that by issuing Labrador
both a written warning and a 3-day suspension for his participa-
tion in an incident involving employees to whom Respondent
never even bothered to speak, establishes its action were pre-
textual.
Finally, the evidence further establishes disparate treatment.
In this respect, Respondent freely admits that there were at least
three or four employees involved in the alleged argument on
June 24, which served as the impetus for issuing Labrador the
written warning and 3-day suspension on that same day. How-
ever, Respondent also acknowledges that only Labrador re-
ceived any discipline for the incident that occurred on that eve-
ning, despite the fact that Iraheta testified that he told Herrera
and Matos that all of the employees, including one named Ed-
gar Osombia, were arguing at the time. The Board recognizes
that an inference of unlawful motivation may be drawn from
evidence of blatantly disparate treatment. Meritor Automotive,
Inc., 328 NLRB 813, 816 (1999); New Otani Hotel & Garden,
325 NLRB 928 fn. 2 (1998). I find the evidence of disparate
treatment in this instant case provides a powerful indication that
Respondent’s issuing Labrador a warning and a suspension on
June 24, 2003, was unlawfully motivated. I conclude Respon-
dent has utterly failed to meet its burden under Wright Line,
supra. Accordingly, I conclude that the June 24 written warn-
ing and 3-day suspension were in violation of Section 8(a)(1)
and (3) of the Act.
Respondent’s defends its issuance of the written warning to
Labrador on August 1, by claiming that the warning was in
response to a tenant complaint about Labrador’s work. In this
regard, Levy testified that whenever there is a problem with an
employee’s performance, the employee’s supervisor always
speaks to the employee about the problem prior to issuing the
employee a written warning. However, Labrador credibly testi-
fied that at no time did anyone from Respondent ever mention a
word to him about tenant complaints about his work perform-
ance. Levy’s testimony support’s Labrador’s on this point.
She testified that if a supervisor had spoken to Labrador about
problems with his performance prior to the issuance of this
warning, there would most likely be a notation about this talk in
Labrador’s personnel file. No such notation could be found in
Labrador’s personnel file. Additionally, Levy testified that had
she been made aware of a supervisor’s prior discussions with
Labrador about his performance, she would have mentioned
this fact in the August 1 warning letter. Nothing about prior
verbal discussions or warnings is contained in the August 1,
written warning. Thus, I find that, although it is a conceded
past practice for Respondent to speak to its employees about a
problem with their performance prior to issuing a written warn-
ing, Respondent strayed from this practice in Labrador’s case,
by issuing him the August 1, warning without first notifying
NORTH HILLS OFFICE SERVICES 1103
him of the problem and giving him an opportunity to improve.
In fact, Labrador’s immediate supervisor, Rene Iraheta, gave
only compliments to Labrador, stating that Labrador did “good
work” for him. I find the blatant disparate treatment by Re-
spondent provides a strong indication of pretext. Meritor
Automotive, Inc., supra; New Otani Hotel & Garden, supra.
Further, although Labrador was not the only employee re-
sponsible for cleaning First Data’s kitchen floor, Labrador,
once again, was the only employee disciplined for not cleaning
the kitchen properly. Indeed, Matos’s testimony that no one
else is responsible for cleaning First Data’s kitchen floors at
any time is completely implausible. It makes no sense that
Respondent would not assign other employees to clean those
floors on the occasions that Labrador is unable to do so because
of other assignments or absence. In fact, Labrador credibly
testified that between June 14 and August 1, 2003, when Lab-
rador was called to clean other buildings, floaters cleaned the
floors of 265 more than 20 times. Thus, it is not clear that Lab-
rador was solely responsible for First Data’s problems, or that
he was responsible for them at all. I conclude, Respondent has
not satisfied its Wright Line burden with regard to issuing this
written warning to Labrador. Accordingly, I conclude Respon-
dent has violated Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that Respondent has engaged in violations of
Section 8(a)(1) and (3) of the Act, I find Respondent must be
ordered to cease and desist therefrom, and take affirmative
action designed to effectuate the policies of the Act.
With respect to the violations of Section 8(a)(1) described
above, I will set forth in the Order that Respondent must there-
fore cease and desist therefrom. I will also set forth in the Or-
der that Pilar Gutierrez and José Labrador be made whole for
all monetary losses that they may have incurred as a result of
Respondent’s unlawful conduct. The make whole remedy shall
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950) with interest as prescribed in for the Re-
tarded, 283 NLRB 1173 (1987).
I will also set forth in the Order that Respondent expunge
from its records any references to the unlawful discipline and
discharges, set forth above.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended8
ORDER
The Respondent, North Hills Office Services, Inc., its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees, suspending its employees, is-
suing its employees warnings, or imposing any other discipline
in order to discourage its employees because of their member-
ship in, or activities on behalf of Service Employees Interna-

8 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 pur-
poses.
tional Union, Local 32B-J, AFL–CIO, or any other labor or-
ganization.
(b) Demanding that its employees provide birth certificates,
social security cards or any other documents establishing that
they are legally entitled to work in the United States solely to
discourage their membership in, or activities on behalf of the
Union, or any other labor organization.
(c) Impliedly threatening to discharge its employees, or to
threaten harm, or in any other manner to discourage its employ-
ees support for their membership in or activities on behalf of
the Union, or any other labor organization.
(d) Interrogating its employees about their activities on be-
half of or their attendance at meetings held by the Union, or any
other labor organization.
(e) Surveilling its employees or giving the impression of
surveillance of their activities on behalf of the Union, or any
other labor organization.
(f) Interrogating its employees about their complaints about
their job and or promises to remedy such complaints in order to
discourage their support for the Union or any other labor or-
ganization.
(g) Directing its employees not to speak to representatives
of the Union, or any other labor organization.
(h) Threatening its employees that their terms and condi-
tions of employment will not change if they select the Union, or
any other labor organization, as their collective bargaining rep-
resentative.
(i) In any like or related manner interfere, restrain, or coerce
its employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days of this Order make whole Pilar Gutierrez
by removing from our records any reference to her discharge on
July 1, 2003, and to any warnings to which this discharge was
reduced.
(b) Within 14 days of this Order make whole José Labrador
for his unlawful suspension, in the manner set forth in the
Remedy provision of this Decision, and remove from our re-
cords any reference to the suspension issued to him on June 24,
2003, and the warnings issued to him on June 23, 24, and Au-
gust 1, 2003.
(c) 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 necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its
principal office and place of businesses located at 244 Cross-
ways Park Drive West, Woodbury, New York and at its other
facilities located at 265 Broad Hollow Road, 425 Broad Hallow
Road and 445 Broad Hollow Road, copies of the attached No-
tice marked “Appendix”9 in both English and Spanish. Copies

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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
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 the Respondent and immedi-
ately on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where Notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the Notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing 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, 2003.
(e) 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 September 15, 2004.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected
activities
Therefore, we assure you:
WE WILL NOT fire you, suspend you, issue you warnings or
impose any other discipline upon you to discourage your mem-
bership in or activities on behalf of Service Employees Interna-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tional Union, Local 32B-J, AFL–CIO, or any other labor or-
ganization.
WE WILL NOT demand that you provide us with birth certifi-
cates, social security cards, or any other documents establishing
that you are legally entitled to work in the United States solely
to discipline you for your activities on behalf of Service Em-
ployees International Union, Local 32B-J, AFL–CIO, or any
other labor organization.
WE WILL NOT impliedly threaten to fire you or threaten to
harm you in any manner to discourage your support for or ac-
tivities on behalf of Service Employees International Union,
Local 32B-J, AFL–CIO, or any other labor organization.
WE WILL NOT question you about your activities on behalf of
or your attendance at meetings held by Service Employees
International Union, Local 32B-J, AFL–CIO, or any other labor
organization
WE WILL NOT spy on you or give you the impression that we
are spying on your activities on behalf of Service Employees
International Union, Local 32B-J, AFL–CIO, or any other labor
organization.
WE WILL NOT ask you to tell us about complaints you have
concerning your job and promise to remedy them in order to
discourage your support for Service Employees International
Union, Local 32B-J, AFL–CIO, or any other labor organiza-
tion.
WE WILL NOT direct you not to speak to representatives of
Service Employees International Union, Local 32B-J, AFL–
CIO, or any other labor organization
WE WILL NOT threaten you that your terms and conditions of
employment will not change if you select Service Employees
International Union, Union, Local 32B-J, AFL–CIO, or any
other labor organization, as your collective bargaining repre-
sentative.
WE WILL NOT in any like or related manner frustrate your ex-
ercise of any of the rights stated above.
WE HAVE reinstated Pilar Gutierrez and we will make whole
Pilar Gutierrez by removing from our records any reference to
her discharge on July 1, 2003, and to any warnings to which
this discharge was reduced.
WE WILL make whole José Labrador for any loss of pay he
may have suffered as a result of our alleged discrimination
against him and will remove from our records any reference to
the suspension issued to him on June 24, 2003, and the warn-
ings issued to him on June 23, June 24, and August 1, 2003.
NORTH HILLS OFFICE SERVICES, INC.