Ocean State Job Lot

National Labor Relations Board - Board Decisions

Nov 30, 2005

345 N.L.R.B. 1267 (N.L.R.B. 2005)

OCEAN STATE JOB LOT
345 NLRB No. 109
1267
Ocean State Jobbers, Inc., d/b/a Ocean State Job Lot
and United Food and Commercial Workers In-
ternational Union, Local 328.1 Case 1–CA–
42065
November 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 30, 2005, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief and a brief in support of
the judge’s decision, and the Respondent filed a reply
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions2 and
briefs and has decided to affirm the judge’s rulings, find-
ings3 and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ocean State Jobbers, Inc.,
d/b/a Ocean State Job Lot, North Kingston, Rhode

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 No exceptions were filed to the judge’s dismissal of 8(a)(1) allega-
tions that the Respondent’s director of logistics, Richard Giordano,
threatened employees with closure of the warehouse if they selected the
Union as their bargaining representative, and that alleged agent,
Rodolfo Gamez, told the three discriminatees herein that they had been
suspended for engaging in union activity.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the 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 adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by discharging Elio Padilla, Edgar Anez, and Juan
Saravia, we do not rely on his statement that “[c]hanging one’s social
security number is not an easy, or a quick thing to do; changing one’s
name is even harder.” There is no record evidence to support this
statement. We also do not rely on fn. 19 of the judge’s decision. Con-
trary to the finding therein, the Respondent did contend that five of the
other names on Giordano’s nine-name list had invalid I-9 information
in the form of nonmatching social security numbers.
Island, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Crista Elzeneiny, Esq., for the General Counsel.
Joseph D. Whelan, Esq., of Providence, Rhode Island, for the
Respondent.
Alfred Gordon, Esq., of Boston, Massachusetts, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case under
the National Labor Relations Act (the Act) was tried before me
in Pawtucket and Providence, Rhode Island, on May 2–4, 2005.
On September 9, 2004,1 United Food and Commercial Workers
International Union, Local 328, AFL–CIO, filed the charge in
Case 1–CA–42065 alleging that Ocean State Jobbers, Inc.,
d/b/a Ocean State Job Lot (the Respondent), had committed
various violations of the Act. On February 28, 2005, after ad-
ministrative investigation of the charges, the General Counsel
of the National Labor Relations Board (the Board) issued a
complaint alleging that, on August 16, the Respondent violated
Section 8(a)(3) and (1) of the Act by suspending employees
Elio Padilla, Juan Saravia, and Hector Pacheco because of their
activities on behalf of the Union. (As discussed infra, the em-
ployee whom the complaint names as “Hector Pacheco” identi-
fied himself at trial as “Edgar Anez”; as this individual testified
under oath that Edgar Anez is his true name, he will be referred
to as such hereafter, except when the evidence requires the use
of “Pacheco” to refer to him.) The complaint, as originally
issued, further alleged that the Respondent violated Section
8(a)(1) by an agent’s telling employees that they had just been
suspended because they had engaged in union activities. And
the original complaint further alleged that, on September 22,
the Respondent violated Section 8(a)(3) and (1) by discharging
Padilla, Anez, and Saravia because of their union activities. The
Respondent duly filed an answer to the complaint admitting
that this matter is properly before the Board but denying the
commission of any unfair labor practices. At trial, over the
objection of the Respondent, I granted a motion by the General
Counsel to amend the complaint also to allege that the Respon-
dent, by one of its supervisors, once threatened its employees
with plant closure and job losses if they selected the Union as
their collective-bargaining representative.
Upon the testimony and exhibits entered at trial,2 and after
consideration of the briefs that have been filed, I enter the fol-
lowing findings of fact and conclusions of law.

1 All dates mentioned are in 2004, unless otherwise indicated.
2 Certain passages of the transcript have been electronically repro-
duced; some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, I sometimes eliminate without ellipses words that have become
extraneous; e.g., “Doe said, I mean, he asked . . .” becomes “Doe asked
. . .” Capitalization in quoted documents is original (e.g., “Social Secu-
rity number”). All bracketed entries have been made by me.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
Jurisdiction and Labor Organizations’ Status
As it admits, the Respondent is a corporation that has an of-
fice and warehouse in North Kingston, Rhode Island, from
which it is engaged in the business of retail sales at various
locations within Rhode Island and Massachusetts. In the con-
duct of those business operations, the Respondent annually
derives gross revenues in excess of $500,000 and purchases and
receives at the North Kingston facility goods valued in excess
of $50,000 directly from suppliers located at points outside
Rhode Island. I therefore find and conclude that at all material
times the Respondent has been an employer that is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. As the parties stipulated at trial, at all material times
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
Background
The Respondent employs about 2800 employees, about 160
of whom work on three shifts at its warehouse. Many of the
warehouse employees, including the alleged discriminatees, are
from Bolivia and speak only Spanish. Before being suspended,
the alleged discriminatees worked on the Respondent’s second
shift at the warehouse.
On May 22, 2003, the Social Security Administration sent to
the Respondent a “No-Match letter.” In the letter, under the
topic-line “Why are you getting this letter [?],” is stated:
Some employee names and Social Security numbers
that you reported on the Wage and Tax Statements (Forms
W-2) for tax year 2002 do not agree with our records. We
need corrected information from you so that we can credit
your employees’ earnings to their Social Security re-
cord[s]. It’s important because these records can determine
if someone is entitled to Social Security retirement, dis-
ability and survivors[’] benefit[s], and how much he or she
can receive. If the information you reported to us is incor-
rect, your employee may not get the benefits he or she is
due.
Under “IMPORTANT” (which word is in capital letters and in
boldfaced type) is:
This letter does not imply that you or your employee
intentionally gave the government wrong information
about the employee’s name or Social Security number.
Nor does it make any statement about an employee’s im-
migration status.
You should not use this letter to take any adverse ac-
tion against an employee just because his or her Social Se-
curity number appears on the list, such as laying off, sus-
pending, firing, or discriminating against that individual.
Doing so could, in fact, violate state or federal law and
subject you to legal consequences.
Under the heading “What You Should Do,” The Social Security
Administration’s 2003 letter states:
It would be a great help to us if you could respond
within 60 days with the information that you are able to
correct so that the Social Security Administration can
maintain an accurate earnings records for each employee
and make sure your employees get the benefits they are
due.
The letter recites that a list of nonmatching social security
numbers is attached, and it closes with instructions the em-
ployer can follow to make corrections. The attachment has 185
social security numbers. The Respondent took no action on the
2003 No-Match letter, but the Social Security Administration
took no action against it or any of its employees as a result.
On April 22, 2004, the Social Security Administration sent
the Respondent a second No-Match letter, the text of which is
identical to that of the 2003 letter. The 2004 No-Match letter
attached a list of 156 social security numbers, 92 of which had
appeared on the 2003 No-Match list.3 As discussed infra, of the
156 numbers on the 2004 list had been specified by current
warehouse employees on their W-4 forms. Two of those 85
numbers were those that had been specified by alleged dis-
criminatees Anez and Padilla. The social security number that
alleged discriminatee Saravia had specified on his W-4 form
was not on the 2004 No-Match list (or on the 2003 No-Match
list).
Raymond Conforti, the Respondent’s director of human re-
sources, identified two letters that the Respondent sent to the
employees whose social security numbers had appeared on the
2004 No-Match list. The first letter is undated, but Conforti
testified that he sent it in May 2004. The May letter states:
Ocean State Job Lot has been requested to update its
personnel files for some of its employees. You are one of
the employees who’s [sic] file is being updated. To ensure
the accuracy of our personnel file we are requesting that
you provide us the following information:
Then the letter has blanks for full name, “current” social secu-
rity number, current telephone number, and emergency contact.
The letter concludes: “After filling the requested information,
please return the form to the Human Resources Department by
May 26, 2004.”

3 Although no exhibit separately displays which of the 2003 numbers
the Social Security Administration repeated in 2004, review of the two
lists disclose that they are these: 337–96–5687; 046–25–7632; 247–65–
3970; 036–24–3846; 037–90–6653; 654–79–8657; 601–43–8672; 039–
53–5076; 037–62–5058; 036–29–1673; 534–98–8768; 563–42–8765;
036–65–3270; 147–88–9446; 039–45–6879; 442–23–1027; 037–60–
1866; 542–09–7550; 089–58–7186; 012–07–9022; 089–46–0927; 059–
11–7568; 036–25–2653; 611–87–0913; 036–70–6114; 032–24–8740;
059–32–7880; 657–98–4463; 038–41–7839; 034–22–7312; 034–30–
1409; 036–67–7856; 037–45–9062; 091–83–9092; 035–43–4509; 038–
76–4021; 176–43–2786; 017–67–8645; 541–41–4988; 035–78–2352;
546–56–4768; 645–90–5676; 292–98–3478; 048–76–5336; 059–80–
3279; 404–05–8130; 646–88–7755; 042–11–6633; 037–65–9382; 037–
65–3352; 605–34–8891; 038–36–2264; 026–39–1495; 034–51–1590;
241–66–5431; 630–11–8929; 205–86–9529; 035–02–5521; 034–55–
0101; 582–02–1228; 039–76–5037; 016–45–0162; 058–35–7497; 632–
10–1141; 033–12–6056; 034–98–6791; 031–70–6628; 042–85–7452;
623–21–2911; 631–06–8472; 032–48–9354; 576–34–4780; 036–58–
4725; 039–60–4491; 676–20–9501; 036–42–3714; 632–86–6147; 037–
88–4598; 038–75–8620; 035–64–8792; 036–60–3182; 035–02–0536;
601–69–4522; 045–96–9274; 390–78–4821; 225–76–8942; 034–07–
4512; 034–23–6473; 036–17–8360; 642–98–0923; 046–48–1842; and
029–60–6029.
OCEAN STATE JOB LOT 1269
On June 2, Conforti sent another letter to the employees
whose numbers had been listed on the 2004 No-Match letter.
Each copy of the letter stated that the Social Security Admini-
stration had notified the Respondent that some of the employ-
ees’ social security numbers “may be wrong,” that the Respon-
dent was attaching a copy of the W-4 form that the employee
had previously executed, and that: “You have until June 16,
2004 to correct this situation with the Social Security Admini-
stration.” In boldfaced type, the letter further states:
We have no plans to terminate any individual because of this
issue. This is between you and the Social Security Admini-
stration.
The employee is thereafter told that he or she may take an un-
paid “day or two off to hopefully resolve this issue with Social
Security.”
Facts in Dispute
As detailed below, Richard Giordano, the Respondent’s di-
rector of logistics, testified that he, alone, made the decision to
suspend the alleged discriminatees. Anez, who, again, testified
that his real name is, in fact, “Edgar Anez,”4 testified that, in
June, Giordano and Supervisor Alf Reid called a meeting of
some of the second-shift employees. Giordano distributed cop-
ies of the June 2 letter, copies of the W-4 forms that the gath-
ered employees had previously submitted, and blank W-4
forms. Through a translator, Giordano told the gathered em-
ployees that there was a problem because their social security
numbers did not match. Giordano told the employees not to be
frightened and to look over their previously submitted W-4
forms and make any needed corrections on a new one. Anez
testified that, at some unspecified time later, he approached
Giordano in his office. According to Anez, Giordano told him
“[t]o change one or two digits of the social security number. . . .
He saw that as the solution.” On June 14, Anez submitted a
new W-4 form as “Hector Pacheco.” On the form, Anez also
specified a new social security number.5
The Organizational Attempt and the Alleged
Threat by Giordano
Union Representative Carlos Gonzalez testified that union
organizers held some meetings and made some home visits
with first-shift employees in May, but the Union did not contact
any second-shift employees until later. Gonzalez testified that
in mid-July Padilla, Anez and Saravia signed union authoriza-
tion cards. (Those cards were produced by the Union during
Gonzalez’ cross-examination, but were not placed in evidence.)
Gonzalez testified that Padilla, Anez, and Saravia also supplied
him with names and addresses of other second-shift employees

4 Actually, Anez first answered that is real name was “Edgar Alice”
(or something that sounded like “Alice,” but which was definitely not
“Anez”).
5 At trial, Anez refused to give his true social security number, and
the Respondent moves to strike all of his testimony because of that
refusal. As I find herein that the Respondent had freely allowed, if not
encouraged, its employees to submit false social security information,
Anez’ true social security number (if any) is ultimately irrelevant. I
therefore deny the Respondent’s motion. See the Board’s Rules and
Regulations, Sec. 102.44(c).
who could be visited, and sometimes Padilla, Anez, or Saravia,
or two of those three, would accompany him on visits to homes
of other second-shift employees. Padilla, Anez, and Saravia
testified consistently with Gonzalez on these points.
The Respondent conducts Friday production meetings for
each warehouse shift. Overall supervisor of the warehouse,
David Reardon, and Warehouse Area Supervisors Alfonso Reid
and Dawn Strong, were usually present at those meetings.
Giordano attended some of those meetings. Padilla and Saravia
testified that at one of the Friday meetings Giordano made bla-
tant threats of warehouse closure and job losses if the employ-
ees selected the Union. Anez testified at length about one of the
Friday meetings at which Giordano spoke, but Anez did not
mention any statement that Giordano may have made about
closing the warehouse. Giordano, Reardon, and Strong denied
that Giordano ever made any such threat.
Padilla further testified that, at a subsequent employee meet-
ing that was held by Giordano, all seats were taken by other
employees. He, Anez, and Saravia stood together behind
Giordano. During the meeting, Giordano held up an authoriza-
tion card and said that the employees should not give their ad-
dresses and telephone numbers to other employees because
they would only be bothered by those who were coming to
homes to solicit for the Union. Further, according to Padilla,
“When he said that, he turned and he looked at us.” There was
no denial of this testimony.
The Suspensions
Alleged discriminatee Saravia testified that on August 16, at
the start of his shift, Supervisors Strong and Reid took him to
Reardon’s office where alleged discriminatees Anez and Padilla
were already waiting. Reardon told the three alleged discrimi-
natees that he had received a telephone call from Social Secu-
rity, that their social security numbers did not match their
names, and that they must turn in the badges that they had
theretofore used to clock in each day. Saravia told Reardon that
it could not be possible that the names and numbers did not
match, that he did not accept Reardon’s statement about a tele-
phone call, and that he needed to see something in writing from
Social Security. Reardon responded that the employees could
“go and argue about it with human resources.” A guard then
escorted the alleged discriminatees outside of the warehouse. In
the parking lot, they decided to go back and approach Conforti
in human resources.
At the Respondent’s human resources office, the employees
asked both Giordano and Conforti why they were being sus-
pended. Padilla testified:
Mr. Giordano began talking to us indicating that a let-
ter had arrived from Social Security saying that we could
no longer work there. . . .
We asked him to show us the letter.
[Giordano said,] “Well, I don’t really have the letter
. . . . Social Security called me and they told me on the
phone that you could no longer work because your social
security numbers do not match.” . . .
So we said, “Well, how could the Social Security be
calling on the phone?” . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1270
[H]e said, “After 9/11 this country is much more se-
cure, more controlled and unfortunately it’s a matter of na-
tional security.” . . . They [the Social Security Administra-
tion] said that you cannot work.” . . .
[H]e told us that we had 45 days to hand over a certifi-
cation from Social Security. He said, “If you bring me a
certified letter from Social Security tomorrow, tomorrow
you have your job back.”
Anez and Saravia testified consistently with Padilla about the
August 16 interview with Giordano and Conforti. Specifically,
Anez testified that Giordano told the alleged discriminatees
that, “after 9/11, the country was feeling more insecure and it
was a matter more of security.”
Alleged Telephone Call(s) to Gamez
The complaint alleges that Group Leader Gamez is an agent
of the Respondent within Section 2(13) of the Act and that, on
August 17, Gamez made a threat to the alleged discriminatees.
The General Counsel further argues that the alleged threat con-
tained a binding admission that the alleged discriminatees were
discharged because of their union activities. It is undisputed
that Gamez is one of several bilingual employees who has
served as a translator for the Respondent’s supervisors. Gamez,
however, did not serve as a translator for any of the communi-
cations described herein. (When Gamez and the alleged dis-
criminatees conversed, they did so in Spanish.)
Padilla testified on direct examination that, during the day
following the suspensions, he met at Anez’ house with Anez,
Saravia, and Union Representative Gonzalez. They met outside,
and they decided to telephone Gamez. Because a neighbor was
making noise by cutting his grass, the four men got into Anez’
automobile; Anez used his phone, with the speaker on, to dial
Gamez. Padilla spoke to Gamez. According to Padilla:
I . . . said, “What happened, why did they fire us?”
“Look,” he said, “I never thought that you would be
mixed up in this thing. Your brother was a good worker.
You, too. The union is for lazy people. You’ve made the
Bolivians look bad here. Now the company sees the Bo-
livians in a bad light.”
Padilla further testified that, after he hung up, Anez said that he
would call Gamez and ask the same question. Anez dialed a
number, and Padilla heard Anez ask for Gamez, but at that
point Padilla got out of the automobile because it was hot, so he
did not hear any exchange between Gamez and Anez.
On cross-examination, Padilla acknowledged, and the Gen-
eral Counsel stipulated, that the only reference in Padilla’s
investigatory affidavit about a telephone call is:
About a week after my suspension, I spoke with my team
leader, Rodolfo Gamez, on the telephone and he indicated to
me that it was because I had promoted the Union, now the
Bolivians were viewed negatively. He said, “The Union is for
lazy [sic] and now nobody has any confidence in the Bolivi-
ans because they were now held in a dim view by the Com-
pany.”
When then asked if the telephone call to Gamez had not oc-
curred a week after he was suspended, Padilla replied: “I’m not
sure.”
Gonzalez and Anez testified in their direct examinations that,
on August 16 or 17, at a point when Padilla was still present, in
a second telephone call from the automobile, which call was
conducted with a speaker facility turned on, Gamez made
strong statements that the suspensions had been because of the
alleged discriminatees’ union activities. On cross-examination,
Anez acknowledged that his investigatory affidavit, which was
taken by counsel for the General Counsel in October, does not
mention the alleged telephone calls to Gamez.
During Saravia’s direct examination, the General Counsel
did not ask about the telephone conversation with Gamez (even
though, of course, that conversation had been made the subject
of a separate paragraph of the original complaint). The Respon-
dent, however, raised it during Saravia’s cross-examination.
Saravia testified that he was present when Padilla and Anez
called Gamez and that they had reported to him, immediately
after their conversation, that Gamez had stated that the alleged
discriminatees had been suspended because of their union ac-
tivities. When asked when that telephone call was, Saravia
testified the he could not remember. Saravia was then asked
and he testified:
Q. Okay. Who was actually on the phone?
A. I just told you, it was Padilla and Hector [Pacheco,
a/k/a Edgar Anez] who spoke.
Q. Okay. Were they both on the phone together?
A. No, one by one. Of course, they would have had to
have spoken one by one.
Q. Okay. When you say “of course you would have
to spoken one by one” that’s because just one person can
use the phone, correct?
A. Yes.
Saravia further testified on cross-examination that, when the
telephone call was made, the three alleged discriminatees were
in the yard “leaning on the car.”
On redirect examination, Saravia testified that Gonzalez was
“there” when Padilla and Anez spoke to Gamez on the tele-
phone (on the date that Saravia could not remember). Also,
Saravia changed his testimony that he was leaning against
Anez’ car when Padilla and Anez spoke to Gamez on the tele-
phone. Saravia then testified that he was inside of Anez’ car
when Padilla, then Anez, spoke to Gamez. Saravia did not
change his testimony, however, that he learned only from re-
ports of Padilla and Anez what Gamez had supposedly said.
(That is, Saravia did not testify that there was a speaker phone
on, or that he could otherwise hear Gamez’ side of the conver-
sation.) When asked specifically if Gonzalez was present when
the call from inside the automobile was made, Saravia replied,
“I’m confused between that day and another day when there
were other people.”
Upon a motion that the Respondent made pursuant to rule
102.118, the General Counsel produced the affidavit that
Saravia had executed during the investigation of the charge.
The affidavit had been taken in Spanish by the counsel for the
General Counsel herself. Because Saravia’s affidavit was in
OCEAN STATE JOB LOT 1271
Spanish, and because the General Counsel had not provided the
Respondent with a translation, I allowed the Respondent to
place the affidavit in evidence as an exhibit for which it could
seek a translation. On brief, page 9, the Respondent asserts:
Most importantly, there was no mention of the alleged phone
calls in his [Saravia’s] sworn affidavit given to Region 1 on
October 11, 2004. Moreover, there is nothing in his affidavit
about alleged threats [by Giordano] to close the warehouse.
[See R. Exh. 1.]
The General Counsel has not moved to strike these assertions
as unsupported by the evidence, and I find them to be accurate.
The Alleged Discriminatees’ Postsuspension Visits
to the Warehouse
Anez testified that, about a week after the suspensions, he re-
turned to get his last paycheck. He was also given a check for
vacation pay that was due to him.
Saravia testified that “the following week” he returned to the
warehouse to get his last paycheck. He met Giordano who
again assured him that he could return to work “when the prob-
lem is solved.” Saravia showed Giordano what apparently was
an annual statement of qualifying earnings from Social Secu-
rity. Giordano looked at the letter but said that it was “no evi-
dence.” Saravia then left.
Padilla testified that on August 15 or 16, he returned to the
plant gate and distributed flyers for the Union. Padilla identi-
fied a check for vacation pay that the Respondent issued to him
on August 26.
Adverse Examinations of Conforti and Giodorno
The General Counsel called Conforti, the Respondent’s di-
rector of human resources, as an adverse witness. Conforti testi-
fied that he did not see the 2003 No-Match letter from the So-
cial Security Administration until shortly before the trial. Ac-
cording to Conforti, the 2003 letter had gone to the Respon-
dent’s payroll office and that, although that office reports di-
rectly to him, no one in that office transmitted the letter to him.
Conforti testified that he did receive the April 22, 2004, No-
Match letter and that he showed it to his superior, Richard
Portno, vice president of operations. Portno instructed Conforti
to issue the above-quoted May letter to all employees who were
on the 2004 No-Match list.6 Conforti acknowledged that no
supervisor ever told employees, before August 16, that they
might be suspended if they did not have their social security
information corrected. Conforti was then asked and he testified:
Q. Was a decision made at any time about employees
that did not respond to the June 16, 2004 deadline?
A. At some point, several weeks probably after this
[the June 2 letter], a decision was made that due to the
ramifications of having INS or someone else come into the
organization and stripping our force in half, that we should
probably try to put something in motion, not on a high
level but on a low-key level of looking at and letting three

6 Unless otherwise indicated, all subsequent references to a No-
Match list are to the list that was included in the 2004 letter from the
Social Security Administration.
or four employees go at a time as we hire new people so
that hopefully we could get that number down. . . .
Eventually [the decision would affect] some of them,
like I said a little while ago, we would cycle, we would
cycle through so [as] not to disrupt the distribution, not to
put fear into these people that they were going to be losing
their jobs. Because if we did this, once again, in a mass, it
could have been catastrophic for the organization.
Conforti testified that by “cycled through” he meant that em-
ployees would be suspended for up to days, “[s]o that hopefully
they could clear their issues with their I-9 information and
come back to work.”7 Conforti allowed, however, that he was
aware that the Social Security Administration was not question-
ing the employees’ status to work in the United States. Conforti
agreed that the only employees who were suspended pursuant
to the decision that he had described (and whose author he did
not name) were Padilla, Anez, and Saravia.
Conforti further acknowledged that his notes indicate that 84
of the listed 85 warehouse employees whose social security
numbers are on the 2004 No-Match list submitted new W-4
forms specifying new social security numbers.8 As well, 16 of
the 84 who changed their numbers also changed the names on
their W-4 forms. For 12 of those who changed their names (as
well as numbers), only the mother’s surname was dropped.9
Alleged discriminatee Padilla was one of those 12 employees.10
Of the 16 who changed their names, however, four made the
changes complete (as well as changing their numbers). Those
four were: Nelson Vasques, who became “Victor Quinones”;
Oscar Lopez, who became “Jesus Baez”; Cinthya (sic) Varas,
who became “Victoria Alcobar”; and alleged discriminatee
Edgar Anez who became “Hector Pacheco.” (Saravia, whose
social security number had not been on the No-Match list, had
no change to make.) Conforti did not question any employee’s
changes on his or her W-4 form, but he denied that anyone in
management suggested to the employees that they fabricate
new names or numbers.
On examination by the Respondent, Conforti testified that,
during the August 16 interview that he and Giordano conducted
with Padilla, Anez, and Saravia:
[I]t was told to them once again that the reason for the suspen-
sion was the fact that they didn’t have proper I-9 information.
And Dick [Giordano] had mentioned to them at least twice if
not three times that they were valued employees, they were all
good workers, and that he was hoping that they would be able
to come up with the right paperwork to come back. And Dick

7 A period of 45 days, Conforti testified, was selected to be consis-
tent with Employer policy that re-hired employees who have been
separated any longer lose all seniority.
8 The sole exception was one Miguel Cueva who submitted a new
W-4 form, but with the same number.
9 See Acme Die Casting, 309 NLRB 1085, 1108 fn. 32 (1992) (“In
the Hispanic culture, the family, or father’s, surname is place inside,
with the mother’s name outside.”).
10 “Elio Padilla-Cespedes” became “Elio Padilla,” a change that
would have confused neither the Respondent nor the Social Security
Administration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1272
reiterated what we were doing for alien cards that were expir-
ing.
Conforti further testified that, in the past, employees whose
resident-alien cards are set to expire within 30 days are sus-
pended for 45 days “hoping that they can come up with the
proper A card and reinstate them.”
The General Counsel also called Giordano as an adverse wit-
ness. Giordano testified that, as director of logistics, he has “the
fiscal responsibility for both distribution and transportation.”
When asked what responsibility he had in regard to personnel,
Giordano answered: “To the extent that if someone is going to
be suspended, terminated, I would know about it.” Giordano
testified that he never saw the first three pages of the No-Match
letter, but, at some point in time between April and August that
he could not remember, at a meeting that included Conforti,
Portno showed him the single page that contained the 2004 No-
Match list. The three men discussed the fact that some ware-
house employees “did not have proper paperwork.” Giordano
testified that Portno instructed Conforti to send letters to the
employees to get them to go to the Social Security Administra-
tion. Giordano flatly denied that Portno instructed him to do
anything about the No-Match list at that time. When asked if
Portno ever instructed him to do anything about the employees
on the list, Giordano replied that “[h]e did so after I had told
Mr. Reardon to suspend 3 people who did not have correct
paperwork.” Giordano testified that he told Reardon to suspend
Padilla, Anez, and Saravia on August 16. Giordano was asked
and he testified:
Q. Now, can you tell me, at any time did you make a
decision to investigate a number of employees’ social se-
curity numbers in 2004?
A. We knew that we had a lot of people that looked
like they had problems with their social security number.
As a matter of fact, it could have been as large as half the
population, okay? . . . With that concern of ours, if we ever
had to let go all of these people at one time through a sus-
pension, we would be at a loss to get merchandise to the
stores.
Giordano testified that it was he, alone, who selected Padilla,
Anez, and Saravia for suspension, and that he did so by “ran-
dom picking.” When asked how he did so, Giordano replied
that he chose the alleged discriminatees from a list of nine em-
ployees, a copy of which was received in evidence as General
Counsel’s Exhibit 9.11 Giordano was asked and he testified:
Q. How did you pick Mr. Pacheco, Mr. Saravia and
Mr. Padilla out of the list that’s Exhibit 9, this list of
names, to be the first individuals to be suspended?
A. I’m not sure I can answer that. I don’t know. I
think I mentioned that to you before also. It was just, they
were there. I can’t say it any simpler than that. It was just,

11 The Tr. 79, L. 20, is corrected to change “Yogo 1 to 4” to “Jovo
Montofur,” whose is the first name on the list. In order, the other names
on the list (which is untitled) are Juan Tumax, Jose Hurtado, Elio
Padilla, Edwin Estrada, Nelson Vaelasquez, Jesus Baez (a/k/a Oscar
Lopes, supra), Edgar Anez (a/k/a Hector Pacheco, supra), and Juan
Saravia.
they were there. I can’t say it any clearer than that. I wish
that I could, but I can’t.
JUDGE EVANS: How was General Counsel’s 9 created?
[It is] just a list of names and some other indications such
as dates [of absences].12 Do you know who created this
list?
THE WITNESS: No, I do not, your Honor.
JUDGE EVANS: Do you know who gave it to you?
THE WITNESS: No, I don’t.
JUDGE EVANS: Next question.
BY MS. ELZENEINY [for the General Counsel]: Was
the list based on some handwritten notes that you had?
A. Not handwritten notes that I had, no, no handwrit-
ten notes that anyone had.
Q. Okay. So you have no idea where this list came
from?
A. I don’t know who generated that list, no, I do not.
JUDGE EVANS: But this is the list from which you
picked those three names [for suspensions]?
THE WITNESS: Yes.
Giordano further flatly denied that he consulted with anyone
(such as Portno) before he made the decision to suspend
Padilla, Anez and Saravia. Giordano testified that he, alone,
decided that the suspensions of Padilla, Anez, and Saravia were
to be for 45 days; he picked 45 days because that was the usual
length of suspensions to return information at the operation.
Giordano acknowledged that, although he only selected em-
ployees for suspension from the second shift, some employees
whose social security numbers were on the No-Match list were
on the first and third shifts. Giordano denied that he had ever
instructed any supervisors to instruct any employees to report
false names or numbers on their W-4 forms.
The Respondent’s Evidence
The Respondent called Gamez who testified that he was a
“team leader” on the second shift. Gamez testified that he had
no prior knowledge that Padilla, Anez, and Saravia were going
to be suspended. Alfonso Reid, who is the manager of the sec-
ond shift told him about the suspensions after the fact. About a
week after the suspensions, and not at any time before then,
Padilla called him at home and stated that he did not understand
why he had been suspended. Padilla started talking about the
Union, but Gamez testified that he replied to Padilla: “I don’t
know nothing, and that’s it.” Gamez flatly denied that he had
ever received a telephone call from Anez.
Dawn Strong is an area manager at the Respondent’s ware-
house. She reports to Reid who reports to Reardon. (Gamez
reports directly to Strong.) Strong testified that she attended
production meetings that were conducted by Giordano and that
she attended “more than one” in which Giordano mentioned the
Union. When asked if Giordano made any comments about the
warehouse and the Union, Strong replied, “I don’t know what
you mean.” Strong then testified that Giordano told the em-
ployees that the warehouse was being expanded, and she denied

12 Giordano, after first trying evasiveness, acknowledged that, at
some point during the investigation of the charges, the Respondent told
the Region that absences had had something to do with the suspensions.
OCEAN STATE JOB LOT 1273
that Giordano said that the warehouse might close or that em-
ployees were going to lose their jobs.
Reardon testified that he attended all of the meetings that
were conducted by Giordano. He testified that Giordano
stressed that the warehouse was expanding, and Reardon denied
that Giordano said anything about the employees losing their
jobs. On cross-examination, Reardon testified that the Respon-
dent uses “a lot of bilingual associates” to translate for the su-
pervisors.
Giordano denied stating anything during his talks concerning
the Union about the future of the warehouse, other than to tell
the employees that the warehouse was being expanded. The
Respondent did not ask Giordano or Conforti any questions
about the reasons for the suspensions of the alleged discrimina-
tees.
Findings and Conclusions
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel has the initial burden of establishing that the
employees’ union activity, or other protected activity, was a
motivating factor in the employer’s adverse personnel decision.
See 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, Inc. v. NLRB, 462 U.S. 393
(1983). The necessary elements of such a prima facie showing
are union activity by the employee or employees, employer
knowledge or suspicion of that activity, and antiunion animus
on the part of the employer. Wal-Mart Stores, 340 NLRB 220,
221 (2003), (citing Briar Crest Nursing Home, 333 NLRB 935,
936 (2001)). Once the General Counsel has made an initial
showing of discrimination, the burden of persuasion shifts to
the employer to prove that it would have taken the same action
even if the employee had not engaged in protected activity.
Wright Line, supra at 1089.
Evidence of unlawful motivation under Wright Line may
take various forms, the most usual of which are threats, interro-
gations, instructions not to engage in union activities, or the
like. In this case, the General Counsel has alleged two threats as
constituting conduct that disclosed unlawful animus. The first is
the alleged threat by Giordano to close the warehouse if the
employees selected the Union; the second is the alleged state-
ment of Gamez, after the suspensions, that the employees had
been suspended because of their union activities.
Alleged Threat by Giordano
Padilla and Saravia, but not Anez, testified that Giordano
threatened to close the warehouse if the employees selected the
Union as their collective-bargaining representative. The Gen-
eral Counsel did not seek to make an allegation of threat of
plant closure, however, until well beyond the 11th hour. That
is, although the alleged discriminatees’ affidavits had been
taken in October 2004, and although the formal complaint had
issued on February 28, 2005, it was not until the beginning of
the trial on May 2 that counsel for the General Counsel an-
nounced that she then was seeking from the Regional Director
the authority to amend the complaint to include a plant closure
allegation. And counsel for the General Counsel did not actu-
ally move to include the allegation in the complaint until she
rested on May 3 at the end of the day.
I find that the affidavits of none of the three alleged dis-
criminatees included a threat of plant closure. I have found
above that Saravia’s affidavit includes no mention of a plant
closure threat by Giordano. The Respondent did not secure
from Padilla or Anez concessions that their affidavits do not
mention a threat by Giordano, but from the circumstances it is
apparent that those affidavits also do not. If, when they were
taken a full 6 months before the hearing, any of the October
affidavits had included mention of a threat of warehouse clo-
sure by Giordano (or by any other supervisor), the General
Counsel would not have had to have been scrambling, even
through the second day of trial, to obtain the Regional Direc-
tor’s approval to include the allegation in the complaint. The
affidavits of all three alleged discriminatees were taken by
counsel for the General Counsel who is obviously a sophisti-
cated labor lawyer. Counsel would have at least asked the al-
leged discriminatees when first taking the affidavits if any su-
pervisor of the Respondent had ever suggested to them that
something bad might happen if the Union were successful in its
organizational attempt. The alleged discriminatees must have
replied in the negative, or the allegation that Giordano threat-
ened to close the warehouse would have been included in the
original complaint.
The Board has held that a threat of plant closure because of
union activities is one of the most serious that an employer can
make and that such a threat is a per se violation of the Act.13 If
the Board’s estimation of the gravity of such a threat has any
logical basis whatsoever, it is that the threat would make a pro-
found, and unforgettable, impression on any employee who
hears it. I therefore believe that, had the threat actually been
made, Padilla and Saravia would have mentioned it in their
October affidavits.
Giordano was shown to be a false witness on many accounts,
and the Respondent’s other witnesses were mostly led to testify
that Giordano had not threatened the employees with closure of
the warehouse. Nevertheless, the testimony that Giordano made
the threat impressed me as just something that Padilla and
Saravia came up with at the last minute to supply an element of
animus. Their failures to include the threat of warehouse clo-
sure in their October affidavits, and the failure of counsel for
the General Counsel to offer even the slightest hint of a legiti-
mate explanation for so belatedly amending the complaint to
include such a serious allegation, impel me to find, as I do, that
the threat was not made. I therefore shall recommend dismissal
of the (late-amendment) 8(a)(1) allegation of the complaint that
the Respondent, by Giordano, threatened the employees with
closure of the warehouse if they selected the Union as their
collective-bargaining representative.
Alleged Threat by Gamez
Assuming that Gamez is the Respondent’s agent for all rele-
vant purposes, I would not credit the testimonies of Gonzalez,
Padilla, Anez, and Saravia beyond what Padilla testified to in
his affidavit.14 If Anez and Saravia had experienced a relevant
telephone call with Gamez during the day of, or the day after,

13 Mid-South Drywall, 339 NLRB 480 fn. 6 (2003), citing Avondale
Industries, 329 NLRB 1064, 1093 (1999).
14 See Alvin J. Bart & Co., 236 NLRB 242 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1274
their suspensions, they assuredly would have mentioned that
experience in their investigatory affidavits. Also, if the calls
had been made on a speaker-phone, inside the car, as Gonzalez,
Padilla, and Anez testified, Padilla would have mentioned that
fact in his affidavit, and Saravia would not have testified on
cross-examination that the call was made while he, Padilla, and
Anez were outside (“leaning on”) the car and that, “of course,”
Padilla and Anez spoke to Gamez “one by one.” I further do not
credit the testimonies of Gonzalez, Anez, and Padilla that two
calls were made to Gamez on the day after (or the day of) the
suspensions. If there had been any truth to that testimony, or to
Saravia’s testimony on cross-examination, Saravia would have
remembered that the call (or the calls) happened on the day of,
or the day after, his suspension. Moreover, if there had been a
call that proximate to the suspensions, Padilla would not have
testified in his affidavit to only one telephone call with Gamez
and that it had occurred: “[a]bout a week after my suspension.”
I believe, and find, that there was only one telephone call to
Gamez by the alleged discriminatees, that Padilla alone made it,
and that Padilla made it (as Gamez testified and as Padilla’s
affidavit states) 1 week after the suspensions. I further find that
Gamez said to Padilla no more than, as Padilla’s affidavit
states, that he was disappointed in Padilla for adhering to the
Union.15 Of course, such a statement is not reflective of animus
which would support a finding of a violation of the Act, even if
it had been made by an agent or supervisor of the Respondent.16
Additionally, having been made 1 week after the suspensions,
the statement by Gamez is not probative evidence of any
knowledge of the reason for those suspensions. By that point,
Padilla had distributed flyers for the Union outside the ware-
house gates, and it is equally inferable that Gamez was refer-
ring to that activity when he stated that he was disappointed in
Padilla.
Moreover, assuming that Gamez somehow expressed an atti-
tude of animus toward the prounion sympathies of the alleged
discriminatees, there is no basis for holding that Gamez is an
agent of the Respondent within Section 2(13). The only evi-
dence to which the General Counsel refers in support of the
agency allegation is that Gamez had sometimes served as a
translator for the Respondent’s supervisors. On brief, the Gen-
eral Counsel cites no case for the proposition that a translator,
solely because he or she is a translator, is an agent for all pur-
poses. The Respondent, however, cites compelling authority to
the opposite effect; to wit: Jumbo Produce, 294 NLRB 998
(1993). In that case, the Board rejected an agency contention
where the employee whose status was in dispute had thereto-
fore “acted solely as an interpreter.” I reach the same conclu-
sion. Moreover, it is to be noted that several bilingual employ-
ees in addition to Gamez have also served as translators for the
Respondent. The General Counsel’s contention would make
each such employee a full-time agent of the Respondent; of

15 I find that Padilla’s testimony on affidavit that Gamez “indicated”
that he had been suspended because of union activities was Padilla’s
expression of his impression but not testimony of what Gamez had
actually said.
16 See Raysel-IDE, 284 NLRB 879 (1987), citing Fibracan Corp.,
259 NLRB 161, 171–172 (1981).
course, there is no authority for such a proposition. I shall
therefore recommend dismissal of the 8(a)(1) allegation of the
complaint that the Respondent, by Gamez, told employees that
they had been suspended because of their union activities.
Other Evidence of Animus and 8(a)(3) Violations
The absence of evidence of express threats by the Respon-
dent’s supervisors or agents does not end the inquiry about
animus under Wright Line. The Respondent knew about the
organizational attempt at the time of the suspensions (actually
discharges, as discussed, infra). In view of that circumstance,
and in view of the absolutely false nature of the reasons that
have been advanced for the suspensions, I find that the record
reflects unlawful animus toward the union activities of the Re-
spondent’s employees.
On May 22, 2003, the Social Security Administration sent
the Respondent a letter with an attachment that listed 185 social
security numbers which did not match the Administration’s
records. The Respondent ignored the letter.17 On April 22,
2004, the Social Security Administration sent the Respondent a
letter of identical text and with an attachment that included 156
numbers that did not match. 92 of the 156 numbers that were
attached to the 2004 letter had also been attached to the 2003
letter. That is, the Respondent allowed 92 employees to con-
tinue working with possibly false social security numbers for at
least 11 months without doing anything about it.
Conforti acknowledged that, of the 85 warehouse employees
whose numbers were on the 2004 No-Match list, 84 changed
their W-4 forms to specify a new social security number; and 4
of those 84 also changed their names completely (that is, not by
just dropping the second Spanish surname). Except for the al-
leged discriminatees, the Respondent accepted those changes
without comment.
Changing one’s social security number is not an easy, or a
quick, thing to do; changing one’s name is even harder. By
receipt of the 88 alterations (84 numbers and 4 names) on the
W-4 forms, the Respondent knew that wholesale abuse of the
social security system was being practiced by a substantial
percentage of its warehouse employees. It moreover is equally
obvious that, until the advent of the Union, the Respondent was
determined to do nothing about that abuse.
By its inaction on the 2003 No-Match letter, the Respondent
implicitly demonstrated that it had no intention of enforcing the
social security laws against its employees. And the Respon-
dent’s June 2 letter made the express, plainest-of-terms, bold-
faced type, statement that:
We have no plans to terminate any individual because of this
issue. This is between you and the Social Security Admini-
stration.
Nevertheless, Respondent suspended two employees whose
social security numbers were on the 2004 No-Match list
(Padilla and Anez), and it suspended one employee whose
number was not on the list (Saravia). The issue before the
Board is: why? Assuming the truth of Conforti’s testimony that
only a payroll clerk received the 2003 No-Match letter, neither

17 I do not believe Conforti’s (hearsay) testimony that someone in
the payroll office had mislaid the 2003 letter when it was received.
OCEAN STATE JOB LOT 1275
Conforti nor Giordano offered any reason for abandoning the
Respondent’s June 2 (express, boldfaced) assurance that it was
not going to take it upon itself to enforce the social security
laws—other than to testify, incredibly, that the Respondent
selected three employees for suspension in order to avoid losing
even a greater number of employees in a hypothetical future
raid by the immigration authorities.
Giordano testified the he, and he alone, made the selections
of Padilla, Anez, and Saravia for suspension.18 The Respondent
did not question Giordano about how he came to make his se-
lections. When the General Counsel examined Giordano, he
testified that Portno showed him the No-Match list that was
attached to the 2004 Social Security Administration letter but
that Portno did not show him the No-Match letter itself. Appar-
ently sensing that that testimony was incredible, as it was,
Giordano then testified that he chose Padilla, Anez, and
Saravia, not from the No-Match list, but from another list
which had nine names. When asked where the nine-name list
came from, Giordano answered: “I don’t know who generated
that list, no, I do not.” When asked how he selected Padilla,
Anez and Saravia from the list-of-unexplained-origin, Giordano
replied:
I’m not sure I can answer that. I don’t know. I think I
mentioned that to you before also. It was just, they were
there. I can’t say it any simpler than that. It was just, they
were there. I can’t say it any clearer than that. I wish that I
could, but I can’t.
Therefore, the Respondent’s defense requires a finding that,
only on a basis which Giordano could not explain, from a list
whose origin Giordano also could not explain, Giordano just
happened to chose for discharge three employees who had been
making home visits with the union representative, the alleged
discriminatees. This is too much to believe, and I do not.
Giordano did not testify what he told the three alleged dis-
criminatees when they gathered in Conforti’s office on August
16. Conforti testified that Giordano told the alleged discrimina-
tees that “the reason for the suspension was the fact that they
didn’t have proper I-9 information.” Therefore, even according
to the Respondent’s version of events, the defense for the sus-
pension allegations has shifted from lack if I-9 information
(Conforti) to honest “random picking” from a list of unex-
plained origin (Giordano).19 At trial, Giordano and Conforti did
not assert that the tragedies of September 11, 2001, were part of
the reason for the suspensions, but Padilla and Anez were
credible in their testimonies that on August 16 Giordano ad-
vanced that reason also. The propounding of these shifting,
cynical, and false reasons for the suspensions lead me to find,
as I do, that the real reason lay in animus toward the union
activities of its employees. See Montgomery Ward & Co., 316
NLRB 1248, 1253 (1995), enfd. 125 F.3d 1064 (7th Cir. 1997),
where it is stated:

18 I do not believe that testimony. I believe that Portno (or someone
above Portno) made the decision. For the sake of analysis, however, I
shall accept Giordano’s testimony in this regard.
19 The Respondent does not contend that all six of the other employ-
ees on the list-of-nine had invalid I-9 information.
Finally, the Board has inferred knowledge where the
reason given for the discipline is so baseless, unreason-
able, or contrived as to itself raise a presumption of
wrongful motive. Whitesville Mill Service Co., supra [307
NLRB 937 (1992)]; De Jana Industries, 305 NLRB [845]
at 849 [(1991)]; Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966). Even where the em-
ployer’s rationale is not patently contrived, the Board has
held that the “weakness of an employer’s reasons for ad-
verse personnel action can be a factor raising a suspicion
of unlawful motivation.” See generally General Films, 307
NLRB 465, 468 (1992).
See also Cox Communications, 343 NLRB 164 (2004), and
cases cited therein (finding of “knowingly false” reason for
discharge “supports an inference that [the alleged discrimina-
tee’s] discharge was motivated by his union activity”).
Also the disproportionate number of union adherents se-
lected for the suspensions (3 out of 3 on the No-Match list of
156, or 3 out of 3 on Giordano’s from-the-ethers list of 9) also
proves the element of animus that is required by Wright Line.
See Glenn’s Trucking, 332 NLRB 880 (2000), enfd. 298 F.3d
502 (6th Cir. 2002) (such “blatant disparity” is “statistical evi-
dence” of animus). See also San Angelo Packing Co., 163
NLRB 842, 846 (1967), and Continental Radiator Corp., 283
NLRB 234, 248 (1987).
I further find that the Respondent knew, or at lest suspected,
that Padilla, Anez, and Saravia were engaged in union activi-
ties. I credit Padilla’s undenied testimony that during an anti-
union meeting Giordano turned and looked at the alleged dis-
criminatees when he stated that some employees were visiting
other employees at their homes to solicit union authorization
cards. This is what the alleged discriminatees had been doing,
and by the motion of his body Giordano was letting them, and
everyone else present, know that he knew it.
When the Respondent issued the last paychecks for the al-
leged discriminatees, it also issued to them any vacation pay
that accrued to that point. The Respondent would not have done
that unless the suspensions were actually discharges, and I find
that they were.
In summary, I find that the General Counsel has made out a
prima facie case that Padilla, Anez, and Saravia were unlaw-
fully suspended and discharged. Further, because the Respon-
dent’s purported rationale for discharging all three employees is
not supported by any probative evidence,20 I find that the Re-
spondent failed to establish that it would have discharged the
alleged discriminatees even in the absence of their known union
activities. NLRB v. Transportation Management Corp., supra.
Accordingly, I find and conclude that the Respondent violated
Section 8(a)(3) and (1) by suspending and discharging Padilla,
Anez, and Saravia.

20 The Respondent was offering no probative evidence in Giordano’s
double-hearsay testimony that “it could have been John Card” who
determined, after the suspensions had been imposed, that Saravia’s I-9
information was not valid.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1276
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including offering
reinstatement to Padilla, Anez, and Saravia and make them
whole for any loss of earnings and other benefits in accordance
with the provisions of F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).21
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, Ocean State Jobbers, Inc., d/b/a Ocean
State Job Lot, North Kingston, Rhode Island, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending or discharging employees, or otherwise dis-
criminating against employees, because they have engaged in
activities on behalf of, or because they have held sympathies
for, United Food and Commercial Workers International Union,
Local 328, AFL–CIO.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Elio
Padilla, Edgar Anez, and Juan Saravia full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make Elio Padilla, Edgar Anez, and Juan Saravia whole
for any loss of earnings or other benefits suffered as a result of
the discrimination against them, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspensions and dis-
charges, and within 3 days thereafter notify Elio Padilla, Edgar
Anez, and Juan Saravia in writing that this has been done and
that the suspensions and discharges will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other

21 See, however, Tuv Taam Corp., 340 NLRB 756 (2003) (“Typi-
cally, an individual’s immigration status is irrelevant to a respondent’s
unfair labor practice liability under the Act. Questions concerning the
employee’s status and its effect on the remedy are left for determination
at the compliance stage of a case.”).
22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post in conspicuous places at its facility in North King-
ston, Rhode Island, copies of the attached notice marked “Ap-
pendix.”23 Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the Respon-
dent’s authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 16, 2004.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The allegations of unfair labor practices not found are dis-
missed.
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 no-
tice.
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 activi-
ties.
WE WILL NOT suspend or discharge you, or otherwise dis-
criminate against you, because of your membership in, sympa-
thies for, or activities on behalf of United Food and Commer-
cial Workers International Union, Local 328, AFL–CIO.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed to
you by federal law.
WE WILL, within 14 days of the Board’s Order, offer Elio
Padilla, Edgar Anez, and Juan Saravia immediate reinstatement

23 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.”
OCEAN STATE JOB LOT 1277
to their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Elio Padilla, Edgar Anez, and Juan Saravia
whole for any loss of earnings or other benefits resulting from
our discrimination against them, less any net interim earnings,
plus interest.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the August 16, 2004 suspensions and
discharges of Elio Padilla, Edgar Anez, and Juan Saravia, and
WE WILL, within 3 days thereafter, notify them in writing that
this has been done and that the suspensions and discharges will
not be used against them in any way.
OCEAN STATE JOBBERS, INC., D/B/A OCEAN STATE JOB
LOT