Quality Millwork Corp.

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 591 (N.L.R.B. 1985)

QUALITY MILLWORK CORP
Quality Millwork Corp . and its alter ego Quality
Door Co . and Francisco Lopez and Local 485,
International Union of Electronic , Electrical,
Technical , Salaried - and Machine Workers,
AFL-CIO. Cases 2-CA-20312 and 2-CA-
20312-2
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR- RELATIONS BOARD
An Agency of the United States Government
25 September 1985
. DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 7 May 1985 Administrative Law. Judge Joel
P. Biblowitz issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order - of the administrative law
judge as modified below and orders that the Re-
spondent, Quality Millwork Corp. and its alter ego
Quality Door Co., Bronx, New York, its officers,
agents, successors, and assigns, shall take the.action
set forth in the Order as modified.
1. Insert the following as paragraph 2(c)- and re-
letter-the subsequent paragraphs.
"(c) Expunge from Lopez' personnel records and
all other files any reference to his discharge and
notify him, in writing,, that this has been done, and
that evidence of his unlawful discharge will not be
used as a basis for future personnel action against
him."
2. Substitute the attached notice for that of the
administrative law judge.
' The General Counsel alleged, inter alia, that the Respondent violated
Sec 8 (a)(1) of the Act by telling its employees to provide inaccurate in-
formation to the Board and the Union The judge dismissed the allega-
tion , and the General Counsel filed an exception While we agree with
the fudge 's conclusion, we do so solely because the credited record testi-
mony is insufficient to support the allegation
z We shall modify the recommended Order to require that the Re-
spondent expunge from its files any reference to Lopez' unlawful dis-
charge and notify him, in wnting , that it has done so and that evidence
of the unlawful discharge will no be used a a basis for future personnel
actions against him See Sterling Sugars, 261 NLRB 472 (1982)
591
WE WILL NOT threaten our employees with dis-
charge for assisting a union in organizing our em-
ployees.
WE WILL NOT inform our employees that they
do not have to honor a National Labor Relations
Board subpoena that was properly served on them.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees for appearing at an
office of the National Labor Relations Board to
testify.
WE WILL NOT in any like or related manner
interfere with, restrain; or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act. -
WE WILL offer Francisco Lopez immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify Lopez that we have removed
from our files any reference to his unlawful dis-
charge and that the discharge will not be used
against him in any way.
QUALITY MILLWORK CORP. AND ITS
ALTER EGO QUALITY DOOR CO.
Judy M. Sandler, Esq, for the General Counsel.
Allen J. Kozupsky, Esq. (Weiss & Kozupsky), for the Re-
spondent
. DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was tried before me in New York, New York, on
10, 11, and 13, December 19841 and 28 February 1985.
The complaint and notice of hearing issued on 16' May
and was based on an unfair labor practice charge filed by
Francisco Lopez on 4 April and an unfair labor practice
charge filed by Local 485 , International Union of Elec-
tronic, Electrical, Technical, Salaried and Machine
Workers, AFL-CIO (the Union), on 9 April. The com-
plaint alleges that Quality Millwork Corp. (Respondent
Millwork) and Quality Door Co. (Respondent Door)
i Unless indicated otherwise , all dates referred ' to herein are for the
year 1984
276 NLRB No. 69
592 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
(collectively referred to as Respondents) are alter egos
and a single employer within the meaning of the Act and
that they threatened their employees with discharge if
they engaged in activities on behalf of the Union, told
their employees to supply inaccurate information regard-
ing their addresses and job functions to the Board and
the Union, advised its employees not to comply with
Board subpoenas, and discharged Lopez due to his union
or other protected, concerted activities, and because he
testified at a prior unfair labor practice hearing. All this
activity is alleged to have violated Section 8(a)(1), (3),
and (4) of the Act.
On the entire record, including my observation of -the
demeanor of the witnesses, and after consideration of-the
brief filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondents -are New York corporations with their
principal office and place- of business located at 425
Devoe Avenue, Bronx. New York (the facility), where
they are engaged in the manufacture and wholesale dis-
tribution of fibre doors for the construction industry. Re-
spondent admitted that, for the purpose of this case, Re-
spondent Millwork and Respondent Door are alter egos.
Annually, Respondents purchase and receive at their fa-
cility goods and materials valued in excess of $50,000 di-
rectly from places outside the State of New York. Re-
spondents admit, and I find, that Respondents are en-
gaged in• commerce- within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondents admit, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act. -
Iii. BACKGROUND , FACTS, AND ANALYSIS
On 22 March an unfair labor practice hearing in Case
2-CA-19976 alleging that Respondents violated Section
8(a)(1), (3), and (5) of the Act commenced. There were
five alleged discriminatees; Lopez was not one of them.
The Union was the charging party The hearing contin-
ued on 23, 26, and 27 March; on that date the hearing
was adjourned to permit settlement discussions, and on
28,March `the parties entered into a formal settlement
stipulation settling the case
Only two witnesses testified at the instant hearing;
Lopez testified regarding the allegations contained in, the
complaint while Anthony Guarino, Respondent's presi-
dent and owner, testified solely regarding the sufficiency
of the subpoened documents. Therefore, when not stated
otherwise, all the evidence set forth below is based on
Lopez' testimony.
' Lopez' cousin informed him that she had spoken to
Guarino who told her that he needed an additional em-
ployee, and if she knew of anyone, she should bring him
to the facility. On 13 Janauryz he arrived at the facility
about 7 or 8 a.m. At that time-he met with Guarino who
told him that the job paid $4 an hour, that he had recent-
ly fired his employees for trying 'to bring in a union, and
if he tried to bring in a union he would be fired; Lopez
did not respond, Guarino showed him around the facility
and he began working for Respondent on that day.
About 24 March, Guarino called to Lopez and two
other employees, Manuel and Joseph (last name un-
known) and handed them each a small piece of paper;
the top right-hand corner already had the date written
in3 (although Lopez could not remember what that date
was) and on the left side from top to bottom were places
from their social security number, name, and address.
Guarino told them in English and Spanish to fill in their
social security number and print their name (which they
each did), they returned the papers to Guarino and he
put an incorrect address on the paper for each of them.4
Lopez asked what the papers- were for, "and he told me
something to do with the union." Lopez then testified
that he did not recall anything else that Guarino said.
The General Counsel then asked:
Q. Did - he say anything about people for the
union?
A. Yes. S •
Q. What did he say?
A. He said so they won't get in contact with us.
So they won't get in contact with us by giving a
fake address. -
Q. Did he say anything about-Do you recall
Mr. Guarino saying about the work that you do?'
Counsel for Respondent objected to this question as
leading; the objection was overruled. Lopez answered..
He told us if we ever see someone outside saying
they're from the union to tell them that we work
upstairs doing cleaning, painting and some roof . . .
not to tell them we work in the factory making the
doors.
On the evening of 26 March, Lopez and other of Re-
spondent's employees appeared at the Board's Regional
Office to speak with the Board agents and give affidavits
in support of the hearing then occurring. Lopez' testimo-
ny on this subject is confusing because of his conflicting
testimony regarding the purpose of this visit. It is clear
2 Lopez' affidavit states that the first time he met Guanno was 27 Jan-
uary, while he testified it was 13 January He testified that when he gave
the affidavit he could not recall the precise date However, prior to this
heanng he located a "paper" which showed that the-first day for which
Guarino paid him was 13 January a Friday ,
3 Initially he was asked ,
Q Did it have a date9 -
A Yeah, you had to put the date
Q A place for the date? -
A Yes
Q Did you put in the date?
A Yes
4 Lopez' affidavit to the Board states that Guarino told them to write
in an incorrect address, it does not state that Guanno wrote the incorrect
address In addition, he initially testified that Guanno "told us to put our
Social Security and a fake address on a piece of paper "
QUALITY MILLWORK CORP 593
that he first spoke to the Board agent trying that case
about 7 p.m, he asked Lopez questions regarding the dif-
ference, if any, between Respondent Millwork and- Re-
spondent Door. Lopez then gave an affidavit to the
Board and was given a subpoena to appear at the hearing
the following day at_ 3 o'clock. However, as to the pur-
pose of visiting the Board's Regional Office, he testified
that because Guarino was overworking them,, and not
giving them promised raises, "Everybody was thinking
about it and then we said let's go to the union, put a
union in the place. That way we have benefits." Re-
spondents' foreman, Vesente Santos, told the employees
"that down here [at the Board's Regional Office] we
could get a union." Santos made a telephone call in front
of the employees, and when he concluded the call he
told the employees to report to the Board's Regional
Officer"He said if we want a union, to go down there to
Mr. Gay [counsel for General Counsel in that matter]
and testify for all 'we know about the company. He told
us that's the only way we could go down here and get a
union." This conversation took place, a few days prior to
26 March. Later, Lopez again testified, "We came here
to join a union, all of us. Everybody agreed with it, so.
we all came here." Santos made the telephone call re-
ferrred to, supra, "to let us notify that we wanted to
make some statements." As to what kind of statements,
he'testified: "The ones I wrote on the affidavits." When
he appeared at the Board office that evening he wasn't
aware that a Board trial was taking place. "I. was just
going to do the affidavits "5 He first learned of the trial
while at the Board's office when Mr. Gay told him that
there was at trial and asked if he would be a witness, and
he agreed.
On the following morning, when Lopez arrived at
work, he told Santos that he would have to take off part
of that day because he had been given, a subpoena by the
Board to testify at the trial. Later that morning, about 10
o'clock, Guarino called all the employees together in the
rear of the facility. He said that he understood that they
had all been subpoened by the Board and he asked for
one of the subpoenas. Manuel gave him the subpoena he
had received. Guarino said that he would call his lawyer
to see if they had to appear. Shortly thereafter, .Guarino
came from his office' and told the employees that they
did not have to appear as stated in the subpoena.
About 11 o'clock that morning Guarino called Lopez
,to where he was and asked him-why he had not told him
about the subpoena; Lopez told him that he had only re-
ceived it the previous. evening. Guarino told him that he
'wanted to talk to him about the subpoena and he would
pay for his lunch. Lopez did not answer him, nor did he
meet Guarino for lunch; rather, he went to the Board's
Regional Office, arriving about 2:40; as he walked
through the hall prior to entering the office he passed
Guarino.and his attorneys. As he passed them, he saw
Guarino point to. him and say to the attorneys: "That's
Frank." He went into the waiting room and observed
5 His affidavit states that he and 'the•other employees "drove to the
NLRB's.office for trial preparation since we were all to be witnesses in
an unfair labor practice trial involving Quality " He had originally testi-
fied that he took a train to the Board 's office
"all the employees of Quality Millwork," although he
only named four. They sat there for about an hour, at
which time Gay told them that they could leave because
the case had been settled
. Lopez reported for work as usual on Wednesday and
Thursday 28 and 29 March; on 30 March he reported for
work an hour early, at 7 a.m., as directed by Guarino.
About 9 o'clock that morning he saw. a new person talk-
ing to Guarino at the facility; he overheard Guarino tell
him that the pay_ was $4 an hour and that if he brought
in a Union he would be fired. During that day, he ob-
served the new employee performing the. same work that
he performed. At 5 p.m. that day Guarino handed the
employees their paychecks; Lopez was the last to receive
his check. Guarino told Lopez that he did not need him
anymore since work was slow, and that he should not
come in on Monday. Lopez asked him why Guarino
hired somebody else if work were slow; Guarino did not
answer At the time there was eight production employ-
ees employed by Respondent in addition to Santos. Only
Guarino,- Santos, and occasionally Pedro Gomez and
Miguel Gomez performed cutting work; the rest per-
formed general work at the facility as did he. In addition
to the employee hired that morning, another employee
had been hired the prior week. Lopez 'testified that work
was busy at the time; in- addition to the hour of overtime
worked on March 30, he had been' working 4 hours
overtime on Saturday. He never received any discipline
or warnings while employed by Respondent.
Lopez never joined the Union and never told Guarino
that he wanted. to join the Union. After January 13,
Guarino never spoke to him about the Union. Lopez was
.the only employee terminated on March 30; he was
never offered reinstatement by Respondent ' I .
As =stated, supra, only Lopez testified regarding the
substantive aspects of this matter; Guarino testified solely
regarding the sufficiency of the subpoened documents
turned over by Respondent. In that regard he testified
'that every Friday he or his secretary (if he is'too busy)
calls his accountant to inform him of the hourly rate and
the number of hours worked by each employee; and then
he do [sic] everything, all deductions and everything and
I make the check and give it to the man. During the
week,'Guarino keeps track of the employees' hours; on
'Friday, after giving this information to his accountant,
,he tears up this paper and has no further record of the
number of hours worked by his employees. The canceled
payroll checks contain a dollar amount, but do not list
the number of hours worked. -
In Wright Line, 251 NLRB 1083 (1980), the Board set
forth the rule it- will henceforth' apply in discrimination
case`s' such as the instant matter: "First, we shall require
that the General''Counsel make a prima facie showing
sufficient to support the inference that protected conduct
was' a `motivating factor' in the employer's decision.
Once this is established, the burden will shift to the em-
ployer to demonstrate that the same Faction would have
taken place even in the absence of the protected con-
duct." .
Whether • the General Counsel sustained her burden is
dependent solely on the testimony of Lopez, which is
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uncontradicted. However, the mere fact that certain tes-
timony was uncontradicted does not necessarily dictate
that it be credited. In Aero Corp., 237 NLRB 455 (1978),
the Bord affirmed an administrative law judge's refusal
to credit uncontradicted testimony where it was "indefi-
nite and uncertain." In Operative Plasterers Local 394
(Burnham Bros.), 207 NLRB 147 (1973), the Board
stated:
A trier of fact need'-not accept 'uncontradicted
testimony' as. true if it contains improbabilities or if
there are reasonable grounds for concluding that it
is false. It- is well settled that a witness' testimony
may be contradicted by circumstances as well as by
statements and that demeanor may be considered in
such circumstances. -
In NLRB v. Ray Smith Transport Co., 193 F.2d 142 at
146 (5th Cir. 1951), the court stated- "Although the cir-
cumstances-may support the inference of a fact, if it is
.shown by direct, unimpeached, uncontradicted, and rea-
sonable testimony which is consistent with the circum-
stances that the fact does not exist, no lawful finding can
be made of its existence." -In - NLRB v. Operating Engi-
neers Local 138, 293 F.2d 187 at 192 (2d Cir. 1961), the
court stated that "a finding based solely on the trier's dis-
belief of uncontradicted evidence is not necessarily in-
valid" See also Teamsters Local 959 (Northland Mainte-
nance), 248 NLRB 693 (1980).
It is therefore necessary.to examine -Lopez' testimony
to determine whether. it was sufficiently indefinite or un-
certain or contains sufficient improbabilities so that for
these.-reasons (or-;by reason of demeanor) it should be
discredited (in whole or in part) even though uncontra-
dicted. There clearly are conflicts in the Lopez' testimo-
ny regarding some of the events in question; he satisfac-
torily explained the conflict between his testimony that
he was hired on 13 January and his affidavit, which
gives this date as 27 January. His testimony regarding
the 24 March incident,was also confused on a number of
points; however, ;considering the circumstances, and the
small period of time that he had to observe the paper in-
volved, I do not'' attach much significance to that. The
principal conflict and confusion in Lopez' testimony is in
regard to the purpose of his visit to the Board's Regional
Office on 26 March, although there was no conflict .or
confusion regarding what occurred on that evening or
the following day, Lopez appeared to be, totally confused
as to whether he-was there to "get a .union," to give an
affidavit, or to be prepared to testify at the hearing the
following day. However, it must be remembered .that
Lopez was a workingman obviously uneducated in even
the basics of labor law; only a- few days earlier he and
the other employees discussed joining a union- and it is
not unnatural, considering , the circumstances , that,'he
would confuse that discussion 'with his subsequent trip to
the Board 's Regional Office In addition , ' as the testimo-
ny was principally for background purposes, 'and is not
crucial to the. General Counsel 's case , it would appear
that it is not a subject that Lopez would intentionally
fabricate ; rather,. it is more reasonable to assume that he
was simply confused. . . ,
I therefore find that although Lopez' testimony was, at
times, confused, it was not so improbable, indefinite, or
uncertain as to be discredited, as it was uncontradicted.
This finding is strengthened by my observation of Guar-
ino'on the witness stand; if I had to find one word that
best described his demeanor, it would be "cocky " His
appearance and testimony left me with the impression
that he regarded this hearing as simply a slight inconven-
ience for him, to be taken lightly. His testimony regard-
ing the lack of documentation of his employees and their
hours worked was incredible. My observation of him,
and a careful reading of his testimony, convinces me fur-
ther that he made the statements that Lopez attributes to
him
I therefore find - that Respondent violated Section
8(a)(1) of the Act when Guarino told Lopez on 13 Janu-
ary, and the employee he hired on 30 March that they
would be fired if they attempted to "bring a union" into
Respondent's facility. It is next alleged that "on or about
24 March 1984, Respondent, through Guarino, told its
employees to 'provide inaccurate information to the
-Union and the' Board by supplying incorrect home ad-
dress and by mistating their job function." The 8(a)(1)
conclusionary paragraph of the complaint alleges that
this constituted interference, . restraint, and coercion
within the meaning of Section 8(a)(1) of the Act. The
General Counsel, in her brief, cites no cases, nor does
she provide any guidance, to establish that these actions
constitute a violation of the Act.'Although under differ-
ent circumstances Guarino's actions might constitute
valid objectioris' to an election, that is not the case here. I
shall therefore dismiss this allegation.
On 27 March Guarino told his employees that he had
spoken to his attorney and they did not have to appear
at the hearing as stated in the subpoenas they received.
The Boa-rd addressed this issue in Block-Southland Sports-
wear, 170 NLRB 936 at 973 (1968), where it cited Winn-
Dixie Stores, 128 NLRB 574, 579 (1960), which stated
We cannot view the statement that one may
ignore a Board subpena if he so wishes to be an ac-
-curate statement of the law. The Act and-the Rules
and Regulations of the Board provide clearly that a
* person served with a subpena is required to 'appear
and give testimony pursuant to such subpena. Sec-
tion 11 (1) of the Act empowers the Board or its
agent to - issue subpenas "requiring the attendance
and testimony of a witness." The Respondent
argues that a person is undertno obligation to honor
-'a* subpena as he may move to have the subpena re-
voked. However, the Respondent ignores the fact
that at least until the person served with the subpe-
na petitions to have the subpena revoked, he contin-
ues to be under an obligation to appear pursuant to
the subpena. Nor, contrary ,to the Respondent, do
-we consider relevant .the fact that only a United
States district court may enforce a subpena. The
Respondent' confuses a person's obligation to honor
a subpena with the procedure for enforcing this ob-
ligation. The obligation to honor the subpena.arises
immediately when the subpena is duly issued and
served. It, is only when a person served fails'to ful-
QUALITY MILLWORK CORP 595
-fill this obligation , that the necessity arises to seek
enforcement of the obligation in the district court.
And, in Mr. F's Beef & Bourbon , 212 NLRB 462 at 466
(1974), the administrative ' law judge , as affirmed by the
Board , stated:
As Congress had never invested the Board or its
examiners with contempt powers,' a notion occa-
sionally arises in the minds of some that subpenas
issued by this Agency to compel the attendance of
witnesses at formal hearings do not impose upon the
recipient an obligation to comply, unless and until
the subpena is enforced by an order issued by a
United States district judge . The Board long ago
laid this notion to rest in Winn-Dixie Stores, Inc.,
128 NLRB 574, when it issued an admonition not to
confuse the legal obligation to honor a Board sub-
pena with the procedure spelled out by Congress
for enforcing that, obligation. Hence, when an em-
ployer informs an employee that he does not•have
to comply with a Board subpena, or when it tells
him that he is free to suit himself in deciding wheth-
er to go or not to go to a Board hearing in'response
to the commands of a subpena, such statements con-
stitute unlawful interference with Section 7 rights
and are a violation of Section 8(a)(1) of the Act.
See also Bobs Motors, 241 NLRB 1236 (1979); Bell
Burglar Alarms, 245 NLRB 990 (1979); Crockett-Bradley,
Inc., 212 NLRB 435 (1974). Guanno's statement to the
employees that they need not appear pursuant to the sub-
poenas they received from the Board, therefore violates
Section 8(a)(1) of the Act.
Finally, the General Counsel alleges that by discharg-
ing Lopez on 30 March Respondent violated Section
8(a)(1), (3), and (4) of the Act., As Respondent produced
no evidence in this regard, it is only necessary to deter-
mine whether the General Counsel sustained her initial
burden under Wright Line, supra. Taking the 8(a)(3) alle-
gation first, it is clear that Lopez never joined the Union,
never informed Guarino of his interest in the Union,-and
never was threatened or spoken to by Guarino regarding
the Union after 13 January. His only union activity was
agreeing with all his fellow employees on the need for a
union , and appearing at the Board 's Regional Office on
26 and 27 March' as did all, or some, of the other em-
ployees, none of whom apparently were discharged by
Respondent. Although the situation is somewhat suspi-
cious due to Respondent 's employment of a new employ-
ee on 30 March, I find that the General Counsel has not
sustained her burden of establishing that Lopez' protect-
ed conduct was a "motivating factor" in the determina-
tion to discharge Lopez. This allegation is therefore dis-
missed.
I find that 'the situation is different as regards the
8(a)(1) and (4) allegation . On the morning of 27 March
Guarino told all the employees that they did not have to
appear at the Board as stated in the subpoena . About an
hour later Guarino asked Lopez why he had not told
him earlier about his subpoena and said that he would
take him to lunch so they could talk about the subpoena.
Although he did not refuse this offer, he did not meet
Guarino, and went, instead, that afternoon, to the Labor
Board, where Guarino saw him. Without warning,
Lopez was terminated 3 days later even though he had
an unblemished work record. Apparently, Respondent
defends on the ground, that Lopez was laid off due to a
lack of work. Yet the evidence establishes that on the
same day, Respondent hired an employee who per-
formed the same work as Lopez. I therefore find that the
General Counsel has satisfied its ' burden 'under Wright
Line. As Respondent has not satisfied its burden I find
that its termination of Lopez on "30 March violates Sec-
tion 8(a)(1) and (4) of the Act. '
CONCLUSIONS OF LAW
1. Respondents Quality Millwork Corp. and Quality
Door Co. are alter egos within.the meaning of the Act
and are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. -
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act. `
3. Respondent violated Section 8(a)(1) of the Act by
engaging in the following conduct:
. (a) Threatening its employees that they would be dis-
charged if they assisted a union in organizing Respond-
ent's employees. .
(b) Informing its employees that they did not have to
appear at a Board • hearing -pursuant to subpoenas that
they received.
4. Respondent violated Section 8(a)(1) and (4) by dis-
charging. Francisco Lopez on 30 March 1984 and there-
after failing and refusing to reinstate or offer to reinstate
him.
5. Respondent did not violate the Act as otherwise' al-
leged in the complaint.
6. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices it will be rec-
ommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act, to wit, that Respondent offer Lopez im-
mediate reinstatement to his former position or, if that
position no longer exists , to a substantially equivalent po-
sition , without prejudice to his seniority or other rights
and privileges. It is also recommended that Respondent
be ordered to make Lopez whole for any loss of earnings
he sustained by reason of his discharge on 30 March
1984. Backpay shall be computed in accordance with F.
W Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977); see generally Isis
Plumbing Co., 138 NLRB 716 (1962). '
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
6 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
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Quality Millwork Corp., and its alter
ego, Quality Door Co., Bronx, New York, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge in retalia-
tion for assisting a union in organizing Respondent's em-
ployees.
(b) Informing its employees that they need not appear
at a Board hearing pursuant to a subpoena they had been
served with.
(c) Discharging or otherwise discriminating against its
employees because they appeared at a Board Regional
Office to give testimony under the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Lopez immediate reinstatement to his former
position of employment or, if that position is no longer
available, to a substantially similar position without prej-
udice to his seniority or other rights and privileges and
make him whole for the loss he suffered as a result of the
discrimination in the manner set forth above in the sec-
tion entitled "Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at is Bronx, New York location copies of the
attached notice marked "Appendix."7 Copies of such
notice, on forms provided by ° the Regional Director
Region 2, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the the complaint
be dismissed insofar as it alleges violations not specifical-
ly found herein.
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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."