Trim Corp. of America, Inc.

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 264 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 24
264
Trim Corporation of America, Inc. and Local 2179,
International Union, United Automoble, Aero-
space and Agricultural Implement Workers of
America-UAW, AFL–CIO. Cases 29–CA–26325,
29–CA–26378, and 29–CA–26720
May 31, 2006
ORDER REMANDING PROCEEDING
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On September 7, 2005, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent and the General Counsel filed exceptions, and
the Respondent filed a supporting brief.
In its exceptions, the Respondent asserts that the judge
failed to issue a reasoned decision and created the ap-
pearance of partiality by copying extensive portions of
the General Counsel’s posthearing brief into his decision.
Because it claims this conduct demonstrates that the
judge was biased against it, the Respondent asks the
Board to remand the case to a different judge and to have
that judge review the record and issue a proper decision.
By letter dated November 22, 2005, the General Counsel
filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Consistent with our decision in Dish Network Service
Corp., 345 NLRB 1071 (2005), we have decided to re-
mand this case to another judge in order for him or her to
review the record and issue an appropriate decision.
In this case and in many others, the same judge has
copied extensively from the General Counsel’s brief in
his decision. In each case, the judge then decided the
case in favor of the General Counsel.1 In this proceed-
ing, substantial portions of the statement of facts in the
judge’s decision and virtually all of its legal analysis
were copied almost verbatim from the General Counsel’s
brief.
In Dish Network, supra, we said: “[I]t is essential not
only to avoid actual partiality and prejudgment . . . in the

1 See CMC Electrical, 347 NLRB 273 (2006); Crossing Rehabilita-
tion, 347 NLRB 228 (2006); Regency House of Wallingford, 347
NLRB 173 (2006); Simon DeBartelo Group, 347 NLRB 282 (2006);
Eugene Iovine, Inc., 347 NLRB 258(2006); Dish Network, supra; Fair-
field Tower Condominium Assn., 343 NLRB 923 (2004).
conduct of Board proceedings, but also to avoid even the
appearance of a partisan tribunal.” Indianapolis Glove
Co., 88 NLRB 986 (1950). See Reading Anthracite Co.,
273 NLRB 1502 (1985); Dayton Power & Light Co., 267
NLRB 202 (1983).
Considering the instant case in the context of all of
these cases as a whole, the impression given is that Judge
Edelman simply adopted, by rote, the views of the Gen-
eral Counsel and failed to conduct an independent analy-
sis of the case’s underlying facts and legal issues.
The Respondent has specifically objected to Judge
Edelman’s extensive copying. We agree with those ex-
ceptions. It is the Board’s solemn obligation to insure
that its decisions and those of its judges are free from
partiality and the appearance of partiality. The cited de-
cisions of Judge Edelman fail to meet this elemental test.
We understand that this remand delays the issuance of
a Board decision, and this may inconvenience the parties.
However, we believe that the fundamental necessity to
insure the Board’s integrity outweighs these considera-
tions.
In order to dispel this impression of partiality, we will
remand the case to the chief administrative law judge for
reassignment to a different administrative law judge.
This judge shall review the record and issue a reasoned
decision.2 We will not order a hearing de novo because
our review of the record satisfies us that Judge Edelman
conducted the hearing itself properly.
ORDER
It is ordered that the administrative law judge’s deci-
sion of September 7, 2005, is set aside.
IT IS FURTHER ORDERED that this case is remanded to
the chief administrative law judge for reassignment to a
different administrative law judge who shall review the
record of this matter and prepare and serve on the parties
a decision containing findings of fact, conclusions of

2 The new judge may rely on Judge Edelman’s demeanor-based
credibility determinations unless they are inconsistent with the weight
of the evidence. If inconsistent with the weight of the evidence, the
new judge may seek to resolve such conflicts by considering “the
weight of the respective evidence, established or admitted facts, inher-
ent probabilities, and reasonable inferences which may be drawn from
the record as a whole.” RC Aluminum Industries, 343 NLRB 939 fn. 2
(2004), quoting Daikichi Sushi, 335 NLRB 622, 623 (2001) (internal
quotation marks and citations omitted). Alternatively, the new judge
may, in his/her discretion, reconvene the hearing and recall witnesses
for further testimony. In doing so, the new judge will have the author-
ity to make his/her own demeanor-based credibility findings.
TRIM CORP. OF AMERICA, INC. 265
law, and recommendations based on the evidence re-
ceived. Following service of such decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.
Marcia Adams, Esq., for the General Counsel.
Richard M. Howard, Esq. and Jeffrey Meyer, Esq. (Kaufman,
Schneider & Bianco., LLP), for the Respondent.
Mathew Jackson, International Representative, Region 9 UAW,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. Upon
charges filed by Local 2179, International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America UAW, AFL–CIO (the Union), filed unfair labor
practices set forth above against Trim Corporation of America,
Inc. (Respondent). The complaint alleges a series of 8(a)(1)
and (5) violations.
The trial in this matter was held in Brooklyn, New York, on
May 3, 2005.
Briefs were filed by counsel for the General Counsel and
counsel for Respondent. Based upon the entire record herein,
including the testimony and demeanor of the witnesses called
by the parties, I make the following
FINDINGS OF FACT
At all material times, Respondent, a domestic corporation
with its principal office and place of business located at 882
Third Avenue, Brooklyn, New York (Brooklyn facility), has
been engaged in the operation of assembling and packaging
Christmas decorations and ornaments. During the past year,
which period is representative of its annual operations gener-
ally, Respondent, in the course and conduct of its operations
described above, purchased and received at its Brooklyn facil-
ity, goods and materials valued in excess of $50,000 directly
from suppliers located outside the State of New York.
It is admitted, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
It is also admitted, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
The following employees of Respondent set forth in para-
graph 2 (the unit) constitute a unit appropriate for the purposes
of collective bargaining with in the meaning of Section 9(b) of
the Act:
All warehouse and assembly employees employed by Re-
spondent at its Brooklyn facility, excluding all managers,
guards and supervisors as defined by the Act.
It is also admitted, the Union has been the designated exclu-
sive collective-bargaining representative of the unit and has
been recognized as such representative by Respondent embod-
ied in successive collective-bargaining agreements, the most
recent of which was effective by its terms from May 1, 2001,
through April 30, 2004.
It is also admitted the above-described collective-bargaining
agreement contains the following clause in section XXXlll:
This contract with respect to the work or jobs now or hereafter
covered shall be binding on any principal of the Employer
found to be an alter ego of the Employer . . . .
Respondent assembles and packs Christmas decorations and
ornaments. Since about 1993 the Union has been representing
Respondent’s warehouse and assembly employees.
As set forth above the last collective-bargaining agreement
was in effect from May 1, 2001, and expired on April 30,
2004.1
Horace Anderson, a representative for the Union, has been
the official responsible for servicing the members employed by
Respondent since 1986. In March, Shop Steward Wilfredo
Cruz informed Anderson that employees from a company
called Heritage were working alongside unit employees per-
forming the same work, specifically packing boxes of orna-
ments. After Cruz informed Anderson about the Heritage em-
ployees “doing everything that he did” Anderson visited Re-
spondent’s premises one day in March and observed a Heritage
employee working side-by-side with unit employees. Anderson
spoke to this employee who told him that he had worked for
Heritage for a few weeks. Wilfredo Cruz, the union shop stew-
ard, told Anderson that about 6 to 12 other Heritage employees
had been working at Respondent’s facility and that Heritage
employees had been doing their bargaining unit work since the
end of 2003.
The expired collective-bargaining agreement has a provision
set forth as follows:
Section XXXlll:
This contract with respect to the work or jobs now or hereafter
covered shall be binding on any principal of the Employer
found to be an alter ego of the Employer . . .
On April 15 Anderson and the union negotiation team met
with Respondent’s treasurer and comptroller, Stanley Pawigon,
to begin bargaining over a successor agreement. The Union’s
negotiating team included Anderson, Cruz, and another em-
ployee, Robert Yulson. During that first session Anderson told
Pawigon that he was aware that Heritage employees were doing
bargaining unit work and that they should be covered by the
Union’s collective-bargaining agreement. Anderson stated to
Pawigon that based upon knowledge from Cruz he thought that
Heritage was an “alter-ego” of Respondent. Pawigon stated
that Heritage was a separate entity, but he also told Anderson
that Heritage was owned by the same individuals who owned
Respondent, namely, Pawigon, Michael La Russo, and Richard
Stone. Pawigon also told Anderson that Heritage’s employees
were represented by another union, Local 210, Warehouse and
Production Employees Union, AFL–CIO, and that there was a
collective-bargaining agreement covering those employees.
A. Union Requests for Information for Bargaining
Subsequently, on April 27 Anderson sent an information re-
quest to Respondent requesting the collective-bargaining

1 All dates herein are 2004, unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD266
agreement between Heritage and Local 210 and payroll records
of Heritage employees for the last 12 months. Anderson stated
that the purpose of his requests was to uncover information that
might lead to a discovery that an alter ego relationship existed
between Respondent and Heritage. In this letter, Anderson
reminded Pawigon that during these current negotiations, Re-
spondent had stated that Heritage had a collective-bargaining
agreement with Local 210 and that the Union was requesting
the information in order for it “to bargain in an intelligent man-
ner.”
On April 27 the Union set forth the following request:
Dear Mr. Pawigon:
In bargaining sessions held so far, you and your representative
have claimed that Heritage, a company in your corporation
has an existing collective bargaining agreement with Local
210, no International Union given. In order for us to bargain
in an intelligent manner we need the following information:
1. A copy of the collective bargaining agreement be-
tween Heritage and Local 210.
2. A copy of the payroll records for the employees of
Heritage for the last twelve (12) months.
The Union is prepared to discuss appropriate confiden-
tiality arrangements in the event it is your position that any
of the requested information is confidential. If any of the
information is unclear, please advise us at once so that
they can be clarified.
We shall appreciate receiving all of the material re-
quested, as soon as possible. We ask that you advise us
within seven (7) days of the receipt of this letter as to
when you will be able to supply all or part or part of the
information requested and that you supply those portions
of the information requested as it becomes available.
On April 28 Respondent’s attorney, Arthur Kaufman,
sent a written response to Anderson’s letter stating:
As you know, this firm represents Trim Corporation of
America (the “Employer”) in the ongoing negotiations
with Local 2179. Your letter to Stanley Pawigon of April
27, 2004 has been forwarded to my office for review. In
your letter, you ask for a copy of the collective bargaining
agreement between Heritage and Local 210 as well as a
copy of the payroll records for the employees of Heritage
for the last twelve (12) months.
Please set forth with particularity the relevance and
necessity of this information, given that neither Heritage
nor Local 210 is a party to the ongoing negotiations be-
tween the employer and Local 2179. After you provide a
basis for requesting this information, the Employer will
determine whether or not it is legally obligated to produce
same.
On May 3, the Union set forth a detailed response setting
forth their belief of an alter ego relationship between Respon-
dent and Heritage as follows:
1. The office address and employment history (includ-
ing job titles and responsibilities), for the last five years of
(a) each present company officer and/or director and (b)
each company officer and/or director who was employed
at any time during that period for each company.
2. The name and employment history (including job ti-
tles and responsibilities) of each current or former director,
officer, supervisor, and/or employee of either of the com-
panies who at any time within the last five years has been
or was employed by either of the companies in any capac-
ity.
3. The State or States in which each company has been
and/or is qualified or registered to do business.
4. The name and address of all persons, corporations,
or other entities owning stock and the percentage of their
stock ownership in each company as of January 1st for
each year from five years ago to date.
5. The nature of the business of each company, includ-
ing the products, services, customers and locations of dis-
tribution warehousing, and/or sales facilities and manufac-
turing facilities and/or office facilities.
6. The date, terms and parties to each contract, com-
mitment or understanding whether, oral or written which
the companies have been jointly obligated to engage in
business activity.
7. The date, terms and parties to each contract, com-
mitment or understanding, whether oral or written, under
which either company may have been and/or is required or
authorized to use the services, facilities, personnel or
equipment of the other company.
8. The date, terms and parties to and persons entering
into each contract, commitment or understanding, whether
oral or written, between the other company or any other
company.
9. The date, terms and parties to and persons entering
into each contract, commitment or understanding, whether
oral or written, under which one of the companies agreed
to loan, sell and/or contribute equipment, services, money
and/or any other things of value to the other company or
any other company.
10. The date and substance of each bid submitted by
one company for work to be performed in whole or in part
to the other company or any other company.
11. The date and substance of each contract entered
into by one company for work which was or is being per-
formed in whole or in part by any other company.
12. The identity of each person or entity that guaran-
teed the performance of each contract entered into by ei-
ther company and the parties to the contract.
13. The name, effective dates, terms and class of eligi-
ble employees, supervisors, officer and/or directors of
each health, life insurance, pension, incentive, stock op-
tion, retirement and/or benefits plan offered by each com-
pany.
14. The nature and terms of any lines of credit, revolv-
ing credit or other credit arrangements offered by either
company to any other companies, the dates on which such
credit was extended, the amount of credit extended and the
parties to each extension of credit.
TRIM CORP. OF AMERICA, INC. 267
15. The nature and amount of indebtedness owed by
each company to the other company or to anyone else on
January 1st of each year from five years to date.
16. Identify the banking institution, branch location
and account number of each company’s bank account and
payroll amounts.
17. Identify the law firm(s) and the accounting firm(s),
the advertising firm(s) for each company for the last five
years.
18. The name, title, employer and job duties of any
persons who are or who have been responsible in any way
for labor relations and/or personnel relations for each
company, the period of time during which each of these
persons was assigned these responsibilities and each per-
sons’ employer during each such period of time.
19. The name and title of each person responsible for
new business for each company and the period or periods
of time during which each of these persons was assigned
these responsibilities.
20. The dates, participants and substance of each meet-
ing, conference and/or discussions, (including telephone
discussions) attended by one or more shareholder, direc-
tors, officers, supervisors and or employees or agents of
either of the companies at which any business of either
company was discussed.
21. Copies of all those documents including but not
limited to correspondence, memoranda, notes and minutes
which refer directly or indirectly to the formation, dissolu-
tion and/or function of any of the companies.
Please provide us with copies of each state license for
each company.
In the event it is your position that any of the requested
information is confidential, we are prepared to discuss ap-
propriate confidentiality arrangements.
If you have any questions, please feel free to contact
me at (212) 529–2580.
On May 5 Respondent replied:
Receipt is acknowledged of your May 3, 2004 letter.
You state in that letter that the Union has received reliable
information that Trim Corporation (“Trim Co.”) and the
Heritage Company possess on alter ego relationship but
fail to set forth your information.
Before Trim Co. ascertains whether or not you are le-
gally entitled to the information you request, please set
forth on what basis you believe the two (2) companies
possess an alter ego relationship.
On May 13, by letter, the Union responded:
The information regarding an alter ego relationship be-
tween Trim Corporation and Heritage Company (the “Em-
ployer”) is based on reports from our bargaining unit
members. As the bargaining unit representative one of our
roles is to police the collective bargaining agreement. The
collective bargaining agreement refers to its extension to
other Employer facilities. The information requested in
my letter of May 3, 2004 will assist the Union in analyzing
this relationship.
Respondent replied to the Union’s May 13 letter as follows:
Receipt is acknowledged of your letter dated May 15,
2004. In that letter, you claim that your bargaining unit
members are reporting that Trim Corporation (“Trim Co.”)
and Heritage possess an alter ego relationship.
However, federal labor law requires you to produce
more specific information as to any alleged alter ego rela-
tionship before Trim Co. is required to produce the infor-
mation you requested. Accordingly, unless and until such
information is forthcoming Trim Co. will not be producing
the information requested in your May 3, 2004 letter.
Do not hesitate to call with any questions.
Jackson replied as follows:
The information regarding an alter ego relationship be-
tween Trim Corporation and Heritage Company (the “Em-
ployer”) is based on reports from our bargaining unit
members. As the bargaining unit representatives one of
our roles is to police the collective bargaining agreement.
The collective bargaining agreement refers to its extension
to other Employer facilities. The information requested in
my letter of May 3, 2004 will assist the Union in analyzing
this relationship.
If you have any further questions, please feel free to
contact me.
B. The June 23 Supervisor Meeting with the
Unit Employees
On June 23 Cruz and his coworkers, Robert Yulson and Mat-
thew Amos, were in the locker room at work. Admitted super-
visor within the meaning of the Act, Richard Di Fransisco,
came into the locker room and said he wanted to talk to them.
He told them that the Union was not as “strong as it used to
be,” and that if they wanted to continue to work for the Re-
spondent they had to fight for themselves. Cruz questioned him
about the employees presently on lay off. Di Fransisco stated
that he had no plans to call back either Bishop or Alicia.2 Then
Di Fransisco placed a book on the table entitled, “Trim Corpo-
ration of America & Concept Fixtures Ltd. Employee Hand-
book.” Di Fransisco stated that the handbook was now their
“contract,” and according to it they were going to get 2 less sick
days and some of them would have their vacation reduced from
4 weeks to 3. He told the men to read the book and “tell us the
decision you’re going to take.” Di Fransisco left the handbook
for the employees to read and told them it was now “their con-
tract.” At no time during contract negotiations did Respondent
submit this handbook as a contract proposal.
After Di Fransisco left the room, Cruz picked up the hand-
book and showed it to Union Representative Anderson after
leaving work.
Yulson and Amos the two other employees at this meeting
incredibly testified that Di Fransisco called them, along with
Cruz. In this regard Yulson testified:
Richie Di [Di Fransisco] called us in [to his office] and says’
under order of management, I’m not going to get involved in
negotiations for this contract year. And then he walked out. . .

2 These employees were laid off prior to union negotiations and left.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD268
Pursuant a leading question, Respondent’s attorney asked:
Q. Now, you heard testimony earlier today about a
meeting in a locker room with Mr. Di Fransisco, Mr. Cruz,
Mr. Yulson and yourself and that Mr. Di Fransisco spoke
about whether you should remain in the Union at that
meeting, what’s your recollection of that?
A. I was in a meeting with Richard Di Fransisco, Bob
Yulson and Wilfredo Cruz.
Q. In 2004, has Mr. Di Fransisco—what, if anything,
has Mr. Di Fransisco said to you about whether or not you
should be in the Union?
A. Nothing.
I find it incredible that a supervisor would call these employ-
ees into his office simply to state that he was not getting in-
volved in the union negotiations. I find Yulson and Amos un-
truthful witnesses. Moreover, Di Fransisco did not testify.
Although he was still working as a supervisor for Respondent,
Respondent’s attorney did not provide any reason for his ab-
sence. As set forth below, I find an adverse inference should be
drawn. Respondent contends that Cruz obtained the handbook
through “dishonest means,” however, Respondent offered no
evidence for this contention.
Moreover, if the handbook was not presented at the meeting,
how would Cruz know about it?
I find Cruz to be a credible witness generally, but especially
during the June 23 meeting Cruz’ testimony was detailed, not
the kind that could easily be manufactured. His testimony as to
the June 23 meeting and the handbook distribution has the ring
of truth. Moreover, his testimony, direct and cross was consis-
tent, detailed, and responsive.
Further, Cruz was employed at the time of this trial, another
factor which bears favorably as to his credibility.
As set forth above, I find and adverse inference should be
drawn, Di Fransisco did not testify during this trial although he
was still employed as supervisor at this time.
The Board has made it clear that in Board trials the proper
inquiry in determining whether an adverse inference may be
drawn from a party’s failure to call a potential witness is
whether the witness may reasonably be assumed to be favora-
bly disposed to that party. Electrical Workers Local 3 (Tek-
nion, Inc.), 329 NLRB 337 (1999). The Board has found that
an adverse inference can be drawn from the Respondent’s fail-
ure to call a current supervisor, International Automated Ma-
chines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th
Cir. 1988); Earle Industries, 260 NLRB 1128 (1982); and Mar-
tin Luther King Sr. Nursing Center, 231 NLRB 15 (1977). An
adverse inference may also be drawn regarding any factual
question on which the witness is likely to have knowledge and
it may be inferred that the witness, if called, would have testi-
fied adversely to the party on that issue. See also Electrical
Workers Local 3, supra; and International Automated Ma-
chines, supra.
Further, after the startling events of the June 23 meeting
Cruz started a journal and entered facts consistent with this
meeting. When questioned as to why he started such a journal
at this particular time, he credibly testified, “That’s the same
day I had to decide what I was going to do. Whether we were
going to work for the company and not have a union.”
I find Cruz to be an entirely credible witness. Not only does
his testimony make sense, but his demeanor and the details of
his testimony have that ring of truth.
Between June 23 and 28 the employees, including Cruz, had
time to think about remaining in the Union. Di Fransisco’s
statement to the unit employees had to have a negative effect on
their continued membership in the Union. Especially when he
produced the new employee handbook, told the employees that
the handbook was their contract which had significant reduc-
tions from the recently expired union contract.
On June 28, Di Fransisco summoned Yulson and Amos to
his office where they met with Di Fransisco and Pawigon ad-
mittedly helped them write their union resignation. This meet-
ing took about 45 minutes.
Given the credible facts of June 23, it seems incredible that
both Amos and Yulson would decide to resign from the Union
on the same day.
In this regard, when Amos was questioned when he decided
to resign from the Union, he gave three inconsistent answers.
He could not answer with any certainty this crucial question:
“When did he decide he wanted to resign from the Union?” On
cross-examination, when asked the question if he woke up that
morning knowing he was going to resign, he replied, “No.” He
stated further that he had not made up his mind to resign prior
to asking to meet with Pawigon that day. However, later when
questioned by the judge, Amos testified that the reason that he
asked to meet with Pawigon was, “to let him know that I had
made up my mind, I was going to resign from the Union.” And
then, a few minutes later during more cross-examination Amos
declared: “I already had made up my mind that I was going to
resign before I came to work that day.” I find these shifting
responses on such a crucial question totally undercut his credi-
bility.
Yulson was equally unimpressive as a witness. He expects
us to believe that his reason for resigning from the Union on
June 28 was because of an incident that occurred 10 years ear-
lier. If he was so dissatisfied with the Union then why did he
wait 10 years to do anything about it? Yulson offered no rea-
sonable explanation for this lack of logic. Yulson was evasive
and vague when he testified about telling with Amos he was
dissatisfied with the Union and might resign. He claims they
spoke about both issues.
That same day, June 28, in the morning and when Yulson
and Amos came out Cruz asked each of them what they talked
about and they each said that it was “just about work.” Later
that same day, Cruz was called into Pawigon’s office. Pawigon
showed him the letter Respondent’s attorney had written to the
Union informing it that a majority of the employees no longer
supported the Union; it was withdrawing recognition and can-
celing the parties’ next scheduled negotiation session. That
afternoon the Union received the faxed letter.
It seems highly unlikely that Amos and Yulson would have
resigned from the Union in view of Respondent’s handbook
which took away terms and conditions of the recently expired
union collective-bargaining agreement.
TRIM CORP. OF AMERICA, INC. 269
Moreover, these give backs were set forth in Respondent
handbook wherein Di Fransisco showed them the handbook
and told them ”this was their contract.”
After Respondent withdrew recognition several changes
were instituted in the terms and conditions of employment for
the unit employees. Sick days were reduced almost immedi-
ately. Employees were not given a half day for Election Day.
Cruz did not get his personal day for his birthday on November
25. In July, Respondent implemented a new health insurance
plan. Respondent also reduced the vacation days of some em-
ployees and it reduced the number of bereavement days for all.
On December 20, Respondent laid off Cruz, although he had
top seniority3 Yulson and Amos remained employed even
though Cruz’ position as shop steward gave him “superior sen-
iority” over the two of them. Respondent gave no prior notice
of the layoff to the Union. On April 4, 2005, approximately 6
weeks after the Region issued the second consolidated amended
complaint, Respondent reinstated Cruz to his former position.
C. The 8(a)(1) Violations
I find the credible testimony of Cruz establishes that Di
Fransisco threatened Cruz, Yulson, and Amos on June 23 with
discharge if they did not abandon the Union, by telling them if
they wanted to keep their jobs they would have to “fight for
themselves.” I find this is a clear threat to resign from the Un-
ion or lose their jobs. The Board has held that and employer
may not threaten employees with discharge if they continue to
support their union. See Nicholas County Heath Care Center,
331 NLRB 970 (2000); and 87-10 51st Avenue Owners Corp.,
320 NLRB 993 (1996).
Although this allegation is not specifically alleged as a
threat, I find it to be a violation of Section 8(a)(1), Redd-I, Inc.,
290 NLRB 1115, 1115–1118 (1988).4
D. The 8(a)(5) Refusal to Provide Information
The record evidence establishes that when Respondent failed
to provide the information requested by the Union in its April
27 and May 3 letters it violated the Act. When making an in-
formation request for items not presumptively relevant, the
Union is obligated to state why the information is relevant. See
Associated Ready Mixed Concrete, 318 NLRB 318 (1995),
enfd. 108 F.3d 1182 (9th Cir. 1997); Quality Building Contrac-
tors, Inc., 342 NLRB 429, (2004). Where information re-
quested relates to matters outside the unit that might have a
bearing on the employment terms and conditions of the unit
employees, the burden is on the Union to prove relevancy in
order to establish a violation on the basis of the employer’s
failure to furnish the requested information. Id. and cases there
cited. The Board applies a “liberal, discovery-type standard” in
determining relevancy. Id., citing NLRB v. Acme Industrial
Co., 385 U.S. 432, 437 (1967).

3 Sec. 1(A) and (B) of the expired contract provides: “(a) The Em-
ployer agrees to give 5 calendar days in advance of layoff. (b) Stew-
ards and Local officers shall be entitled top seniority for purposes of
layoff.”
4 Once again I find Di Fransisco’s absence from this trial, although
presently working for Respondent, without an explanation as to why he
did not testify requires an adverse inference.
In the instant case, despite Respondent’s specious responses
questioning the relevancy of the requests, the facts demonstrate
that the Union informed Respondent of their relevancy from the
time of its first request. At the first negotiation session prior to
the first request Respondent told Anderson that Heritage was
owned by the same individuals who owned Respondent and
Anderson told them that he was aware that Heritage employees
worked alongside unit employees doing bargaining unit work.
I find those factors along with the specific language in the par-
ties’ collective-bargaining agreement extending coverage to
any entity found to be an “alter ego” of Respondent establishes
the Union’s right to its detailed information requests which
would enable it to determine if Heritage was such an entity. All
the information in the April 27 and May 3 letters would assist
the Union in determining if Respondent was violating the par-
ties’ collective-bargaining agreement, specifically information
concerning its operations, corporate status and the identity of its
employees. The fact that Respondent continued to question the
relevance does not mean that the Union had not fulfilled its
obligation as required in Associated Ready Mixed, supra, it just
shows that Respondent would not acknowledge it. And, if the
relevance was not clear to Respondent after the receipt of the
first letter, the Union’s second request resolved any reasonable
questions in that regard. Jackson made it clear that the Union
suspected an alter ego relationship was in existence. Thus, it is
apparent that Respondent knew of the information’s relevance
to the Union, chose to claim otherwise and refused to provide it
in violation of the Act.
E. The 8(a)(5) Unlawful Withdraw of Recognition
The crucial issue to resolve in the instant case is whether or
not Respondent lawfully withdrew recognition on June 28. If it
did so, then Respondent’s refusal to provide information to the
Union would be moot since the Union would no longer repre-
sent the unit employees. Similarly, there would be collective-
bargaining agreement to enforce and Respondent would have
no obligation to continue any of the provisions of the parties’
last collective-bargaining agreement, therefore, Cruz would
lose his “super seniority” status provided by the contract, and
Respondent could lawfully unilaterally alter the employees’
terms and conditions of work.
However, the incredible evidence does not support Respon-
dent’s contention in this regard.
In Levitz Furniture Co. of the Pacific, 333 NLRB 717
(2001), the Board overruled Celanese Corp., 95 NLRB 664
(1951), and it progeny insofar as they permitted an employer to
withdraw recognition from an incumbent union on the basis of
a good-faith doubt of the union’s continued majority status. In
Levitz, the Board held that “an employer may unilaterally with-
draw recognition from an incumbent union only where the un-
ion has actually lost the support of the majority of the bargain-
ing unit employees.” Id. at 717. The Board held that an em-
ployer must show an actual loss of support by a majority of
bargaining unit members to withdraw recognition from an in-
cumbent union. It cannot withdraw recognition and refuse to
bargain with an incumbent union merely on the basis of a good-
faith doubt regarding the union’s majority support.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD270
In the instant case, there is no dispute that Respondent has
established that the Union lost the support of a majority of unit
members on June 28. However, there remains the issue of
whether Di Fransisco’s statements to Cruz and the entire bar-
gaining unit on June 23 were unlawful, thereby, tainting the
subsequent resignations of Amos and Yulson. If so, Respon-
dent would have violated Section 8(a)(5) and (1) in relying on
these resignations when it ceased bargaining with the Union,
since they were tainted by Respondent’s prior unremedied un-
fair labor practice in accordance with Vincent Industrial Plas-
tics, 328 NLRB (1999); see Bunting Bearings Corp., 343
NLRB 479 (2004).
In Vincent Industrial, supra, the Board found that in order to
demonstrate that an employee withdrawal petition is “tainted,”
the General Counsel must establish that there is a causal rela-
tionship between unremedied unfair labor practices and the
employees’ expression of disaffection with the incumbent un-
ion. When the unremedied violations of the Act do not include
a general refusal to bargain, the Board considers several factors
to determine whether such a causal relationship has been estab-
lished:
(1) The length of time between the unfair labor prac-
tices and the withdrawal of recognition; (2) the nature of
illegal acts, including the possibility of their detrimental or
lasting effect on employees; (3) any possible tendency to
cause employee disaffection from the union; and (4) the
effect of the unlawful conduct on employee morale, organ-
izational activities, and membership in the union. Id.
In the instant case the credible testimony of Cruz establishes
that Di Fransisco told them “the Union was not as strong as it
used to be” and if they wanted to continue to work for Respon-
dent they would have to fight for themselves. Then Di Fran-
sisco placed a new handbook before the employees, never used
before, and told them this handbook was now their “contract.”
Such statement clearly implies that they were no longer rep-
resented by the Union and the employees handbook was now
their “labor contract.” Less then 2 weeks later Amos and Yul-
son coercively resigned. Clearly the criteria meets the criteria
of Vincent Industrial, supra; the timing of the June 23 threat
and the June 28 withdrawals from union membership.
Also, Respondent’s refusal to supply relevant information
further establishes Respondent’s bad-faith bargaining. In this
regard, Yulson, whose credibility is questionable, did admit that
he was dissatisfied with the Union in part because of the focus
at the bargaining table on Heritage, the alleged alter ego. Per-
haps if Respondent had complied with the requests at the time
the Union issued them, negotiations would not have been
bogged down by this issue and might have been wrapped up by
June 28. Thus, I find the facts support the unavoidable conclu-
sion that the subsequent withdrawal of support of the Union
was caused by Respondent’s previous unremedied unfair labor
practices.
F. The 8(a)(5) Unilateral changes in Terms and
Conditions of Employment
The law regarding the lawfulness of an employer’s unilateral
change is as follows: Under Civil Service Employees Assn.,
Inc., 311 NLRB 6 (1993), in order for the employer’s action to
be determined unlawful there must be “a material, substantial
and significant change,” quoting Murphy Diesel Co.,184 NLRB
757 (1970). In the instant matter it is undisputed that Respon-
dent made various material and substantial changes in the terms
and conditions of employment for unit employees after it with-
drew recognition. Moreover, it is clear that Respondent insti-
tuted those changes without notifying or involving the Union in
anyway. Since I find that the withdrawal of recognition was
unlawful, it follows that Respondent subsequent unilateral ac-
tions were also unlawful and Respondent should implement the
status quo ante until the Union is given the opportunity to bar-
gain to good-faith impasse over those matters in accordance
with Civil Service Employees, supra.
G. The 8(a)(5) Unilaterally and Without Notice to the
Union Laying Off Shop Steward Wilfredo Cruz
The Board has held that a provision in a collective-
bargaining agreement that gives “top seniority” or “super sen-
iority” to shop stewards survive the agreement expiration. See
Frankline, Inc., 287 NLRB 263 (1987). Thus, the failure to
give the shop steward “super seniority” as to layoff violates the
collective-bargaining agreement and the Act. The Board in
Bethlehem Steel, Co., 136 NLRB 1500, 1502 (1962), found that
the prohibition against unilateral changes after a contract has
expired specifically held that the abolition of “super seniority”
provisions violates the Act.
In light of the above it is clear Respondent violated the Act
in this regard. In the instant case there is no dispute that the
parties’ contract contained a “super-seniority” clause. That
clause clearly gave Cruz “top seniority” in the shop. It is also
uncontested that on December 20 when it laid off Cruz, Amos,
and Yulson remained employed and Respondent gave the Un-
ion no prior notice of the lay off, and the Union, therefore, had
no opportunity to bargaining over this change beforehand.
CONCLUSIONS OF LAW
1. Respondent is engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is at all times material the collective-
bargaining representative of a unit of warehouse and assembly
employees employed at its Brooklyn, New York facility ex-
cluding clerical employees, supervisors and guards as defined
in the Act.
4. Respondent has committed various violations as set forth
above in violation of Section 8(a)(1) and (5) of the Act.
5. Having laid off Wilfredo Cruz, the union shop steward
without notice to the Union and failing to give the Union an
opportunity to bargain about such layoff, I find such conduct in
violation of Section 8(a)(1) and (5).
I Order that Respondent cease and desist there from, and take
certain affirmative action designed to effectuate the policies of
the Act.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices described above, I shall recommend an Order
TRIM CORP. OF AMERICA, INC. 271
requiring Respondent to cease and desist certain activities and
to take certain action described below.
1. With respect to shop steward Wilfredo Cruz, I shall rec-
ommend that he be made whole from the date of his layoff until
his recall and this includes other benefits as defined by the
Board is made by Respondent. Back pay is computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed by New Horizon for the Retarded, 283
NLRB 1173 (1987).
2. Having found that unilateral changes in sick leave, etc.,
and other terms and conditions of employment were made, I
shall recommend such employees who suffered from such uni-
lateral change must be made whole as set forth above.
3. Having found Respondent violated Section 8(a)(1) and (5)
of the Act, I shall recommend Respondent supply all informa-
tion requested, as set forth above.
Upon these findings and conclusions of law I shall issue the
following recommended5
ORDER
The Respondent, Trim Corporation of America, Brooklyn,
New York, its officers, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to furnish to the Union, Local 2179, Interna-
tional Union, United Automobile Aerospace and Agricultural
Implement Workers of America, UAW, AFL–CIO, the infor-
mation requested by the Union, alleged in this complaint.
(b) Withdrawing recognition from the Union, described
above, unless and until an appropriate Board election.
(c) Making unilateral changes in the expired collective-
bargaining agreement without giving notice to the Union and
give the Union any portions of that collective-bargaining
agreement included, but not limited to (1) Reduce the number
of sick days; (2) Reduce the number of bereavement days; (3)
Reduce the number of vacation days; (4) Changing the medical
insurance coverage without prior notice to the Union and with-
out giving the Union an opportunity to bargain about such
change.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order make whole Wilfredo Cruz
as set forth fully above in the remedy section of this Order.
(b) Within 14 days of this Order, Respondent will make
whole, as set forth above, any employees for any unilateral
changes relating to wages, hours, and other condition of em-
ployment.
(c) Within 14 days from this Order, Respondent must supply
to the Union all information concerning negotiations relating to
the recently expired collective bargaining.

5 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.
(d) Within 14 days of this Order, Respondent shall make
whole, with interest as set forth in the remedy provision of this
decision, all benefits unit employees should have received as
set forth above from June 28, 2004.
(e) Within 14 days after service by the Region, post at its 882
Third Avenue, Brooklyn, New York facility, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to furnish to the Union, Local 2179, In-
ternational Union, United Automobile Aerospace and Agricul-
tural Implement Workers of America, UAW, AFL–CIO, the
information requested by the Union, alleged in this complaint.
WE WILL NOT withdraw recognition from the Union, de-
scribed above, unless and until an appropriate Board election.
WE WILL NOT make unilateral changes in the expired collec-
tive-bargaining without giving notice to the Union and give the
Union any portions of that collective-bargaining agreement
included, but not limited to (1) reduced the number of sick
days; (2) reduce the number of bereavement days; (3) reduce

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD272
the number of vacation days; and (4) changing the medical
insurance coverage with prior notice to the Union and without
giving the Union an opportunity to bargain about such change.
WE WILL make whole Wilfredo Cruz as set forth fully above
in the remedy section of this Order.
WE WILL make whole employees who suffered a monetary
loss as a result of our unilateral changes.
TRIM CORPORATION OF AMERICA, INC.