Vesuvio Foods Co.

National Labor Relations Board - Board Decisions

May 29, 1996

321 N.L.R.B. 328 (N.L.R.B. 1996)

328
321 NLRB No. 40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On p. 28, LL. 5, the date ‘‘November 19’’ should be ‘‘February
19.’’ On p. 30, LL. 1, the date ‘‘February 9’’ should be ‘‘February
19.’’
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 392 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 Given the judge’s findings regarding the seriousness and wide-
spread nature of the unfair labor practices and the likelihood of re-
currence, we shall modify the recommended Order to provide broad
cease-and-desist language. See Hickmott Foods, 242 NLRB 1357
(1979).
We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
Vasaturo Brothers, Inc. d/b/a Vesuvio Foods Co.
and Local 888, United Food and Commercial
Workers International Union, AFL–CIO and
Henry Abraham. Cases 29–CA–18502, 29–CA–
18726, 29–CA–18941, 29–RC–8324, and 29–CA–
18619
May 29, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
On November 28, 1995, Administrative Law Judge
Robert T. Snyder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Vasaturo Brothers, Inc. d/b/a Vesuvio
Foods Co., Brooklyn, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their member-
ship in, activities on behalf of, and sympathy for Local
888, United Food and Commercial Workers Inter-
national Union, AFL–CIO, or any other labor organiza-
tion, threatening to discharge its employees, eliminate
its night shift, burn down its Brooklyn facility and
move its operations to New Jersey, impose stricter
working conditions, that a strike was inevitable, and
with other, unspecified reprisals if its employees se-
lected the Union as their bargaining representative in
a Board election, creating the impression among its
employees that their union meetings and activities
were under surveillance, soliciting complaints and
grievances from its employees and promising them a
straight salary, rather than an hourly wage, rehire from
layoff, improved medical benefits, pay increases, better
equipment, recognition of a night-shift employee to ne-
gotiate on their behalf, and promising and granting as-
sistance in obtaining other employment and other un-
specified benefits in order to induce them to abandon
their union support and to vote against the Union, and
by informing its employees that it would be futile for
them to choose the Union as their bargaining rep-
resentative.
(b) Discouraging membership in Local 888, United
Food and Commercial Workers International Union,
AFL–CIO, or any other labor organization, by elimi-
nating its night shift and thereby discharging its em-
ployees on that shift, transferring employees from the
night shift to the day shift and discharging employees
because they joined and supported the Union, and be-
cause they gave testimony to the Board and filed a
charge with the Board, granting cash payments to its
employees to induce them to vote against the Union
and to abandon their membership in and support of the
Union, or in any other related manner discriminating
against employees in regard to their hire or tenure of
employment, or any terms or conditions of employ-
ment.
(c) Refusing to recognize and bargain in good faith
with the aforementioned Union as the exclusive bar-
gaining representative of its employees in the unit
found appropriate. The appropriate unit is:
All full-time and regular part-time drivers, driv-
ers’ helpers and warehousemen employed by Re-
spondent at its 722 64th Street, Brooklyn, New
York location, excluding all office clericals,
guards, and supervisors as defined in Section
2(11) of the Act.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Henry Abraham and Daniel Cordova immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges previously enjoyed.
(b) Make each of them, and each of the employees
employed on the night shift on July 13, 1994, who
were laid off on that date when the night shift was
eliminated, whole for any loss of earnings and other
329VESUVIO FOODS CO.
4 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful trans-
fer and discharge of Henry Abraham and the unlawful
discharge of Daniel Cordova, and within 3 days there-
after notify the employees in writing that this has been
done and that Abraham’s transfer and discharge and
Cordova’s discharge will not be used against them in
any way.
(d) Recognize, effective from the date beginning
June 6, 1994, and, on request, bargain collectively and
in good faith with Local 888, United Food and Com-
mercial Workers International Union, AFL–CIO as the
exclusive representative of all employees in the appro-
priate unit described above, with respect to rates of
pay, wages, hours, and other terms and conditions of
employment and, if an understanding is reached, em-
body such understanding in a signed agreement.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its Brooklyn, New York facility copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
tices 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 pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since September 2, 1994.
(g) 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.
IT IS FURTHER ORDERED in Case 29–RC–8324 that
the challenges to Jose Rosales’ and Anthony DePete’s
ballots are overruled, that the challenges to Joseph
Pionel’s, Frank Diglio’s, Anthony Scala’s, Michael
Rubino’s, Lynton Brandt’s, Ellio Chillo’s, Wayne
Rismo’s, and Ralph Frascona’s ballots are sustained,
that the August 5, 1994 election is set aside, and that
the petition is dismissed.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees about their
membership in, activities on behalf of, and sympathy
for Local 888, United Food and Commercial Workers
International Union, AFL–CIO, or any other labor or-
ganization, threaten to discharge our employees, elimi-
nate our night shift, burn down our Brooklyn facility
and move our operations to New Jersey, impose strict-
er working conditions, that a strike was inevitable, and
with other, unspecified reprisals if our employees se-
lected the Union as their bargaining representative in
a Board election; create the impression among our em-
ployees that their union meetings and activities were
under surveillance, solicit complaints and grievances
from our employees, and promise them straight sala-
ries, rather than an hourly wage, rehire from layoff,
improved medical benefits, pay increases, better equip-
ment, recognition of a night-shift employee to nego-
tiate on their behalf, and promise and grant them as-
sistance in obtaining other employment and other un-
specified benefits in order to induce them to abandon
their union support and to vote against the Union, and
inform our employees that it would be futile for them
to choose the Union as their bargaining representative.
WE WILL NOT discourage membership in Local 888,
United Food and Commercial Workers International
Union, AFL–CIO, or any other labor organization, by
eliminating our night shift and thereby discharging our
employees on that shift, transferring employees from
the night shift to the day shift, and discharging our
employees because they joined and supported the
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union and because they gave testimony to the Board
and filed a charge with the Board, granting cash pay-
ments to our employees to induce them to vote against
the Union and to abandon their membership in and
support of the Union or, in any other related manner,
discriminate against our employees in regard to their
hire or tenure of employment or any terms or condi-
tions of employment.
WE WILL NOT refuse to recognize and bargain in
good faith with the aforementioned Union as the exclu-
sive bargaining representative of our employees in the
unit found appropriate. The appropriate unit is:
All full-time and regular part-time drivers, driv-
ers’ helpers and warehousemen employed by us at
our 722 64th Street, Brooklyn, New York loca-
tion, excluding all office clericals, guards, and su-
pervisors as defined in Section 2(11) of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this
Order, offer Henry Abraham and Daniel Cordova im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges previously enjoyed.
WE WILL make each of them, and each of the em-
ployees employed on the night shift on July 13, 1994,
who were laid off on that date when the night shift
was eliminated, whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy sec-
tion of the decision.
WE WILL, within 14 days from the date of this
Order, remove from our files any reference to the un-
lawful transfer and discharge of Henry Abraham and
the unlawful discharge of Daniel Cordova, and within
3 days thereafter notify the employees in writing that
this has been done and that Abraham’s transfer and
discharge and Cordova’s discharge will not be used
against them in any way.
WE WILL recognize, effective from the date begin-
ning June 6, 1994, and, on request, bargain collectively
and in good faith with Local 888, United Food and
Commercial Workers International Union, AFL–CIO,
as the exclusive representative of all our employees in
the appropriate unit described above, with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
VASATURO BROTHERS, INC. D/B/A
VESUVIO FOODS CO.
April Wexler, Esq. and Henry Powell, Esq., for the General
Counsel.
Joel Spivak, Esq. (Dinerstein & Lesser, P.C.), for the
Respondent/Employer.
Patricia McConnell, Esq. (Vladeck, Waldman, Elias &
Engelhard, P.C.), for the Union/Petitioner.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This con-
solidated proceeding was tried before me on May 30 and 31
and June 1, 1995, in Brooklyn, New York. The hearing
closed on June 13, 1995, when I issued an order after Re-
spondent counsel informed me and other counsel that Re-
spondent had decided not to call witnesses in its defense. On
charges filed by Local 888, United Food and Commercial
Workers International Union, AFL–CIO (the Union or Local
888), and by Henry Abraham, a consolidated second amend-
ed complaint issued on April 28, 1995, alleging that
Vasaturo Brothers, Inc. d/b/a Vesuvio Foods Co. (Respond-
ent or Vesuvio) violated Section 8(a)(1) of the Act by nu-
merous, specified acts of interference with and restraint of
the Section 7 rights of employees; Section 8(a)(1) and (3) of
the Act by terminating named employees for a 2-week period
in June 1994, because of their support of the Union, granting
cash payments to employees to induce them to vote against
the Union, transferring and then discharging employee Henry
Abraham, and discharging employee Daniel Cordova because
of their union activities; Section 8(a)(1) and (4) of the Act
by its conduct described against Henry Abraham because he
gave testimony to the Board and filed a charge with the
Board in Case 29–CA–18619; and Section 8(a)(1) and (5) of
the Act by failing and refusing to bargain with the Union as
the exclusive collective-bargaining representative of its em-
ployees in an appropriate unit.
Consolidated with this second amended complaint for
hearing, ruling, and decision by order of the Regional Direc-
tor of Region 29 are certain challenged ballots as well as cer-
tain objections the Union filed as Petitioner to conduct af-
fecting the results of a representation election conducted on
August 5, 1994, among employees in the same unit in which
the complaint seeks a bargaining order, which appear in a
Report on Objections and Challenged Ballots in Case 29–
RC–8324 which the Regional Director for Region 29 issued
on January 5, 1995. Respondent denied the commission of
any of the unfair labor practices alleged.
The parties were provided full opportunity to participate,
to introduce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Posttrial briefs have
331VESUVIO FOODS CO.
1 All dates shall refer to the year 1994 unless otherwise noted.
2 Only one card, signed by employee Oscar Rivera on May 31, is
printed in Spanish, but it too, provides most of the same basic infor-
mation.
3 Respondent initially denied in its answer, but later admitted on
the record, that on or about June 6, 1994, in person at Respondent’s
Brooklyn facility, and continuing to date, the Union requested that
Respondent recognize it and bargain with it as the exclusive collec-
tive-bargaining representative of Respondent’s employees in the unit
of all full-time and regular part-time drivers, helpers, and warehouse-
men employed at its Brooklyn facility, excluding all office, clericals,
guards, and supervisors as defined in Sec. 2(11) of the Act.
The complaint alleges, and Respondent also initially denied, but
later admitted on the record, that since on or about June 9, 1994,
it has failed and refused to recognize and bargain with the Union
as the exclusive representative of the unit. Respondent, in its answer,
admitted the appropriateness of the bargaining unit.
been filed by counsel for the General Counsel, Respondent,
and the Union and have been carefully considered. On the
entire record in the case, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT AND STATUS OF
THE UNION
The Respondent, a New York corporation, with its prin-
cipal office and place of business located at 722 64th Street,
Brooklyn, New York (the Brooklyn facility), has been en-
gaged in the nonretail sale of food and related products. Dur-
ing the year ending December 31, 1994, which period is rep-
resentative of its annual operations in general, Respondent, in
the course and conduct of its business operations, purchased
and received at its Brooklyn facility goods valued in excess
of $50,000 directly from points outside the State of New
York. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
AND OBJECTIONS
A. The Union’s Organizing Drive, Bargaining Demand,
and Vesuvio’s Responses, Including the Alleged
Unlawful Conduct During the Critical Period
Preceding and Leading to the Representation Election
Henry Abraham, alleged discriminatee, was called as a
witness by the General Counsel. He had been employed by
Respondent from 1987 to November 30, 1994. Although he
initially worked the day shift, he was assigned to the night
shift when it was started in the summer of 1993. On the
night shift he ran the hi-low and loaded trucks. He started
work at 2 p.m. and continued to whatever time he and the
others on the shift completed loading of the trucks, some-
times as late as 2 a.m. or later the next morning. He was
paid by the hour. Through conversations with a fellow em-
ployee on the shift, Luis Ruiz, he learned about the Union.
Abraham contacted the Union’s business agent, Max Bruny,
and a meeting was arranged for Bruny to meet employees at
Abraham’s house on a Monday in May, probably May 23,
1994.1
At the meeting were Abraham and six or seven other
workers along with Bruny. The employees spoke about their
interest in the Union and Bruny described the Union’s role
in bargaining. He produced and distributed authorization
cards, asked the attendees to read them, and explained that
the signed cards gave the Union the right to represent them
in bargaining with their employer. Abraham and three or four
other employees signed cards at this meeting. Abraham’s
signed card, like all others introduced into evidence,2 is
headed ‘‘Authorization for Representation’’ in bold capital
letters, followed by a printed statement ‘‘I hereby authorize
Local 888, U.F.C.W.—AFL–CIO to represent me for the
purposes of collective bargaining.’’ Underneath this state-
ment are spaces for the signer to print his name, place his
signature, the date, his home phone and address, employer’s
name and address, date of hire, type of work performed, de-
partment, hourly rate, day off, shift, and whether the signer
would participate in an organizing committee. Abraham
noted that he would.
At the meeting Bruny gave Abraham a batch of unsigned
cards to distribute to other employees and return to him. In
approaching other employees, Abraham invariably explained
the purpose of the card was to have the Union represent the
employees in bargaining with Vesuvio and that the more who
signed the cards the more powerful the employees would be.
In the succeeding days Abraham distributed at least 11 au-
thorization cards, which he got back signed and gave to
Bruny.
On June 6, Abraham reported to work early in the morn-
ing to load trucks. Bruny, accompanied by Tom Langford,
another union business agent, came in and asked to speak to
Anthony Vasaturo, the president and holder of 50 percent of
the Respondent corporation’s stock. Vasaturo saw them and
took them back to his office.3 After a few minutes Vasaturo
came out to Abraham and asked him ‘‘do you know these
guys?’’ Abraham replied, ‘‘I don’t know what you’re talking
about,’’ and repeated it after Vasaturo asked, ‘‘do you know
them, how good are they?’’ Vasaturo walked over to Michael
Rubino, Respondent’s warehouse manager, asked him who
his visitors were, to which Rubino replied, ‘‘some stupid
union.’’
After completing his early morning loading work, Abra-
ham left and returned at his normal starting time in the after-
noon. In the interim, he had loaded with tape and tested a
small tape recorder which he secured in his pocket, anticipat-
ing, accurately, that Vasaturo would call him into his office
to discuss the Union’s approach to him earlier that day.
When Abraham got to work on the afternoon of June 6,
Rubino told him that Anthony Vasaturo wanted to see him
and Luis Ruiz. Both employees went upstairs and went in-
side the office. In the office were the two employees,
Vasaturo and Rubino and Frank Diglio, Vasaturo’s brother-
in-law and alleged night-shift manager. Abraham recorded
the ensuing conversation on the tape recorder he carried into
the meeting. After the recording Abraham listened to it and
testified credibly that what he heard was an accurate rep-
resentation of the conversation as it occurred. Shortly after
making the recording, Abraham delivered it to Bruny, who
gave it to union counsel. Ultimately, union counsel provided
the tape to the General Counsel. Abraham heard it again
about a week before the hearing at the offices of the Labor
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board and affirmed it was still an accurate recording of the
conversation as he recalled it. A transcript of the tape, cer-
tified as a true and correct record of the contents of the cas-
sette by a transcriber for the Nation-Wide Reporting Cov-
erage, official reporters for hearings conducted before the
Board in various Regions, was offered and received in evi-
dence over Respondent’s objection, subject to the opportunity
offered counsel to inspect the tape for authenticity and com-
pare it with the transcript for accuracy. See Savin Business
Machines Corp., 242 NLRB 435, 436 (1979), enfd. as modi-
fied in other respects 649 F.2d 89 (1st Cir. 1981). The offer
was made after counsel for the General Counsel sought to re-
fresh the recollections of Vasaturo and Rubino after they
were called as adverse witnesses by the Government pursu-
ant to Section 611(c) of the Federal Rules of Evidence. Al-
though the hearing was adjourned to provide Respondent the
opportunity to have this tape, and another offered and re-
ceived in evidence under similar circumstances, to be dis-
cussed infra, examined by an expert, Respondent’s counsel
ultimately declined to present any claim of tampering or al-
tering of the tapes, the originals of which he was provided
prior to the adjournment, by letter previously noted, and the
hearing closed on its receipt.
During his direct examination by counsel for the General
Counsel, Vasaturo could not recall calling Abraham and Ruiz
into a meeting in his office the night after Bruny had earlier
that day asked for union recognition. When next asked a se-
ries of questions dealing with his recollection of interrogating
Abraham in his office about the Union because of his belief
Abraham was the main guy, and then informing Abraham the
Union wouldn’t come into his shop, and threatening to end
the night shift and ultimately carrying out that threat, and
then offering Ruiz and Abraham straight salaries rather than
an hourly rate, Vasaturo vacillated in his responses, at times
denying any remembrance of such conduct, at other times
being less sure by replying ‘‘I don’t think so,’’ ‘‘I don’t be-
lieve so’’ or ‘‘not that I remember.’’ (Tr. 54–55.)
In an effort to refresh his recollection, counsel for the
General Counsel played the tape of the June 6 meeting re-
corded by Abraham. Vasaturo now acknowledged he must
have had the meeting and he identified some of the voices
he heard. Still, Vasaturo responded that what he now heard
himself say, ‘‘Henry, don’t play that game with me . . . I
saw your man . . . I want to know, you’re fucking with my
life, my business,’’ he didn’t remember saying any of it.
When confronted with a later statement attributed to him, ‘‘I
go to the main guy. You work for me so many years,’’ again
his recollection was not refreshed.
Later in the tape, Vasaturo informs Abraham ‘‘I trust you
Henry. I leave you there with all the fucking inventory. Your
by yourself. I have no problem with that.’’ Vasaturo then
adds, ‘‘If you’ve got a bone to pick, you pick it with us,
that’s one thing.’’ When Abraham denied having a bone to
pick, Vasaturo responds, ‘‘I don’t fucking believe it, you tell
the guy I want a fucking union.’’ Vasaturo then adds, ‘‘And
you know I’m not afraid to do what I gotta do but I have
to work. It’s not gonna happen.’’ There is no doubt this ref-
erence is to the Union becoming Abraham’s and the other
employees’ bargaining agent.
The tape also shows that some of the conversation dealt
with Abraham’s complaints about the lack of respect and ill
treatment he received from management and Luis Ruiz’ com-
plaints about the loss of paid working hours, getting paid
some days for only 4 hours of loading work even though
they are full time.
At this point in the discussion, Vasaturo exclaims, ‘‘If you
want to go on straight salary, if you want to do that I can
handle that.’’ When questioned about this statement,
Vasaturo did not recall saying it 100 percent or exactly the
way it appears on the tape. He also claimed his statement
was taken out of context, although its plain meaning as an
offer of a major change in the method of compensation is
apparent. And its evident use as a means of influencing
union adherence is strengthened by Vasaturo’s offer made a
few sentences later, ‘‘when you guys get your checks Thurs-
day morning, what can I do to make you happy?’’
Vasaturo did recall his own voice making a subsequent
statement appearing on the tape, ‘‘I started the night shift, I
could end the night shift . . . .’’ Furthermore, Vasaturo also
now recognized the voices of Mike Rubino, Frank Diglio,
Abraham, and Ruiz also appearing on the tape.
After the June 6 meeting held in Vasaturo’s office, Abra-
ham testified that Vasaturo telephoned him at his home prob-
ably on June 10. Vasaturo told him, ‘‘Henry, somebody is
lying to me. You’re not being honest with me. Somebody
signed something with these guys.’’ Abraham replied, ‘‘I
don’t know what you’re talking about’’ and Vasaturo hung
up the phone.
On the morning of Monday, June 13, Abraham was work-
ing with a crew loading trucks. Mike Rubino came and told
them that after they cleaned up, they had to go upstairs. An-
thony (Vasaturo) wanted to see everybody. When Abraham
arrived in the office upstairs, present were Vasaturo and
Rubino along with a group of some of the employees with
whom Abraham worked the night shift but who were work-
ing loading with him early that morning. Vasaturo said,
‘‘guys, I’m going to have to let all yous [sic] go. I don’t
have a guy to run the night shift. Things are coming back
messed up from the trucks. Everything is coming broken,
things aren’t being stacked the right way.’’ Abraham asked,
‘‘are you referring to me, too?’’ Vasaturo said yes, he was
referring to everybody. Abraham then asked, ‘‘Anthony, are
you doing this because of the Union?’’ Michael Rubino
stepped in the way and said ‘‘Henry, were you honest with
us?’’ and Michael told him, ‘‘shut up.’’ None of the night
crew were permitted to work the night shift that day or for
the next 2 weeks.
Luis Ruiz testified, under subpoena, for the General Coun-
sel. He had started working loading trucks on the night shift
in 1993 and was still employed. Henry Abraham gave him
a number of cards authorizing the Union to represent them.
He took them away. Since he is not literate, his brother, and
fellow employee, Edwardo Quintana, read him the contents
and told him that the card was for the Union to represent the
employees. Ruiz signed one and had his brother sign the
other and returned them to Abraham on May 24.
Ruiz was present working with Abraham and others on the
morning of June 6 when Bruny and Langford came to see
Vasaturo and then when Vasaturo came out, showed the
union business card he had received from Bruny to Abraham
and Abraham denied any knowledge of the Union or its rep-
resentatives. Ruiz was also present with Abraham when
Vasaturo, Rubino and Diglio spoke to them later that day in
the office and confronted them about the Union. Ruiz was
333VESUVIO FOODS CO.
aware that Abraham made a recording of the conversations
held at the meeting.
On another occasion shortly after the union agent de-
manded recognition on June 6, Vasaturo pulled Ruiz over in
the warehouse with nobody else around and asked if he had
seen the union card and did he have his telephone number.
Ruiz responded no to each question.
On June 13, Ruiz received a telephone call at his house
from Abraham who told him that they had fired everybody.
When Ruiz came in to work he asked Mike, ‘‘why are you
firing me, if you told me that I was day shift?’’ (Ruiz had
been informed the day before that he was going to be shifted
to days.) Ruiz now testified that Mike Rubino said that he’s
not sure if he, Ruiz, or Henry Abraham is the main guy or
somebody on the night shift. So he blew the whole night
shift off.
Ruiz testified that after Abraham’s telephone call, he ar-
ranged to tape record the conversation with management
which he anticipated would be held when he went in to work
later in the day. Ruiz recorded the conversation which was
held with Rubino, then listened to it, and reported it was an
accurate representation of the conversation, gave the tape to
Abraham who gave it to the union counsel who, in turn de-
livered it to the counsel for the General Counsel, and swore
that he recently listened to the tape again and it continued
to be the same accurate recording of the conversation. Just
as with the transcript of the tape of the June 6 meeting, I
held sufficient safeguards and custody had been established
to warrant its receipt in evidence, subject to Respondent
counsel having an opportunity to raise questions about its au-
thenticity or accuracy, which said counsel failed to do, al-
though provided with the original tape for a period of more
than a week’s recess of the hearing.
Warehouse Manager Mike Rubino had earlier been called
as a witness by the General Counsel pursuant to Section
611(c) of the Federal Rules of Evidence. When asked di-
rectly why the night shift was laid off on June 13, Rubino
said that shift was eliminated because the new night man-
ager, Frank Diglio, who had been learning through on the job
training with his predecessor, before he took over, wasn’t
doing the proper work, there were a lot of mistakes in load-
ing and other areas and so Respondent went to a daytime
loading operation. As the guys at night were hired specifi-
cally for a nighttime shift, their jobs were eliminated. Rubino
denied that the layoff had anything to do with the Union, but
his response was not completely clear cut, at first stating his
denial was based on his recollection, then saying he didn’t
believe so, and finally responding, ‘‘No, not at all.’’
Rubino could not recall attending a meeting with Vasaturo,
Abraham, and Ruiz where Vasaturo said, ‘‘I started the night
shift. I can get rid of the night shift.’’ Rubino did admit that
after the shift’s elimination, he had so much work he had to
come in at 4 o’clock in the morning and load all the trucks
himself. Rubino then denied having an individual conversa-
tion with Ruiz on June 13, the date of the layoff. Rubino
could not recall any questioning of Ruiz about who was in-
volved with the Union, if he’d seen the union representatives
before, where Abraham got a union card and who gave it to
him, asking Ruiz to swear no one approached him about the
Union, and telling Ruiz that when things calm down with the
Union he would get in touch with the night shift and give
them their jobs back. Further, Rubino had no recollection of
telling Ruiz no one would get a union in at Vesuvio, that
he couldn’t tell him the truth about the layoffs, that he
couldn’t say it was because of the Union and would never
admit it was because of the Union, or telling Ruiz that the
Union would put them all out of business, the employees
would never get any raises if the Union got in and, finally,
that he let the whole night crew go because someone was
lying about the Union.
At this point the counsel for the General Counsel played
the tape recording of the June 13 conversation to seek to re-
fresh Rubino’s recollection. Now, Rubino acknowledged that
his recollection was ‘‘somewhat’’ refreshed regarding a con-
versation he had held on June 13 with Ruiz. Yet Rubino con-
tinued to deny that he had told Ruiz that the layoff of the
night shift was because of the problems with the Union. At
this point in the transcript of the tape Rubino had first inter-
rogated Ruiz: ‘‘Luis, can you find these guys and try to find
out what’s going on? Try and find out what’s going on with
these guys, because somebody is fucking lying. I don’t want
to see somebody lose their fucking jobs. But, a few guys are
innocent, but there’s something that’s going on. Somebody
had to contact them to bring them in. They just didn’t
fucking do it on their fucking own.’’ Rubino then related the
layoff to the Union’s organizing effort and approach to Re-
spondent to bargain, expressed Respondent’s adamant refusal
to permit unionization, although he would publicly deny it
and the possibility of restoring the night shift if the union ef-
fort ends, ‘‘That thing caused Anthony (Vasaturo) a lot of
grief, a lot of money and we’re all gonna hurt by it. Nobody
gonna get a fucking union here believe me. If you guys are
involved in it or not I don’t know. You know, somebody
fucking instigated this union talk shit. Maybe we just have
to wait till it blows over you know what I mean? I’m
fucking nervous now. You should have told them, like they
were telling you, you should have told them, it was because
of the union, it wasn’t because of the night. We can’t get
into that, we can’t say that, and between me and you, I’ll
never admit to this shit. A Union here would fucking prob-
ably put us all out of business. You would never see fucking
raises . . . .’’ In spite of these statements Rubino incredibly
denied that the layoff of the night shift had anything to do
with the Union. Rubino shortly returns to and pinpoints the
reason for the layoff in the following exchange:
LUIS: I don’t know. Like I told you I had nothing
to do with no union. Why the other day I was on the
day shift, now I’m part of the night shift and got fired.
MIKE: Yeah, but how do I know who’s to blame and
who isn’t.
LUIS: So I’m the blame right?
MIKE: No. Because this way you gotta let the whole
crew go. Because somebody’s lying.
After listening to the tape Rubino did recall asking Ruiz
who signed cards with the Union, telling Ruiz that the Union
was going to hurt everybody, asking who was involved with
the Union, and repeatedly asking Ruiz if somebody was ap-
proached by the Union. But Rubino balked at agreeing that
when he said on the tape ‘‘They were never before? You
never saw those guys before?’’ he was referring to the union
representatives. Rubino even maintained that when he
pressed Ruiz as to ‘‘That day when . . . the union came in
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. . . what prompted them to come down? . . . What
prompted them to come down that morning?’’ He didn’t
think he was referring to the Union or to union delegates,
or that when he said the whole crew had to be let go because
someone’s lying, he didn’t know what he meant or what
somebody was lying about. Rubino is most inane when he
suggested that in his question to Ruiz, ‘‘You never signed
nothing?,’’ he could have been referring to Ruiz’ timecard
rather than a union card. Yet Rubino could not explain how
the sentence quoted refers to timecards. Even Rubino ex-
pressed the view that his inability to explain what he was
talking about with Ruiz on June 13 makes him seem like an
idiot. Rubino’s denials are not credited.
Rubino did also now agree that he told Ruiz that when
things calmed down he would try and get in touch with the
night shift, they could be reinstated. Rubino’s exact words
were: ‘‘All I could do at this point Luis is I gotta hope that
things calm down, things blow over. You know what I
mean? Then I get back in touch with you guys.’’ It is abun-
dantly clear that the things which he hoped would calm
down were the union drive to organize Respondent’s busi-
ness and seek a bargaining relationship.
Rubino also agreed that he asked Ruiz to please find the
guys and try to find out what’s going on, with respect to the
Union, and told Ruiz ‘‘that nobody is going to get a fucking
union here, believe me.’’
When not grudgingly admitting to certain of his statements
appearing in the transcript of the tape, Rubino continually
fenced with the counsel for the General Counsel, was non-
responsive, evasive, and feigned ignorance of the clear im-
pact and intent of his remarks all dealing with Respondent’s
extreme agitation and opposition to the organizational rights
of its employees and its intent to maintain a union-free envi-
ronment through layoffs, adamant refusal to acknowledge or
recognize the Union, never provide raises if the Union was
successful, and in seeking to identify and isolate the union
ringleaders.
When confronted with a pretrial affidavit sworn to on Oc-
tober 27, 1994, Rubino was hard pressed to explain his affir-
mation there that on or about June 13, 1994, he did not ques-
tion or interrogate employees with respect to whether they
signed a union authorization card, supported Petitioner, how
they intended to vote, or anything relative to any activities
any or all of said employees may have engaged in for Peti-
tioner. Rubino admitted having ‘‘discussions’’ and ‘‘there
was a grey area,’’ but he didn’t think he interrogated any-
body. I find that Rubino impeached himself by the direct
conflict between his affirmations in the sworn affidavit and
his statements appearing in the tape and transcript as well as
the admissions appearing on the record. They cannot be rec-
onciled. As a consequence Rubino’s denials cannot be cred-
ited, and the record is left with the multiple interrogations,
coercive and threatening statements, and admissions against
interest, in for example, describing the unlawful motive for
the night-shift layoff, appearing on the tape.
Further direct conflicts between his pretrial affidavit and
the tape concern his sworn denial of his June 13 promise to
recall employees ‘‘when the union problem is over.’’ While
in a third sworn statement in his affidavit Rubino denied on
or about June 6 threatening to terminate or lay off any em-
ployee ‘‘if they chose the union,’’ his taped statements on
June 13 clearly implying the layoff was made because the
employees (who brought in the Union) were lying and admit-
ting it was done because of the Union, and also telling Ruiz
that a union at Vesuvio would probably put them out of busi-
ness, clearly contradict this sworn denial, albeit made a week
later than estimated.
Abraham testified that after the June 13 layoffs, on June
24 while at home he received a telephone call from
Vasaturo. Vasaturo asked to see him and Abraham agreed.
Vasaturo came by in his car, parked nearby, and the two sat
in the car. Vasaturo said, ‘‘You know, things got a little
messy ever since I let you guys go.’’ Abraham said, ‘‘That
was wrong, what you did was wrong.’’ Vasaturo said,
‘‘When an apple is spoiled, either you cut what’s spoiled on
it or you dump the whole apple. I got money, and know you
guys are coming back to work, and I’m going to fight this
to the end, if it takes what it takes. You guys do what you
have to do.’’ Vasaturo also physically checked Abraham
three times to see if Abraham was recording him, even after
Abraham said he didn’t have anything. As noted earlier, the
night shift was reinstated on June 28.
On Thursday, July 28, payday, when Abraham reported for
work he went to Lenora, an employee who handles payroll,
who told him that Anthony would be giving them the checks
today. At first Vasaturo was not in. When Abraham went up
to the office a second time, Vasaturo was there and told him
to come in, have a seat and close the door. He asked, ‘‘What
is it that you want?’’ He added, ‘‘You know, if the Union
comes in, it’s going to be the Union on one side, the Com-
pany on one side and you guys in the middle.’’ Vasaturo
took the paychecks out of a drawer, gave Abraham his check
and said, ‘‘Henry, I’m going to give you a $1.00 raise.’’ He
rose from his chair, took two $20 bills from his pocket, and
gave them to Abraham, then asked Abraham what was going
to be his vote. Abraham replied, ‘‘Look, I don’t know.’’
Vasaturo said, ‘‘[W]ell you guys do what you have to do,
and I’m going to do what I’ve got to do.’’
In early August, Anthony Scala, described by Abraham as
Vesuvio’s salesman manager, was standing near Abraham by
the loading platform. Eddie Diaz, another employee, was
next to Abraham. Scala said, ‘‘If the Union doesn’t come in,
you’ve got a surprise coming to you.’’ Abraham responded,
‘‘what are you doing? That’s a threat.’’ Scala said, ‘‘Take
it as you want.’’ Eddie Diaz also asked why was he threaten-
ing Abraham. The loading employees and Scala almost got
into a fight. During his 611(c) examination, Vasaturo de-
scribed Scala as Respondent’s sales manager who received a
starting weekly salary in February 1994 of $1250, since in-
creased by the end of the year to $1299, significantly greater
than the pay received by the warehouse and driving employ-
ees who are paid by the hour. When asked where Scala’s of-
fice is located, Vasaturo avoided a direct answer, instead de-
nying there was any real office with a desk, contrary to the
facts, and claiming he was mostly on the road dealing with
customers. In addition, Abraham testified, without contradic-
tion, that he saw Anthony Scala presiding over and directing
salesmen meetings which were conducted periodically at the
upstairs offices in the Brooklyn facility, attended by both
local and regional salesmen located in Albany, New York,
and Pennsylvania. Abraham also saw Scala’s name posted on
the outside of an office upstairs at the facility. Abraham
never saw Scala in the warehouse (except on the occasion of
his uttering the veiled threat), he deals with customers, does
335VESUVIO FOODS CO.
runs to stores and, when at the facility is on the phone with
customers. It is apparent from this description of Scala’s job,
that he performs managerial functions, that he shares signifi-
cant economic interests with Respondent’s owner, Vasaturo,
and General Warehouse Manager Rubino, is closely associ-
ated and aligned with them, and not with Respondent’s rank-
and-file employees, and that his comments made to Abraham
in the presence of other employees are binding on Respond-
ent as Respondent’s agent, or one who was clothed with ap-
parent authority to speak for Respondent. See West Bay
Maintenance, 291 NLRB 82, 83 (1988); Davlon Engineering,
283 NLRB 803 (1987). While concluding that Scala was
held out by Respondent as its agent here, I will dismiss that
portion of paragraph 7 of the consolidated complaint alleging
him as a 2(11) supervisor in the absence of evidence in sup-
port of that claim.
Max Bruny, a union delegate and organizer, testified that
he visited the Brooklyn facility on the afternoon of August
3 and passed out union flyers outside the employee entrance.
Henry Abraham passed by on his way in. Paul Cole, a driver
was present at the entrance when Scala came by and told
Bruny he was sure Bruny was wasting his time because even
if the Union came in, the Company was going to be moving
to Jersey. Bruny and Scala exchanged heated words and
Rubino came out and told Scala ‘‘you have no business
doing this, screaming and threatening people outside.’’ He
then pulled Bruny to the side, told him to calm down and
in Abraham’s presence said to him that ‘‘guys who want the
Union should understand that when the Union comes in ev-
erything is going to be done by the book.’’ Bruny asked
Abraham what Rubino meant and as Rubino stood there
Abraham responded, ‘‘Max, what he means by ‘the book’ is
that anybody who is getting money under the table will no
longer get it once the Union comes in.’’ Rubino did not re-
spond. Bruny’s recital of these events, particularly in the ab-
sence of any conflicting testimony, is credited.
Thursday, August 4, the day before the scheduled election,
and also a payday. When Abraham came in to work and
went upstairs for his pay, Vasaturo again called him into his
office and told him to close the door. Vasaturo asked ‘‘what
are you going to do’’? Abraham understood Vasaturo to be
asking him who he was going to vote, and replied he didn’t
know. Vasaturo said ‘‘you guys know that I don’t have to
give you what you guys ask for. You know that if you guys
go on strike, I can go out and hire guys. What’s the union
got to offer you?’’ Abraham asked what Vasaturo had to
offer. Vasaturo now said ‘‘You guys do what you’ve got to
do, but I’m going to fight this until the end, if it takes what
it takes.’’ Later that day, when Abraham learned that other
employers were receiving extra money along with their pay-
checks, and Abraham had not received any with his pay-
check, he went upstairs and asked Vasaturo, ‘‘Anthony,
where’s my dollar, the $40.00 you gave me?’’ Vasaturo gave
him $40 and Abraham left.
Later that day, August 4, at somewhere between 7 and 8
p.m., Vasaturo came downstairs and called all the workers
together for a meeting. The whole night shift was present
plus a couple of drivers. Frank Diglio was also present.
Vasaturo started by saying, ‘‘Well, guys, you know that I’ve
got only 24 hours. I’m not supposed to be talking to you.
Guys, I swear to my mother that none of you are going to
lose your job if the union doesn’t come in.’’ He repeated
this, and then said there was a better insurance coming in,
it’s going to be a lot cheaper. Vasaturo then spoke with the
employees about buying ladders to climb, and buying freezer
coats. Ruiz had testified about a meeting which Vasaturo had
addressed toward night to which he and Abraham had been
called and at which Diglio was also present where he had
voiced complaints about the poor quality of the ladders in the
warehouse which employees had to climb to pick orders.
Both Vasaturo and Diglio had said they needed more ladders.
Ruiz believed a recording had been made by Abraham of this
meeting. The tape of the June 6 meeting recorded by Abra-
ham does not contain any such references. It is likely that
Ruiz was confused and was referring to the interchange and
Respondent’s offer of new ladders made at the August 4 cap-
tive audience meeting.
Abraham continued describing Vasaturo statements made
at the August 4 meeting. He accompanied the offers of an
improved insurance plan and ladders and the like with the
statement that we learned a lot from this, and to give us a
chance. At this point Vasaturo said, ‘‘Look, guys, if shit
comes to shovel, boom.’’ Accompanying the work ‘‘boom,’’
Vasaturo had his hands up and opened his fingers. Abraham
understand that Vasaturo was talking about burning the place
up. It is evident Vasaturo was physically describing and si-
multaneously uttering the sound of an explosion.
The parties stipulated that the representation election was
held on August 5 between the hours of 6:30 to 9 a.m. and
11 a.m. to 1 p.m. Abraham served as the Union’s observer
during the election.
Employee Nelson Hernandez testified he started working
for Vesuvio loading trucks on the night shift in March 1994.
He signed a union authorization card on May 23 at Abra-
ham’s house given to him by Max Bruny who told him that
with this card the Union would represent him. He was
among the night-shift crew let go from June 13 to 27. Her-
nandez corroborated Abraham’s testimony that at the meeting
called by Vasaturo on the morning of June 13 to announce
the firing of the night crew when Abraham stated, ‘‘[Y]ou’re
letting us go because of the Union,’’ Mike Rubino asked
Abraham ‘‘were you honest with us?’’ and Anthony
Vasaturo told Rubino to shut up.
On payday, Thursday, July 28, Hernandez went to get his
paycheck in the evening. After Lenora told him Anthony had
their checks, he went with two other employees, Danny Cor-
dova and Eli Abraham, to Vasaturo’s office. Vasaturo said
he wanted to see Hernandez privately and asked the other
two to step out. During their private conversation in the of-
fice, Hernandez received pay for a sick day, and $80 cash.
Hernandez had not asked for the sick day pay; he was not
then employed a sufficient amount of time to be eligible for
such a benefit, having worked only about 5 months. Vasaturo
asked Hernandez how he was going to vote in the upcoming
election and Hernandez told him, ‘‘honestly I don’t know.’’
Hernandez also corroborated other testimony about the
union meeting Vasaturo called later on August 4, shortly be-
fore the August 5 election. The meeting, near the loading
dock, was called by Vasaturo, and was held at about 8 p.m.
Present were the night crew and some daytime drivers. Some
employees were talking about ladders, freezer suits, and
masks when the meeting turned to a discussion of employ-
ment conditions and then Vasaturo said he was going to get
them the ladders, freezer suits, and other stuff the guys had
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 This a misnomer. Respondent called no witnesses. Counsel’s let-
ter is received in evidence as Jt. Exh. 1 and my Order of the follow-
ing day, June 13, 1995, closing the record and setting a briefing
schedule is received in evidence as Jt. Exh. 2.
wanted. Vasaturo also mentioned two types of strikes by em-
ployees. There was one type where the employees could be
replaced for good. Vasaturo told the assembled employees to
choose one guy to go upstairs to speak to him about any
problems that they have.
During his cross-examination Hernandez noted that the
August 4 meeting came about when Vasaturo came down
when the employees were actually starting to load trucks,
stopped and told them, ‘‘guys, I have a couple of minutes
with you.’’ It was when Vasaturo asked the assembled em-
ployees if they had any gripes, why were they getting the
Union involved, that a couple of the men, Hernandez himself
and Henry Abraham, complained about the ladder situation,
previously described by Ruiz as lacking feet and being un-
even, having no freezer suits for going into the freezer for
goods, and having no masks when they did the sweeping.
Daniel Cordova, also called as a witness by the counsel
for the General Counsel, testified that he had worked for
Vesuvio as a hi-low operator, loaded trucks, and cleaned the
grounds, from May 31, 1992, until November 12, 1994, and
was later recalled from early January to February 9, 1995.
His February 9, 1995 discharge is separately alleged as an
8(a)(3) violation and will be discussed infra. He signed a
union authorization card on June 8. On July 28, when he
went to pick up his paycheck, Vasaturo asked to speak with
him in his office. Alone with Cordova in his office, Vasaturo
questioned Cordova as to who brought the Union in, and
asked if Henry (Abraham) did. Cordova replied he did not
know. When Vasaturo asked if Cordova ever worked before
with the Union Cordova told him, no. When asked about his
skill, Cordova said he was a skilled welder. Vasaturo offered
to find Cordova a job next door with a company. Cordova
reported that after that Vasaturo told him he called a couple
of places, but none of them had any openings. When
Vasaturo gave him his paycheck while in his office on July
28, he questioned Cordova about how he was going to vote
in the upcoming election and Cordova replied he wasn’t sure,
that he wanted to hear both sides. Vasaturo held on to Cor-
dova’s paycheck until they were done and Cordova was
about to leave. Then, he went into his drawer, took out $50
or so, put it inside the pay envelope and told Cordova he
knew how to vote. Vasaturo questioned him one last time
about the Union and Cordova said he wasn’t sure about what
he was going to do. After Cordova left the office, he saw
Nelson Hernandez follow him into the office to speak with
Vasaturo. That conversation has been described, supra.
On August 4, Cordova was again called to Vasaturo’s of-
fice and given additional cash along with his paycheck. Cor-
dova was again asked how he was going to vote and he still
didn’t know. The entire night shift was called to a meeting
with Vasaturo later that evening. On August 1, Cordova saw
Vasaturo in the warehouse talking with Angel Vega, a driver
on the day shift. They were talking about the Union. He
heard Vasaturo say if the Union won that he would just burn
down the place and move to Jersey.
Cordova also testified to a meeting Vasaturo held with the
night-shift employees in his office at about 5 p.m. on August
3. Vasaturo spoke about the union election, asking the em-
ployees to give him a second change, that they could work
things out with him, and ‘‘there’s no need for a union.’’ If
the Union won the election, contract negotiations would have
to go through him and if he wouldn’t agree with union pro-
posals they wouldn’t get an agreement and there would be
a strike.
At sometime between 7 and 8 p.m. on August 4, Vasaturo
called another meeting of night-shift employees in the ware-
house. He started by asking for a second chance, that he had
learned a lot in the previous 2 months, and that if we could
just give him another chance, to talk to him about it. He
asked what it is that we want, there’s no need for a union,
that if more money is what we wanted, then all we had to
do was ask him. Cordova said that the Union promised to
put everything on a contract, medical coverages, money, and
job security. He asked Vasaturo to put his promises in a con-
tract. Vasaturo replied he wouldn’t do it because he might
incriminate himself.
During his cross-examination, Cordova described walking
into room 1 in the warehouse and seeing Vasaturo and Angel
Vega talking about 8 feet away when he heard the portion
of the conversation to which he previously testified. He had
gone there to get the items he was sent for. Cordova repeated
the conversation he heard, Vasaturo saying if the Union
wins, he’s going to burn down (the Brooklyn facility) and
move to Jersey. Vega just told him, ‘‘you do what you have
to do.’’
Neither Anthony Vasaturo nor Mike Rubio nor any other
person was called as a witness for Respondent. On the con-
clusion of their examinations by counsel for the General
Counsel as adverse witnesses called pursuant to Section
611(c) of the F.R.E., in each case, Joel Spivak, Esquire,
counsel for Respondent, reserved his right to cross-examine
them and to call them as Respondent’s own witnesses. They
were never called as witnesses again, and, as noted earlier,
after a continuation in the hearing was granted by me on
June 1, 1995, at Respondent’s counsel’s request to enable
him to analyze the tape recordings (Tr. 465), the said counsel
advised me and all counsel by letter dated June 12, 1995,
and faxed the same date that ‘‘the Respondent is not calling
any additional4 witnesses’’ and requested the maximum time
for the filing of briefs.
I have previously demonstrated the lack of credibility of
Respondent’s two chief executives, Anthony Vasaturo, owner
and president, and Michael Rubino, warehouse manager, in
denying, and denying any recollection of, many of their ac-
tivities in illegally seeking to thwart the Union’s drive to or-
ganize Vesuvio’s employees and to bargain on their behalf.
Where they have denied their statements and their culpability
arising from their statements appearing on the transcripts of
the cassette tapes of June 6 and 13, I have discredited them.
In particular, I have found Rubino to have impeached him-
self as a consequence of the fatal variances between state-
ments appearing in his pretrial affidavit and his admissions
at trial and the credited statements he made, particularly at
the June 13 meeting with Ruiz, transcribed from the tape of
that date. I also credit employees Abraham, Ruiz, Hernandez,
and Cordova as to their testimony, corroborative of each
other in those instances where they have testified to the same
incidents, attributing coercive and discriminatory statements,
conduct, and activity to Respondent’s chief executives, rep-
337VESUVIO FOODS CO.
resentatives, and agents, including Vasaturo, Rubino, and
Scala, particularly in the absence of any contrary testimony.
Respondent has denied Frank Diglio’s position as night-
shift manager, and his status as its supervisor and agent, and
its conduct, on or about June 6, by Diglio, in interrogating
employees as to their union activities. As noted earlier,
Diglio was present, for Respondent, along with Vasaturo and
Rubino, when Abraham was directed to the office at the fa-
cility when he reported for work on the afternoon of June
6. Diglio’s participation in that meeting, along with that of
all the other attendees, was recorded by Abraham and is part
of the record. Diglio is quoted as saying, inter alia, ‘‘okay,
Pivo is not here anymore. From now on, I’m gonna be here
at night. Nobody has the same style of management, nobody.
I expect you [addressing himself to Henry Abraham] to be
the foreman downstairs to get things done without anybody
being on your back constantly telling you what needs to be
done . . . I’m telling you this man-to-man right now, I’ll
give you respect downstairs the way I talk to myself and ev-
erybody else downstairs . . . your’s [sic] is to keep the guys
in line, make sure things get done, nobody drags their ass,
sometimes I send guys for things they come back ten min-
utes later.’’ Rubino testified that the night shift was elimi-
nated when, after Frank Diglio took over as night manager
he couldn’t overcome or eliminate the mistakes in loading.
While I have discredited Rubino’s explanation for the elimi-
nation of the night shift, Diglio’s status as night manager is
clear. Abraham testified, without contradiction, that Diglio
held the same job as Patrick Adams succeeded to after the
election, giving orders on the job, disciplining employees by
directing them to perform their assignments properly or be
sent home, and calling them back to work after lunchbreaks.
Diglio called out the orders and directed the warehouse em-
ployees to fill them and load the trucks. While Abraham had
never seen him actually suspend an employee, he got close
to that point by informing Abraham himself to be careful in
performing a work assignment and telling Abraham and
other employees he was not going to tolerate certain conduct
on the job. There was no question Diglio was his boss and
in charge of the night shift. Hernandez corroborated Abra-
ham as to Diglio’s status as night-shift manager, that he ran
the whole night crew, made sure the trucks were loaded
right, and assigned Hernandez to particular jobs.
It is evident based on Diglio’s full participation in the
management meeting at which Abraham was confronted with
his alleged participation in union organizing and directed to
explain it, his own statements made at the meeting and the
status and function attributed to him by employees, in re-
sponsibly directing their work and having the authority to
discipline them, that Frank Diglio was a manager, agent, and
Respondent supervisor within the meaning of Section 2(11)
of the Act. While he did not personally interrogate Abraham
on June 6, his presence and participation in all aspects of the
interchanges occurring at the meeting, with the tacit approval
of Respondent’s owner and main manager, make him an
agent equally responsible for the illegal conduct which took
place there.
I thus conclude that Respondent, by its named officers,
agents, managers, and supervisors committed all of the acts
of interference and restraint of employees’ Section 7 rights
alleged in the complaint as occurring during the critical
preelection period. These acts included repeated interroga-
tions, threats related to the employees’ union activities, solic-
itation of grievances from employees, and promises and grant
of benefits to employees to induce them to discontinue their
support of the Union and to vote against the Union at the
upcoming election. It is also uncontroverted that Respondent
threatened to burn down its facility if the Union won the
election, threatened to move to New Jersey, threatened to
discharge its night shift, promised to rehire its night shift
after things calmed down, promised its employees straight
salaries in place of hourly pay, improved insurance benefits,
and items of work apparel and equipment, and granted them
bribes in the form of cash supplements and increases in their
weekly pay in order to discourage their support of the Union
and win their votes in the representation election. All of this
conduct violated Section 8(a)(1) of the Act. Southwire Corp.,
282 NLRB 916 (1987). Baptist Memorial Hospital System,
288 NLRB 1160 (1988); Sears, Roebuck & Co., 305 NLRB
193 (1993); Eddyleon Chocolate Co., 301 NLRB 887 (1991).
I further conclude that by terminating the night shift,
thereby discharging its employees employed on that shift, for
the period June 13 to on or about June 27, Respondent has
violated Section 8(a)(3) and (1) of the Act.
The union petition for certification was filed on June 6 and
in all likelihood a copy was served on Respondent within a
few days. Also on June 6, two union representatives person-
ally demanded recognition and collective bargaining when
they appeared at the Brooklyn facility. Immediately, later the
same day, Vasaturo confronted Abraham as the ‘‘main guy’’
who brought the Union in and was emphatic in informing
him that union recognition was ‘‘not gonna happen.’’ Within
1 week the night shift was discontinued, ostensibly because
of dissatisfaction with too many mistakes in night loading,
even though its elimination required Warehouse Manager
Rubino to come to work at 4:22 a.m. to load trucks. The real
reason for the shutdown is disclosed on the June 13 tape,
when, after complaining about the Union’s demands and
presence and continually pressing Diaz to disclose his and
Abraham’s role in bringing the Union in, Rubino informs
Diaz that it was because of the Union although he would
never admit it, that to punish the instigators on the night
crew who lied about their instigation, the whole crew had to
be let go. Respondent’s true, unlawful motive is also made
evident in the interchange earlier, on the morning of June 13,
credibly testified to by Abraham and corroborated by Her-
nandez when, in response to Abraham’s statement accusing
Vasaturo of letting the night-shift employees go because of
the Union, Rubino asks Abraham ‘‘were you honest with
us?’’ and Vasaturo tells Rubino to ‘‘shut up.’’ Two weeks
later, Vasaturo visits Abraham and admits his mistake in ter-
minating the shift although he continues to approve the tactic
of dumping the whole ‘‘apple’’ because a part of it is spoiled
and vows to fight the union drive to the end using whatever
tactics are necessary. The shift is then reinstated. The testi-
mony and evidence cited, included the suspicious timing, the
inadequate and irrational justification for the action taken, the
virulent hostility and threats to defeat the union organization,
and finally, the admissions that the extreme tactic of termi-
nation of the shift was designed to ferret out and stop the
protected activity of unknown, but suspected shift employees,
overwhelmingly warrants the conclusion that the union activ-
ity of its employees was the motivating factor in the shift’s
discontinuance in violation of the Act. It is also clear that
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
absent the employees’ protected concerted activity, Respond-
ent would not have taken such action and, thus, it is unable
to meet its burden of proof under the Board’s Wright Line
test, established in Wright Line, 251 NLRB 1083 (1980),
affd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), and affirmed by the Supreme Court in NLRB v.
Transportation Management Corp., 461 U.S. 393, 400
(1983).
B. The Consolidated Objections and Challenged Ballots
and Their Impact on the Election
The objections consolidated for hearing in the Regional
Director’s report include Objections 1 through 5 which track
and duplicate unfair labor practice allegations in the consoli-
dated complaint. Objection 1 alleges the employer paid the
employees a substantial wage increase 1 and 8 days before
the election. Objection 2 alleges that in the weeks preceding
the election the Employer told employees that it would never
bargain with Local 888 in the event the Union won majority
support in the election. Objection 3 alleges the June 13 ter-
mination of all employees in the night shift because of their
support for Local 888. Objection 4 alleges that during the
preelection period, the Employer threatened employees with
adverse employment consequences because of their support
for the Union and in the event it won the election. Objection
5 alleges that during the preelection period, the Employer
promised inducements to employees.
The facts supporting each one of these five objections has
been presented and their legal consequences analyzed in the
prior section. Each of these objections, alleged as unfair
labor practices, has been sustained. As they represent conduct
all occurring between the filing of the petition and the elec-
tion they may be considered as bases for setting aside the
election. Ideal Electric & Mfg. Co., 134 NLRB 1275, 1278
(1961).
In determining whether conduct encompassed by objec-
tions justify setting aside an election, the Board focus is on
the degree to which the conduct has sufficiently impaired the
employees’ freedom of choice of representative. Generally,
conduct violative of Section 8(a)(1) is, a fortiori, conduct
which interferes with the exercise of a free and untrammeled
choice in an election. Dal-Tex Optical Co., 137 NLRB 1782,
1786–1787 (1962).
In addition to Objections 1 through 5, the Union filed Ob-
jections 7 and 9, also consolidated for hearing. Objection 7
alleges that on or about August 3, the Employer assigned
unit employees Angelo Sanchez and Tom Polito to an out-
of-town, overnight work assignment that precluded their re-
turn to the facility before the close of the election polls on
August 4. Objection 9 alleges that by these and other acts,
the Employer prevented a fair election from being held.
As earlier noted, the election was scheduled for Friday,
August 5, and was held between the hours of 6:30 to 9 a.m.
and 11 a.m. to 1 p.m.
Abraham described an Albany, New York run to which he
had once been assigned. The truck assigned is loaded on
Tuesday night and leaves the Brooklyn facility on Wednes-
day morning. The truck is loaded with multiple bags of flour
and containers of cheese. In Abraham’s experience there are
2 to 3 hours’ traveltime between stores where the goods are
delivered. The truck is manned by a driver and helper. Some-
times, a pickup of cheese is made in Vermont before the
truck returns to the facility. On Abraham’s trip, he did not
return until early Sunday morning. Abraham loaded the truck
which left Brooklyn for the Albany run on Wednesday morn-
ing, August 3. The load was large, and the many bags of
flour and containers of cheese had to be stacked for delivery
to the customers in proper order. Tom Polito, the steady driv-
er on that run, also made that run. Angel Vega, not usually
assigned, was put on that run as the assistant. Vega’s usual
assignments were on local New York City and Long Island
routes. The truck did not return until Friday afternoon after
the close of the polls.
According to Abraham’s uncontroverted testimony the Al-
bany run is usually a 2-night trip, with the truck returning
as late as a Friday night or early Saturday morning. Only
trucks with very light loads return by Thursday evening and
when the driver is sent from Albany to Vermont to pick up
cheese for return in the empty truck even a lightly loaded
truck will return on Friday.
Abraham also asserted, without any contrary testimony,
that employees not eligible to vote in the election because
they were new hires, could have been assigned to the Albany
run in place of the two eligible employees. While on cross-
examination, Abraham limited the new hires who could have
been assigned to the classification of helpers. In his experi-
ence, Vasaturo normally had no difficulty finding drivers in
the past when he needed them, and, even without experience
on this run, specific directions could have been provided as
they were to drivers on trucks in which Abraham assisted as
helper.
As to Objection 9, the complaint alleges a number of un-
lawful acts and conduct engaged in by Respondent, not spe-
cifically alleged in Objections 1 through 5, which were dis-
closed by the independent investigation, and on which the
Regional Director ordered consolidated hearing in his Janu-
ary 5, 1995 report. These include interrogating its employees
about their union activities, creating the impression it was
keeping their union meetings and activities under surveil-
lance, promising to rehire discharged employees if they
ceased their union activities, soliciting complaints and griev-
ances, and impliedly promising employees increased benefits
and improved terms and conditions of employment to induce
their abandonment of the Union, promising employees assist-
ance in obtaining other employment in order to induce them
to cease union activities and to vote against the Union,
threatening to burn down its facility if its employees voted
in the Union, and threatening that a strike would be inevi-
table if the employees selected the Union as their bargaining
representative. I have previously credited the employee wit-
nesses’ testimony which related the statements, attributed to
Vasaturo and Rubino, establishing the interrogations, impres-
sion of surveillance, solicitations, promises of benefits and
other jobs, threats to burn down the facility, and the inevi-
tability of strikes if the Union was successful in the election.
These items of objectionable conduct, as well as one more
to be discussed, shortly, even though not specifically alleged
may, if established, constitute objectionable conduct to the
election. See White Plains Lincoln Mercury, 288 NLRB 1133
(1988).
The final item of objectionable conduct disclosed by the
investigation of the petitioner’s objections and presented at
the hearing, was the meeting to which a number of employee
witnesses testified having been called by Vasaturo among the
339VESUVIO FOODS CO.
5 I have previously found Anthony Scala, Respondent’s sales man-
ager, to be a managerial employee, and/or sufficiently closely
aligned with Respondent’s management and held out to be such to
its employees, such that his implied threat of adverse consequenses
uttered to Abraham if the Union was defeated, as well as his threat
in the presence of employee Cole of a move to Jersey, are binding
on Respondent.
night-shift employees, attended as well by some day drivers,
and which was held sometime between 7 and 8 p.m. on the
evening of August 4, well short of 24 hours prior to the elec-
tion scheduled for the following day. The credited testimony
of employee witnesses show that Vasaturo was well aware
of the Board rule interdicting such meetings and apparently
was prepared to undergo the risk that holding the meeting
entailed. Not only did the timing of the meeting violate the
Board rule announced in Peerless Plywood, 107 NLRB 427
(1954), but the statements he made there independently have
been found to have violated the Act. These include his prom-
ises to provide improved insurance and pay, ladders, and
freezer costs in the context of asking for another chance to
avoid unionization, as well as his threat to burn the facility
if the employees voted in the Union, made explicit in his
earlier threat of August 1 to Angel Vega, overheard by Cor-
dova, and his threat that a successful union vote would lead
to strikes.
Turning to the challenged ballots, I have previously noted
they were 10 in number and were sufficient in to affect the
results of the election. Jose Rosales was challenged by the
Board agent because his name did not appear on the payroll
eligibility list provided by the Employer. The ballots of Jo-
seph Pionel, Frank Diglio, Anthony Scala, and Michael
Rubino were challenged by the Union because they were al-
leged to be supervisors. The ballots of Anthony DePete,
Lynton Brandt, Ellio Chillo, Wayne Rismo, and Ralph
Frascona were challenged by the Union because they were
alleged to be employed in job classifications outside the stip-
ulated unit.
The parties stipulated on the record that the challenge to
the ballot of Jose Rosales should be overruled and his ballot
should be counted. The parties further stipulated that Michael
Rubino is the warehouse manager and a supervisor and the
challenge to his ballot should be sustained. Also, the parties
stipulated that for purposes of this proceeding the ballots of
Brandt, Chillo, Scala,5 and Frascano shall not be counted.
Uncontested testimony by Abraham disclosed that besides
working for Respondent as night manager and supervisor
until the election or shortly afterward, Frank Diglio also op-
erated a personal business he had purchased delivering
Pollyo Ricotta cheese from his own truck out of Respond-
ent’s Brooklyn facility. According to Abraham, Anthony
DePete was employed in running Diglio’s private business
from the facility. Abraham never saw DePete performing any
work for Vesuvio. He always came in and picked up Diglio’s
products, got in the truck and left, and later returned to store
goods in a refrigerator that Abraham avoided. As against this
testimony, Respondent’s payroll shows an employee, An-
thony DePete, receiving wages of $412 a week based on a
40-hour workweek, with a rate of $10.30 per hour, and with
all the usual deductions being made from his gross weekly
pay, as well as entries for holiday and sick pay. Vasaturo de-
scribed DePete as a driver. It would make little sense for Re-
spondent to incur a continuing obligation for DePete as an
employee with the wages and benefits he received, if DePete
was solely employed by Diglio. During the period up to the
election Abraham spent most of his working hours on the
night shift, usually starting early at 2 or 2:30 p.m. with some
additional morning hours performing loading assignments. I
am not convinced that Abraham was available to track
DePete’s working schedule, which shows some weeks in
1994 of 8, 16, 24, and 36 hours. It is likely that DePete per-
formed outside work for Diglio from the facility in those
weeks during which he worked fewer than 40 hours for
Vesuvio. Since I am prepared to credit Respondent’s payroll
in this matter, I conclude that the challenge to DePete’s bal-
lot be overruled and that his ballot be opened and counted.
Abraham also testified, without contradiction, that Re-
spondent left its trucks parked out on the street overnight,
and that Wayne Rismo’s job was to take turns along with an-
other employee, in watching and guarding the trucks while
parked overnight. Inasmuch as Respondent offered no evi-
dence to dispute this testimony, I conclude that the objection
to Wayne Rismo’s ballot be sustained as he performs work
for Respondent in an excluded, nonunit classification. Nei-
ther Rismo’s Chillo’s, or Francona’s names appear on Re-
spondent’s payroll covering the period January 1 to Septem-
ber 30, 1994, received in evidence as General Counsel’s Ex-
hibit 5.
I have previously determined that Diglio was a night man-
ager and supervisor through the date of the election, and, ac-
cordingly, the objection to his ballot should be sustained. As
to Joseph Pionel, Vasaturo agreed, in accordance with the
notation appearing on his personnel record, that Pionel was
assistant manager for the warehouse, at least by the time he
was approved for an increase in salary from $525 to $551
per week as of May 1, 1994. Pionel also participated in Re-
spondent’s 401(k) savings and investment plan in 1994
through payroll deductions. All of management, along with
only a few warehouse employees, Abraham and Walter Nel-
son, were participants in the plan.
Abraham considered him a manager, because on the night
shift, in the absence of Diglio or if Diglio was otherwise en-
gaged, Pionel was in charge, directing the warehouse em-
ployees in their assignments and telling them when to go and
where. Pionel did not load trucks but called out directions to
warehouse employees to fill the orders for flour and cheese,
in the same manner as Diglio and, after Diglio left, Patrick
Adams. On the occasions that Mike Rubino was out, for va-
cations and the like, Pionel took over and ran the day shift
in the warehouse and exercised the same authority as Rubino
had. When Rubino is present, Pionel also continues to call
orders and direct employees, particularly when Rubino is
otherwise occupied. Pionel also opens and closes the facility.
Unlike other longtime employees who may merely assist
Rubino on occasion in passing along the orders to the men,
Pionel can take disciplinary action on his own and if Rubino
is present Pionel will report such actions to Rubino. Such ac-
tions include sending a worker home or otherwise disciplin-
ing him. Abraham never saw Pionel fire anyone. Hiring au-
thority by Pionel will usually be subject to Rubino’s ap-
proval.
Based on the foregoing evidence, and, in the absence of
any contrary evidence, I find and conclude that at last on Jo-
seph Pionel’s promotion to assistant manager of the ware-
house on May 1 and with a $26-a-week increase in salary,
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he became a supervisor under Section 2(11) of the Act with
authority to responsibly direct employees requiring the use of
independent judgment, and that employees understood that
Pionel possessed such authority and related authority to dis-
cipline them while in sole, or joint (with Rubino) charge of
the warehouse operation during the day, and, on occasion,
solely in charge at night. Accordingly, I will recommend that
the challenge to his ballot be sustained.
Based on the foregoing discussion and analysis of the ob-
jections to conduct affecting the results of the election and
the challenges to ballots cast in the election, I rule as fol-
lows. I conclude that the objections, which include most of
the serious unfair labor practice allegations arising under
Section 8(a)(1) of the Act, the suspension of the night shift
and cash bribes given to employees alleged as violations of
Section 8(a)(3) and (1) of the Act, have all been sustained
and, alone, warrant setting aside the election. There is no
question but that Respondent’s overwhelming pattern of
threats of burning down and moving the facility, warnings,
interrogations, creating the impression of surveillance of em-
ployee union activities, solicitation of grievances, promises
and grants of benefits, raising the specter and inevitability of
strikes if the Union was successful in the election coupled
with the futility of selecting the Union, and its discharge of
the night crew to punish the employees when it could not in-
duce the suspected ringleaders to step forward, destroyed the
laboratory conditions necessary for the Board’s conduct of an
election, and compel the setting aside of the election.
Aside from the foregoing conduct, Respondent engaged in
other conduct which should nullify the election. Because
Vasaturo called and held a meeting of the night-shift employ-
ees, and day employees then present at the facility, within 24
hours of the election, Respondent knowingly violated the
Board’s Rule forbidding election speeches on companytime
within 24 hours of the scheduled election to massed assem-
blies of employees, Peerless Plywood, supra, and the election
must be set aside for this reason alone.
Finally, it is apparent that Respondent assigned two em-
ployees eligible to participate in the election to an out-of-
state work assignment which it knew would in all probability
make it impossible for them to return timely to vote in the
election. And they did not. The votes of these two employees
was, or would likely be determinative of the outcome in the
sense that the winning margin for the Employer was only 3
votes and 10 votes were cast under challenge, themselves de-
terminative of the outcome and thus, clearly subject to deter-
mination after hearing. Under these facts, the Board law re-
quires the setting aside of the election on this ground alone.
As held by the Board, ‘‘Where the conduct of a party to the
election causes an employee to miss the opportunity to vote
the Board will find that to be objectionable if the employee’s
vote is determinative and the employee was disenfranchised
through no ‘fault’ of his own.’’ Versail Mfg., 212 NLRB
592, 593 (1974). Here, the employer’s conduct removed the
2 affected employees from any opportunity to cast their bal-
lots in a unit of approximately 34 eligible voters. Such con-
duct must result in setting the election aside.
Turning to the challenges, I will recommend, in accord-
ance with my preceding discussion and analysis, and the par-
ties stipulations, that the challenges to ballots cast by Pionel,
Diglio, Scala, Rubino, Brant, Chillo, Rismo, and Frascona be
sustained and that the challenges to ballots cast by Rosales
and DePete be overruled. However, inasmuch as the remain-
ing two unresolved ballots are no longer determinative of the
outcome of the election, I will not recommend that those two
ballots be opened and counted, but instead, will recommend
that the election be set aside. Whether a rerun election is
held will depend on my ruling on the General Counsel’s ap-
plication for a Gissel remedy, to be discussed infra.
C. The Alleged Unlawful Conduct by Respondent
Following the Election, Including the Transfer and
Discharges of Employee Abramson and the Discharge
of Employee Cordova
On October 17, Vasaturo and Rubino approached Abraham
and Vasaturo told him he was going to go to day shift. Abra-
ham asked why. Vasaturo replied, ‘‘[B]ecause your giving
Patrick a hard time.’’ Abraham asked, ‘‘In which way? What
are you talking about that I’m giving him a hard time.’’
Vasaturo said, ‘‘You’ve got a loud mouth, and you run your
mouth too much.’’
As to Patrick Adams, he is alleged as night manager and
supervisor in the consolidated complaint. The General Coun-
sel clarified that this status only began after the election;
Adams was eligible to vote in the election. Vasaturo claimed
that Adams was a night loader, loading trucks 90 percent of
the time, and making sure the trucks are parked the right
way, the men show up for work, and keeping the warehouse
organized, stocked properly, and inventory the night supply
10 percent of the time. When pressed then as to who super-
vises the night shift Vasaturo at first feigned a lack of under-
standing of the meaning of supervisor, but then answered
that Adams was in charge of the night shift. He approves
employees leaving the shift early because of illness; he is the
one to receive calls from employees who report they are not
coming in to work. The personnel records show that Adams
received a salary increase from $584 to $650 a week on Sep-
tember 14, made application to join Respondent’s 401(k)
plan on October 28, and by November was a participant in
the plan. Adam’s weekly salary is in contrast with all ware-
house and driver employees who receive an hourly wage,
varying between $6 and $17.50 an hour. Vasaturo also
agreed that Adams gives orders to employees to pick mer-
chandise and load the trucks. Abraham noted that Adams
made sure the trucks were loaded and the guys were work-
ing. He had the authority to discipline employees by giving
work orders which, if not followed, could result in the em-
ployee being sent home. On one occasion, according to Nel-
son Hernandez, Adams sent employee Daniel Cordova home
early from work after he told Adams that the product he was
supposed to get from a warehouse shelve was too high and
he couldn’t climb to get it. On this record I conclude that
beginning in mid-September, Patrick Adams has been a su-
pervisor within the meaning of Section 2(11) of the Act.
On the day shift, Abraham was put to work on a truck un-
loading products and making deliveries to pizzeria’s and res-
taurants. On Tuesday, October 25, Abraham had just returned
from a run to New York City with Paul Cole, the driver,
when Vasaturo approached him and asked, ‘‘What was
wrong with the election?’’ Vasaturo said he had seen Abra-
ham’s signature again. Abraham replied, ‘‘What are you talk-
ing about? What signature?’’ Vasaturo again asked what was
wrong with the election and again Abraham said he didn’t
know what Vasaturo was talking about. On October 14,
341VESUVIO FOODS CO.
Abraham had filed the charge in Case 29–CA–18619 alleg-
ing the June 13 termination of the employees on the night
shift as violative of Section 8(a)(1) and (3) of the Act. A
copy of the charge was served on Vesuvio between Thurs-
day, October 20, the date stamped on a postmark on the
green certified receipt and Tuesday, October 25, the date of
this conversation.
On Friday, November 25, Abraham reported in to work for
the day shift, clocked in, and heard Rubino, who was stand-
ing nearby, make some remark that ‘‘I can’t wait to get rid
of some assholes here.’’ Later, in the morning, Abraham
asked Rubino for the day off. He asked ‘‘if you don’t got
nothing I can use the day. I’ve got some errands to do with
my wife, if you don’t have nothing [sic].’’ Vasaturo said he
would check the sheet for the day’s assignments for the driv-
ers and helpers. He said, ‘‘Let me go and see if I’ve got ev-
erybody filled in. If I don’t need you, I’ll give you the day.’’
A few minutes later, Rubino came and told Abraham if he
wanted the day he could take it. Rubino said, ‘‘I’ve got ev-
erybody filled in. I’ll see you Monday.’’ As explained by
Abraham, Friday is the lightest workday for deliveries. Abra-
ham has seen other employees ask for time off if it’s a light
day, or just take the day off, and has seen Rubino send em-
ployees home if it’s a light day. Note that employees are
only paid for working hours, not the hours comprising a nor-
mal workday. Ruiz complained about this in his and Abra-
ham’s June 6 meeting with Vasaturo and Diglio.
On Monday, November 28, Abraham was sent out on a
truck with Oscar (Rivera) for the day. On Tuesday, Novem-
ber 29, after clocking in, Rubino told him Anthony wanted
to see him. Abraham went upstairs to the office. Vasaturo
told him he was being terminated. Abraham asked, ‘‘What
are you talking about, why are you letting me go? Vasaturo
said, ‘‘You don’t want to go to Albany, and Mike said that
you came in drunk Friday.’’ Abraham had gone to Albany
on a run a week before Thanksgiving, but had expressed
misgivings at the time of the assignment because his wife,
who was pregnant, had a high risk of miscarriage because of
an asthmatic condition and Abraham didn’t want to leave her
alone for the 3 or 4 days of the trip. Abraham went after
Vasaturo told him he was the perfect person for the route,
but told Vasaturo as for the next week, he didn’t know if he
was going to be able to go again. On that trip, Abraham
didn’t return until Sunday morning. While he was away, his
wife came to the job and Vasaturo told her she didn’t look
good and looked sick. Later, Abraham told Vasaturo that
when his wife had her checkup with her doctor he would
bring in a letter from him informing his employer that his
patient should be attended to during her pregnancy and not
be left home alone.
At their November 29 meeting, Abraham now questioned
Vasaturo, asking, ‘‘Why is Mike telling you that I’m drunk?
What is he talking about?’’ Abraham also went over the
health problem of his wife and his promise to bring a letter
from her doctor. Vasaturo’s only response was to tell Abra-
ham, ‘‘Do what you got to do. I’ve got a lot of things on
you.’’
When Abraham returned home after being fired, his wife
had returned home from her visit to her doctor with a letter
from him describing her condition and asking that her hus-
band not be transferred at this time. The letter, dated Novem-
ber 29, on Dr. Robert H. Molsen’s letterhead, confirmed that
Diane Blas (Abraham’s wife) was presently under his care
for maternity. Due to her condition and her severe asthma,
he requested that her husband not be ‘‘transferred’’ at this
time. Abraham returned to the facility and gave the letter to
Mike Rubino who said, ‘‘Oh, I’ve got more than this on you.
I’ve got a lot of things on you.’’
Abraham never received any complaints, written warnings,
or suspension from Respondent regarding his work. Follow-
ing his discharge Abraham has not received an offer to return
to work for Vesuvio.
On June 6, after the union representatives had visited the
facility and made their bargaining demand, Mike Rubino told
Abraham and Ruiz, ‘‘There’s four guys out there I would
keep. The rest I’d let go in a heart beat. You two I would
keep Nelson, I would keep Sam . . . .’’ Frank Diglio added:
‘‘If they’re not good workers they gotta go.’’ I have also
previously quoted Vasaturo’s positive comments about Abra-
ham’s work performance appearing on the June 6 tape.
When Abraham started as an employee in 1987 there was
no night shift. He went to the night shift when it started in
the summer of 1993 and remained on it, through the June
1994 suspensions until October 17. In his estimation, Abra-
ham had been assigned to the new shift because he ran the
hi-low pretty good and he knew basically everything on the
job. He drove the hi-low, cut things down, loaded trucks, and
stacked. When Abraham was transferred to the day shift he
now was put on a truck making deliveries. The counsel for
the General Counsel alleges that the transfer was both retalia-
tory and a change to a more onerous job. In terms of pay,
there was basically no change except the overnight trips re-
ceived extra pay. There is no evidence that any other em-
ployee was transferred to days. When Vasaturo explained to
Abraham when he asked for reason for the transfer that he
had a loud mouth and ran his mouth too much, Vasaturo’s
implication was clarified within days when he asked Abra-
ham, in violation of Section 8(a)(1) of the Act, what was
wrong with the election and told him ‘‘I saw your signature
again,’’ referring to the charge Abraham had signed and filed
on October 14. (The Union had earlier on June 13, filed a
charge alleging the night-shift elimination as a violation, but
had withdrawn it on June 27 when the shift was restored.)
There was no Respondent witness, not Patrick Adams, nor
Vasaturo, nor Rubino to testify just what Abraham had done
or said to Adams to cause his transfer. In the absence of any
rational explanation from Adams or the others the record is
left with only the reasonable inference I have found based
on Respondent’s antiunion animus, its conduct and actions
designed to unlawfully thwart the union drive, and the dis-
criminatory conduct it had already taken against Abraham
himself at the time of the termination of the night shift. The
day shift required deliveries to be made in basement storage
areas, and in bad weather conditions and thereby subjected
the truck helpers to a greater physical risk than the night
loading. It also made Abraham subject to assignment to the
2- to 4-day out-of-state deliveries to Albany and other loca-
tions with the attendant lengthy hours and separation from
home. I therefore find it was more onerous than the night
shift. Aside from these factors, it is evident that Respondent
singled out Abraham for this change, thereby removing him
alone from daily work association with the employees on the
night shift who Respondent believed were the core group
which instigated the union organizing drive and making clear
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to his cohorts the price of union leadership. Abraham himself
didn’t feel comfortable with the transfer because he expected
that Vasaturo, somehow, was going to find a way to dis-
charge him, and he was proven right just over a month later.
While I find that Respondent did not have actual knowl-
edge of Abraham’s October 14 charge on October 17 when
it transferred him, it did have knowledge on that date of
Abraham’s outstanding participation in the union drive, in-
cluding his acting as union observer at the election and chal-
lenging the ballots of Pionel, Diglio, Scala, and Rubino,
among others, because of their alleged supervisory functions.
Respondent also had received by on or about September 20,
the initial charge, filed by the Union in Case 29–CA–18502,
which alleges violations of Section 8(a)(1) and (3) by Re-
spondent in paying substantial wage increases, threatening
adverse employment consequences, telling employees Re-
spondent would never bargain with the Union, and promising
inducements. Most of this conduct, while it was repeated
with others, first took place in conversations and dealings
with Abraham by both Vasaturo and Scala. Respondent then
would have concluded that Abraham was providing informa-
tion to the Board in support of the charge. Thus, I also con-
clude that the transfer was motivated by not only Abraham’s
protected concerted activity but also by his filing charges and
giving testimony under the Act. See Atlantic Limousine, 316
NLRB 822 (1995); Douglas Aircraft Co., 308 NLRB 1217
(1992); Marshall Durbin Poultry Co. v. NLRB, 39 F.3d 1312
(5th Cir. 1994).
As to Abraham’s discharge, I conclude that the reasons
provided Abraham for his dismissal were pretextual and
shielded Respondent’s real reason, his known leadership of
the union movement. Vasaturo had recognized Abraham’s
union role starting on June 6 when he suggested providing
Abraham and Ruiz with straight salaries, and continuing
thereafter including the June 13 dismissal of the night shift
and the June 24 visit to near Abraham’s home, the allegation
that he had a loud mouth, and Rubino’s asking whether
Abraham had been honest with Respondent after Abraham
suggested, rightly, that the union movement was the true mo-
tivation for the shift termination. When Vasaturo questioned
Abraham on October 25 as to why he was raising questions
about the validity of the election and made known his aware-
ness of Abraham’s new charge alleging the shift layoff as a
violation, Respondent was publicizing its concern and hos-
tility to Abraham’s union role as well as his use of Board
processes. It was only a matter of time until, as Rubino so
crudely put it, ‘‘I can’t wait to get rid of some ass holes,’’
that Respondent manufactured two reasons, for Abraham’s
discharge, neither of which can withstand close scrutiny and
neither of which did Respondent support by the offer of any
evidence. The testimony credibly attributed to both Vasaturo
and Rubino that Respondent had a lot of things on Abraham
show an employer groping for a rationale to support Abra-
ham’s discharge where no legitimate basis existed.
Vasaturo’s statement that Abraham didn’t want to go to Al-
bany ignores Abraham’s performing such a trip a week ear-
lier under a severely limiting condition—the serious health
risks faced by his wife and the need for Abraham’s daily at-
tendance to her—which Vasaturo became aware of both
through conversations with Abraham and seeing his wife at
the facility and which should have been sufficient to warrant
Respondent’s selection of another employee for the Albany
assignment. In fact, the record does not show that Abraham
refused a particular Albany assignment but only that he ad-
vised Vasaturo in advance that the following week he didn’t
know if he would be able to do it because of his wife’s con-
dition. Abraham’s expressions of doubt about the problematic
nature of the assignment were corroborated by the letter from
his wife’s doctor which he delivered to Respondent later on
the same day of his discharge.
Vasaturo’s other reason for the discharge is equally sus-
pect. Rubino never mentioned anything about Abraham’s
physical condition or his being drunk on Friday, November
25, and even excused him for the day after checking the
schedule and telling him he’d see him on Monday. Nothing
was said on Monday about his condition. Vasaturo’s claim
that ‘‘Mike said you came in drunk on Friday,’’ was not sup-
ported by Mike Rubino or by Joseph Pionel, also available
to Respondent as a witness, in any testimony even after
Abraham credibly denied any drinking or physical signs of
drinking or that Rubino ever mentioned his alleged inebriated
condition to him. Abraham did acknowledge having three
beers with his Thanksgiving dinner but strongly denied any
signs of intoxication or illness on the day after. Rubino was
impeached as a witness, so any reliance Vasaturo may have
placed on his credibility in judging Abraham’s condition on
Friday is completely undermined. We are left with the Re-
spondent’s strong motivation to rid itself of Abraham at any
cost while the results of the representation election remained
clouded by multiple objections and determinative challenges
and unfair labor practice charges with probable merit against
it continued to be filed. In firing Abraham Respondent was
only following through on its threat to keep the Union (and
its chief advocate) out of its Brooklyn facility. Its conduct
in doing so violates Section 8(a)(1), (3), and (4) of the Act.
Neither has Respondent sustained its burden that it would
have transferred and fired Abraham in the absence of his
Section 7 conduct.
Daniel Cordova was hired as a night-shift warehouse em-
ployee on June 6, 1994, and continued in that capacity until
November 13, 1994, when he left voluntarily because of dis-
satisfaction with lack of overtime and lack of respect. He
then was rehired on January 3, 1995, and was terminated on
or about February 19, 1995. While employed on the night
shift Cordova operated a hi-low, loaded trucks, and cleaned
the grounds. He never received any written or verbal dis-
cipline or warning. Cordova signed a union authorization
card given to him by Abraham, on June 8 while both were
in the back of the warehouse near the employee lockers. As
recounted earlier, on July 28 Vasaturo confronted him in his
office as to who brought the Union in and as to whether it
was Abraham. In the same conversation Vasaturo offered to
assist Cordova in obtaining a welding job, a skill he dis-
closed, with a firm located next store and pressed him as to
how he was going to vote in the upcoming election. When
Cordova said he wasn’t sure, Vasaturo placed $50 in his pay-
check envelope. The following payday, on August 4, Cor-
dova found extra cash already in his pay envelope. At the
captive audience meeting the evening of August 4, Cordova
asked Vasaturo to put his promises of more money, among
other improvements, in writing just as the Union promised
to put everything such as medical coverage, money, and job
security in a contract. Vasaturo publicly declined and in all
likelihood interpreted Cordova’s question as an unwarranted
343VESUVIO FOODS CO.
cross-examination and as showing his leanings in favor of
the Union. Cordova voted in the representation election held
on August 5, 1994. After leaving work in November, Cor-
dova returned to the facility in December during the holidays
to visit with friends among his prior coworkers. While stand-
ing in the warehouse waiting for the friends to come down,
Rubino now questioned him, asking if Henry (Abraham)
brought the Union in. By doing so, Respondent engaged in
an unlawful interrogation of an employee in violation of Sec-
tion 8(a)(1). When Cordova said he didn’t know, Rubino said
he was lying and didn’t want to get any of his friends in
trouble. This last accusation establishes, if Respondent’s ear-
lier conduct toward him did not, that Respondent considered
Cordova a union adherent closely associated with Abraham
and others on the night shift and not to be trusted as an em-
ployee.
In late December 1994, when Cordova sought to return to
Respondent, Rubino told him he would call him when there
was an opening. A week or two later Rubino called him and
said to come in after learning Cordova wanted to work.
Rubino did not tell him the job was temporary or condi-
tional. Starting January 3, 1995, Cordova performed the same
job at night he always had. When he asked Night Manager
Patrick Adams about his status Adams told him his job was
full time and he had nothing to worry about. Adams, who
I have found to be a statutory supervisor, was not called as
a witness to dispute Cordova’s testimony and Cordova is
credited on this exchange as well as all others to which he
testified with Vasaturo and Rubino. On or about February 19,
1995, Cordova reported to work at about 6 p.m. Rubino
pulled him over to the side and told him due to cutbacks,
he was the last guy hired and had to be the first one let go.
Cordova disputed Rubino’s assertion. Two employees,
working that day, were hired after Cordova. They were Cesar
Rodriguez and Miguel Fernandez. Rodriguez was hired a
week after Cordova and Fernandez was hired the same day
he was fired. The two were standing nearby and Cordova
told Rubino these two guys were hired after he was. Rubino
replied that Cordova had no authority to question him. Cor-
dova then asked Rubino just to tell him the truth as to why
he was being fired. Rubino just walked away from Cordova.
As Cordova kept after Rubino, Patrick Adams came over,
pulled him aside and told him ‘‘I know the reason why your
being fired. It’s not due to cutbacks. It’s due to what hap-
pened last year.’’ Cordova said what happened last year was
just the Union. Adams nodded his head up and down, indi-
cating yes, and walked away. Cordova has not been recalled
to work since that date.
Vasaturo testified during his examination by the General
Counsel that Cordova was hired back on a temporary basis
and then was let go when it got slow. Vasaturo claimed
Rubino told Cordova his status was temporary but he did
not. Respondent did not produce any document showing its
claimed characterization of Cordova’s rehire. In fact, a num-
ber of night-shift warehouse employees performing the same
work as Cordova were hired after Cordova was let go and
others, hired after Cordova was rehired but before his dis-
charge, were continued on the payroll after his separation.
Thus, Jeff Monsegut started February 21, 1995, as a
helper/loader on the night shift and worked through March
12. Miguel Hernandez, another night loader, hired on January
30, 1995, continued to work until April 2. Cesar Rodriguez,
previously identified by Cordova, was hired on January 16,
1995, as a night-time loader and was still working on the
date of the hearing. Carlos Ramos was hired on March 20,
1995, after Cordova’s discharge and was still working at the
time of the hearing on May 30.
According to Rubino, on his 611(a) examination, Cordova
was hired in November to meet a temporary need on the
night shift in a strictly shapeup position ‘‘until I found the
right people that I wanted to work for me.’’ According to
Rubino he told Cordova on the phone that he had a few guys
the last couple of nights who didn’t show up for work and
he needed an extra body. If he came back it was going to
be strictly temporary, fill-in position. He then asked if Cor-
dova wanted to come back for a week, 10 days’ worth of
week and Cordova agreed. In fact, Cordova worked for more
than 6 weeks before he was let go. Rubino expressed dis-
belief and surprise when told of the length of Cordova’s last
work term. Although Rubino had no problem with Cordova’s
work performance, and, indeed, had called him back in Janu-
ary, he now attempted to explain that ‘‘I guess the situation
was where I was bringing in other people. I tried other new
people, and I told him that the conditions on which I brought
him, these conditions have now been fulfilled, that it was a
temporary position, that I no longer needed his particular
service and, you know, if the need arises again, I would call
him back again.’’ (Tr. 109.)
When confronted with the hires of new night loaders in
light of his acknowledged promise made to Cordova, Rubino
now turned hostile, exclaiming ‘‘Okay, what’s the question.
Because now we’ll take the gloves off’’ and asked his own
question, ‘‘Am I obligated to call him back?’’ (Tr. 115–116.)
Rubino did not explain this apparent discrepancy in employ-
ment practice. I have previously discredited Rubino and con-
firm that judgment anew in light of his evident hostility and
inability to reconcile his narrative of the circumstances of
Cordova’s rehire and his hire thereafter of new night shift
loaders. Clearly the new hires also undercut the reason—the
necessity for cutbacks—given to Cordova at the time of his
discharge.
I conclude that Respondent’s discharge of Cordova on or
about November 19 violated Section 8(a)(1) and (3) of the
Act. Respondent’s antiunion animus has been shown again
and again on this record. In particular the credited testimony
shows Cordova’s exercise of Section 7 rights, Respondent’s
knowledge of the same and its coupling of Cordova with
Abraham and other night-shift union advocates. Vasaturo and
Rubino came to understand that they could not successfully
buy off or threaten Cordova, and they continued, into the
new year, to harbor vindictive and retaliatory motives toward
his union adherence and associations, only making use of his
labor services when it suited their selfish interests. Adams’
comments to Cordova on the day of his discharge only serve
to confirm Respondent’s unlawful motivation. In the absence
of Cordova’s union activities, it is clear that Respondent
would have continued to employ him.
D. The Alleged Majority Bargaining Demand and
Request for a Bargaining Order
I have previously alluded to the parties’ stipulations of fact
that on or about June 6 and continuing to date the Union re-
quested Respondent to recognize and bargain with it in the
unit of all full-time and regular part-time drivers, drivers’
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The names of four other employees whose ballots, Respondent
agreed, should not be counted, Elio Chillo, Ralph Frascona, Anthony
Scala, and Michael Rubino who I have found are managers and, in
the case of Rubino, also a statutory supervisor, do not appear on Re-
spondent’s January 1 through September 30, 1994 payroll list.
helpers, and warehousemen employed at its Brooklyn facil-
ity, an admittedly appropriate unit, and that since on or about
June 9, Respondent has failed and refused to do so. The un-
ambiguous, single purpose wording on the authorization
cards which were distributed in this case has also been de-
scribed in detail.
By oral amendment granted during the hearing the consoli-
dated complaint now alleges that since on or about June 14,
1994, a majority of the unit employees designated and se-
lected the Union as their representative for the purpose of
collective bargaining with Respondent. The counsel for the
General Counsel produced and offered into evidence, on their
identification by the solicitor or the card signer, and the un-
dersigned received in evidence, in some cases over the objec-
tion of Respondent counsel, having been convinced by the
nature of the solicitation and the authenticity of the signa-
tures that the cards may be used to show the employees’ des-
ignation of the Union as their bargaining representative, au-
thorization cards signed by 21 unit employees between May
23 and June 14, in support of the General Counsel’s com-
plaint allegation. In no instance did Respondent establish that
the solicitations were other than directed to seeking authority
to represent the signers for purposes of collective bargaining.
Cumberland Shoe Corp., 144 NLRB 1268 (1963). Respond-
ent’s objections to the authenticity of certain of the cards be-
cause the solicitor was not present at the signing were re-
jected since the cards themselves were unambiguous on seek-
ing bargaining authorization, the solications were all for the
purpose of representing the employee in bargaining and the
signatures, in one case, even printed, were not attacked as
lacking authenticity.
The bargaining unit on June 14, 1994, consisted of 32 em-
ployees. The total number of employees whose names appear
on the payroll for that week are 35. However, three of those
employees shall be excluded from the unit. Lynton Brandt
was among a group of five employees, including Ellio
Chillo, Anthony Scala, Ralph Frascona, and Michael Rubino
whose ballots Respondent agreed shall not be counted. Thus,
for whatever reason, Respondent agreed Brandt was not a
part of the unit, at least on August 5. There is no evidence
that his job changed between June and August. Abraham tes-
tified after Vasaturo had identified Brandt as holding many
jobs, including loading, office work and going on a truck,
that Brandt was solely an office worker who runs the cus-
tomer bills through the computer, and does no warehouse or
delivery work. I credit this testimony, and conclude that
based on it, as well as Respondent’s stipulation, that Brandt
is excluded form the unit. I have previously determined at
least since May 1 that Joseph Pionel has been a warehouse
supervisor on the day shift who also sometimes supervises
the night and thus he is also excluded from the bargaining
unit. Based on the payroll record of Charles Giraldo, whose
job Vasaturo could not identify, he worked for Respondent
from January 24 to May 31, 1994. He had no earnings listed
beyond the second quarter of 1994. Thus, I find that Giraldo
was not an employee of Respondent at the time of the
Union’s bargaining demand or when it is alleged to have
achieved majority designations and is thereby excluded from
the unit.6
Inasmuch as the Union had designations and authorizations
as bargaining agent from 21 unit employees out of a total
unit complement of 32 on June 14, I conclude that as of that
date, under its continuing bargaining demand, the Union rep-
resented a majority of the unit employees. Even as early as
June 6, the date of its bargaining demand, the Union had a
majority of 17 signed authorization cards in the unit of 32
employees.
The issue remains to be determined as to whether Re-
spondent should be ordered to bargain with the Union as al-
leged by General Counsel in the consolidated complaints. A
necessary predicate to granting such relief is an order setting
aside the election based on meritorious objections filed in the
consolidated representation Case 29–RC–8324. Irving Air
Chute Co., 149 NLRB 627, 630 (1964). I have concluded
that the objections warrant setting aside the election based on
the employer’s egregious unfair labor practices, its prevent-
ing two employees from voting, and addressing a captive au-
dience of employees within 24 hours of the election. Thus,
the election is no impediment to directing a bargaining order.
I conclude that a bargaining order is justified because from
the outset of the Union’s approach to Respondent’s owner
and president Respondent committed unfair labor practices of
such an ‘‘outrageous’’ and ‘‘pervasive’’ nature ‘‘that their
coercive effects cannot be eliminated by the application of
traditional remedies, with the result that a fair and reliable
election cannot be had. NLRB v. S. S. Logan Packing, Co.,
386 F.2d 562, 570 (4th Cir. 1967); see also NLRB v. Heck’s,
Inc., 398 F.2d 337, 338.’’ Quoted with approval in NLRB v.
Gissel Packing, Co., 395 U.S. 575, 614 (1969). From that
first day on June 6, 1994, at least until February 9, 1995, the
pattern of Respondent’s unlawful, intimidating, punitive, and
vindictive reaction to the union organization among its em-
ployees was consistent and pervasive and has been estab-
lished on this record by overwhelming and unanswered evi-
dence. Commencing June 6, and continuing thereafter, Re-
spondent never stopped questioning its employees to confirm
the identity of the suspected union leaders among its night
crew. The blatant and coercive interrogations were accom-
panied by threats of serious and devastating reprisals, includ-
ing the burning of the Brooklyn facility and its transfer to
New Jersey, vows never to recognize the Union, accom-
panied by statements of the futility of selecting the Union
and threats that if the Union became their bargaining agent
a strike would surely follow. Respondent created the impres-
sion of surveillance of their activities by identifying their
‘‘main guy’’ and, as the election date drew closer, sought to
bribe employees by distributing cash increases along with
their paycheck, promising insurance and other work condi-
tion improvements, meanwhile pleading for a second change.
The height of Respondent’s punitive reaction to the employ-
ees’ exercise of their Section 7 rights was the termination of
the night shift and discharge of its full employee complement
because it was a hotbed of union agitation and in the absence
of the ring leader coming forward all shift employees had to
be taught a lesson and made to suffer for the activities of
a few. The evidence supporting this conduct came from the
recorded mouths of the owner and warehouse manager
345VESUVIO FOODS CO.
whose attempts to avoid responsibility and liability bordered
on the ludicrous. Many of the unfair labor practices I have
cited are deemed ‘‘hallmark violations,’’ including threats of
plant closure, discriminatory discharges and layoffs, and are
more likely to destroy election conditions for a longer period
of time than other unfair labor practices, and almost all were
committed by the two individuals at the top of management
hierarchy, including its owner and president. The Board, with
a similar record before it, had no hesitancy in issuing a cat-
egory 1 bargaining order. Eddyleon Chocolate Co., supra,
301 NLRB at 891, and cases cited at fns. 24 through 27.
Even if the conduct I have described is deemed less ex-
traordinary, it is particularly appropriate to order Respondent
to bargain inasmuch as the unfair labor practices I have de-
scribed show ‘‘a tendency to undermine the Union’s majority
strength and impede the election process,’’ Gissel at 614 and,
accordingly, they fall within the second category of cases in
which such a remedy is appropriate.
For the latter category of cases, the Supreme Court in
Gissel approved the Board’s weighing the extensiveness of
Respondent’s unfair labor practices in terms of their past ef-
fect on election conditions and the likelihood of their recur-
rence in the future. When Vasaturo announced that he was
aware of the prohibition against speeches within 24 hours of
the election (under the Peerless Plywood rule) yet was none-
theless going to violate it and present again his coercive mes-
sage the evening before the election, and then proceeded to
expressly violate the rule with impunity, going so far as to
repeat his unlawful promises, threat to burn the facility and
stress the inevitability of strikes if the Union was successful
the next day, not only did Vasaturo demonstrate a continued,
pervasive and unrelenting attack on legality to the very eve
of the election, but, of equal moment, he demonstrated that
Respondent could not be trusted to respect limits on its con-
duct or to avoid similar unlawful conduct in the future. That
Respondent continues to have no desire or reason to respect
the Board’s election procedures is most evident in its post-
election transfer and ultimate discharge of the employee
union leader and later 1995 discharge of a cohort who dem-
onstrated continued adherence to the Union. Vasaturo and
Respondent were not going to let the Board processes deter-
mine the status of the Union as bargaining agent; the union
leadership in the work force still had to be eradicated and
removed regardless of the consequences. With an employer
who engages in such conduct the possibility of erasing the
effects of its past practices and of ensuring a fair election (or
a fair rerun) by the use of traditional remedies, though
present, is slight and employee sentiment once expressed
through cards, would, on balance be better protected by a
bargaining order. Gissel, supra; Great Atlantic & Pacific Tea
Co., 230 NLRB 766 (1977). Because of its continued post-
election unfair labor practices, Respondent cannot be heard
to claim that the passage of time could warrant withholding
a bargaining order. See Hedstrom Co. v. NLRB, 629 F.2d
305 (3d Cir. 1980). Such a bargaining order shall be dated
as of June 6, 1994, the date on which Respondent ‘‘em-
barked on a clear course of unlawful conduct.’’ Trading
Post, 219 NLRB 298, 301 (1975).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time drivers, drivers’ help-
ers and warehousemen employed by Respondent at its 722
64th Street, Brooklyn, New York location, excluding all of-
fice clericals, guards, and supervisors as defined in Section
2(11) of the Act constitute a unit appropriate for the purposes
of collective-bargaining within the meaning of Section 9(b)
of the Act.
4. Beginning on June 6, 1994, the Union represented a
majority of the employees in the above-described appropriate
unit, and has been, and is, the exclusive representative of all
said employees for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. By refusing to recognize and bargain collectively with
the Union with respect to the employees in the appropriate
unit on and after June 6, 1994, the Respondent has engaged
in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
6. By granting cash payments to it employees in order to
induce them to vote againt the Union in a Board election and
to abandon their membership in and support of the Union,
and eliminating its night shift and discharging its employees
Henry Abraham, Eli Samuel Abraham, Daniel Cordova, Luis
Ruiz, Eddie Diaz, Nelson Hernandez, Edwardo Quintana,
Chris Ortiz, and David Concepcion from on or about June
13, 1994, until on or about June 27, 1994, and by subse-
quently transferring from the night shift to the day shift and
then discharging Henry Abraham and by discharging Daniel
Cordova, because they joined and supported the Union and
in order to discourage employees from engaging in such ac-
tivities, and because Henry Abraham gave testimony to the
Board and filed a charge with the Board in Case 29–CA–
18619, Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) of the Act.
7. By interrogating its employees about their membership
in, activities on behalf of, and sympathies for the Union, by
threatening to discharge its employees, eliminate its night
shift, burn down its Brooklyn facility and move its oper-
ations to New Jersey, impose stricter working conditions,
that a strike was inevitable, and with other, unspecified re-
prisals if its employees selected the Union as their bargaining
representative in a Board election, by creating the impression
among its employees that their meetings and union activities
were under surveillance, by soliciting complaints and griev-
ances from its employees and promising them straight salary,
rather than an hourly wage, to rehire laid-off employees, im-
proved medical benefits, pay increases, better equipment, rec-
ognition of a night-shift employee to negotiate on their be-
half, and promising and granting assistance in obtaining other
employment and other unspecified benefits in order to induce
them to abandon their union support and vote against the
Union, and by informing its employees that it would be futile
for them to choose the Union as their bargaining representa-
tive, Respondent has been interfering with, restraining, and
coercing, employees in the exercise of the rights guaranteed
in Section 7 of the Act and Respondent thereby has engaged
in, and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Under New Horizons, interest is computed at the ‘‘short term’’
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Inasmuch as I have recommended that the election be set
aside and I have determined that a bargaining order is appro-
priate, I shall recommend that the Respondent be ordered to
bargain with the Union in the appropriate unit, effective as
of June 6, 1994. Having also found that the Respondent un-
lawfully laid off its night crew for a 2-week period, and then
unlawfully transferred and discharged employee Henry Abra-
ham and unlawfully discharged employee Daniel Cordova, I
shall recommend that Respondent offer Henry Abraham rein-
statement to his former position on the night shift and offer
reinstatement to Daniel Cordova to his former position or, if
those positions are no longer available, to substantially
equivalent positions, without prejudice to their seniority and
other rights and privileges, and make them whole, and make
whole all of the employees on the night shift who were laid
off on June 13, 1994, including Abraham, Cordova, all other
employees named in Conclusion of Law 6, and any other
employees so assigned who may not have been previously
named or identified in the proceeding. All of these employ-
ees shall be made whole for any loss of earnings and other
benefits they may have suffered as a result of Resondent’s
unlawful discrimination against them. Such amounts shall be
computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and shall be reduced by net interim
earnings, with interest thereon computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).7 I
shall also recommend that Respondent expunge from its files
any references to Abraham’s transfer and discharge and Cor-
dova’s discharge and notify them in writing that this has
been done and that the transfer and discharges will not be
used against them in any way.
[Recommended Order omitted from publication.]