Wilmington Fabricators

National Labor Relations Board - Board Decisions

Sep 15, 2000

332 N.L.R.B. 57 (N.L.R.B. 2000)

WILMINGTON FABRICATORS, INC. 57
Wilmington Fabricators, Inc., Debtor-in-Possession
and Teamsters Local 829, a/w International
Brotherhood of Teamsters and Rodney Val-
ladares

Wilmington Fabricators, Inc., Debtor-in-Possession
and Rodney Valladares and Teamsters Local
829, a/w International Brotherhood of Team-
sters. Cases 1–CA–30434, 1–CA–31010, 1–CA–
32169, and 1–CA–32170
September 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On March 7, 1997, Administrative Law Judge Richard
H. Beddow Jr. issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the Respondent filed a brief in
response to the General Counsel’s exceptions.1
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 decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.3
1. The Respondent excepts to the judge’s finding that
it violated Section 8(a)(3) and (1) of the Act when it dis-
charged employee Danilo Guzman in August 1993. The
Respondent contends that the General Counsel failed to
prove that it knew that Guzman supported the Union or
that it was motivated by union animus when it dis-
charged Guzman. We find no merit in the Respondent’s
exception.

1 The General Counsel filed a motion to strike the Respondent’s an-
swering brief, styled as “Respondent’s Reply Brief To Union’s Excep-
tions and Brief to the Decision of the Administrative Law Judge,”
because it did not comply with the requirements of Sec. 102.46(d)(1)
and (2) of the Board’s Rules and Regulations. Those sections require
that an answering brief be limited to issues raised in the opposing
party’s exceptions. In this case, the Union did not file any exceptions
and those filed by the General Counsel pertain only to apparently inad-
vertent technical omissions in the judge’s notice to employees. The
Respondent’s answering brief, by contrast, addresses the substantive
issues of timeliness, waiver, failure to recall employees from layoff,
and failure to bargain. Thus, in view of the fact that the Respondent’s
answering brief is not limited to issues raised in any opposing party’s
exceptions, we shall grant the General Counsel’s motion.
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
3 We find merit in the General Counsel's exceptions regarding the
proposed notice to employees and shall correct the judge’s omissions in
the notice and amend his recommended Order to include the corrected
notice.
It is apparent from the record that, as the judge found,
the Respondent’s Hispanic employees were the driving
force behind the Union’s organizing effort in the spring
of 1992.4 The Union initially was contacted by Hispanic
employees, two preelection meetings were held at the
homes of Hispanic employees and attended only by His-
panic employees, and the Union won the election by the
precise number of Hispanic employees as are in the Re-
spondent’s work force. Moreover, soon after the elec-
tion, the Union’s business agent, Arthur Lazazzaro, met
with Hispanic employees on two occasions, once in the
Respondent’s facility with a few employees, and then
with a larger group of Hispanic employees in the Re-
spondent’s parking lot after he was refused entry to the
facility. On each occasion, Lazazzaro’s interaction with
the Hispanic employees was observed by Supervisor
Wally French. Similarly, on June 30, 1992, employees
elected an Hispanic employee, Felipe Collazo, to be their
union steward.
The Respondent contends that these facts do not evi-
dence its knowledge that its Hispanic employees as a
group supported the Union. We disagree. Although
each of these facts, in isolation, may not independently
demonstrate that the Respondent knew its Hispanic em-
ployees were union supporters, taken together they sup-
port the judge’s finding. Further, if the Respondent had
any doubt as to the union sentiments of its Hispanic em-
ployees before the election, that doubt was dispelled by
events which occurred after the election. Soon after the
election, Hispanic employees complained to their super-
visors that they were being denied overtime because of
their support of the Union. Moreover, these allegations
were repeated in charges filed by Collazo and the Union
with the Board, which were resolved pursuant to a set-
tlement in February 1993 of pending Board complaints
on these allegations. In October 1993, six Hispanic em-
ployees filed a charge alleging that the Respondent laid
off Hispanic employees in September 1993 because of
their support for the Union.5 Given that the Respon-
4 The Union filed a petition to represent the production and mainte-
nance employees at the Respondent’s Wilmington, Massachusetts
facility, at which it manufactures metal office furniture and partitions,
on April 10, 1992. Following a Stipulated Election Agreement, an
election was conducted June 11, 1992. The Union won the election by
a vote of 17 to 11, out of a total of 28 eligible voters.
5 The Regional Director issued a complaint in Case 1–CA–31010 al-
leging that the layoff and refusal to recall Aquiles Cabrera and the
refusal to recall Estervina Sanchez violated Sec. 8(a)(3) and (1). The
Respondent settled the complaint as to Cabrera, and he returned to
work on January 10, 1994. The Respondent’s failure to recall Sanchez
is the subject of this proceeding.
332 NLRB No. 2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
dent’s Hispanic employees began complaining shortly
after the election about the Respondent’s treatment of
them in connection with their support for the Union, it is
clear that the judge was correct in finding that, as of the
date of the unfair labor practices at issue here, the Re-
spondent knew that its Hispanic work force was closely
aligned with the Union.
We also agree with the judge that the Respondent
knew or believed that Guzman was a union supporter and
that his discharge was motivated by the Respondent’s
union animus. Guzman was injured in an automobile
accident on June 21, 1994, while riding in the same vehi-
cle with Union Steward Collazo and Aquiles Cabrera,
who was the subject of an unfair labor practice complaint
issued January 6, 1994. Collazo and Cabrera, who had
also been injured in the accident, were permitted to re-
turn to work on July 25. Guzman attempted to return to
work 1 week later, and was informed that he had been
discharged for violating an unpublished rule about absen-
teeism.
The Respondent displayed its union animus during the
organizing campaign when its president, Paul Winchell,
told employees that he would oppose the Union with all
his strength; that a union was the worst thing that could
happen to a company; and that employees would be
without work and lose their jobs.6 This animus, the Re-
spondent’s knowledge that its Hispanic employees sup-
ported the Union, Guzman’s close association with
known union supporters, and the judge’s findings con-
cerning the circumstances surrounding the Respondent’s
claim that Guzman had violated an absenteeism rule sup-
port a finding that the Respondent’s refusal to permit
Guzman to return to work after the automobile accident
was motivated at least in part by the Respondent’s union
animus and its desire to eliminate yet another Hispanic
employee from its work force. See Armstrong Rubber
Co., 283 NLRB 625, 635–637 (1987) (discharge unlaw-
ful if motivated by employer’s belief that discriminatee
was union supporter). See also PJAX, 307 NLRB 1201,
1204 (1992).
We are not persuaded by the Respondent’s argument
that the fact that it permitted Collazo and Cabrera to re-
turn to work following the automobile accident demon-
strates that union animus was not a factor in its decision
not to allow Guzman to return. On the contrary,

6 Winchell’s remarks occurred more than 6 months prior to the filing
of the first unfair labor practice charge and were not alleged in the
complaint as an unfair labor practice. Nevertheless, this background
evidence, which the Respondent does not factually dispute, may be
used to establish the Respondent's union animus. See Oklahoma Fix-
ture Co., 314 NLRB 958, 959 fn. 3 (1994), enf. denied on other
grounds 79 F.3d 1030 (10th Cir. 1996).
Winchell admitted that, as to Collazo, who was the Un-
ion’s steward, it had earlier feared “trouble” from him
and for that reason did not lay him off in September
1993, when other employees were laid off from work. It
is likely that the Respondent feared similar trouble if it
did not permit Collazo, who remained at that time the
union steward, to return to work after the accident. Simi-
larly, Cabrera already had been the subject of an unfair
labor practice complaint, which the Respondent settled
earlier that year by returning him to work from layoff.
Thus, of the three, Guzman was the only Hispanic em-
ployee who had not demonstrated that he would pose a
risk of legal trouble for the Respondent if discharged.
Accordingly, we agree with the judge that the General
Counsel has proved that the Respondent was motivated
by union animus when it discharged Danilo Guzman in
August 1994; and, as explained in the judge’s decision,
the Respondent has not demonstrated that it would have
discharged Guzman even absent his union activity.
Wright Line, 251 NLRB 1083 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1992), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
2. We also reject the Respondent’s contention that the
allegations concerning the Respondent’s failure to recall
laid off employees, made as an amendment to the
charges in Cases 1–CA–32169 and 1–CA–32170, are
time-barred under Section 10(b) because the amendment
was made in April 1996. The original charge in Case 1–
CA–32169, filed October 3, 1994, alleged that the Re-
spondent violated Section 8(a)(3) and (1) when it dis-
charged Guzman. The original charge in Case 1–CA–
32170, filed the same date, alleged that the Respondent
violated Section 8(a)(5), (3), and (1) by subcontracting
unit work. Under established “relation back” rules, a
later filed charge will be not be deemed barred under
Section 10(b) if it is “closely related” to a timely filed
charge. Redd-I, Inc., 290 NLRB 1115 (1988). Accord:
Nickles Bakery of Indiana, 296 NLRB 927 (1989). The
Respondent contends that the amendments are not
closely related to the allegations in the original charges.
We disagree.
The gravamen of the original charge in Case 1–CA–
32170 is that the Respondent was engaging in subcon-
tracting without bargaining with the Union and with the
unlawful motive of diverting work from its Hispanic em-
ployees in retaliation for their support for the Union.7
7 The charge reads:
On a date presently unknown within the past six months, the Em-
ployer has subcontracted bargaining unit work without notifying
Teamsters Local 829, the certified bargaining agent; without bargain-
WILMINGTON FABRICATORS, INC. 59
The April 1996 amendment, likewise, alleges that the
Respondent failed to recall laid-off Hispanic employees
for the purpose of diminishing their number in the bar-
gaining unit because they supported the Union.8 Both
the original charge and the amendment are based on the
legal theory that the Respondent is diverting work from
employees who had supported the Union, which in each
instance directly affected the availability of work for
laid-off employees.9 Moreover, the original charge and
the amendment involve similar factual circumstances and
sequence of events—that the Respondent employed a
number of Hispanic employees in its work force; that
those employees sought representation and supported the
Union in the election; and that in retaliation for their
support for the Union, the Respondent laid off and re-
fused to recall Hispanic employees, and hired non-
Hispanic employees in their place. Finally, both the
charge and the amendments involve similar defenses—
that the Respondent was motivated by legitimate reasons,
and not union animus, in making job assignments and
employment decisions. Applying the test of Redd-I,
supra, we find, therefore, that the amendments to Case 1–
CA–32170 are closely related to the original charge and
are therefore timely.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wil-
mington Fabricators, Inc., Wilmington, Massachusetts,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order, except that the attached no-
tice is substituted for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

ing with that Union concerning either the decision or its effects; and in
retaliation for the Union activity of its employees.
8 The amended charge in Case 1–CA–32170 reads, in pertinent part:
In or about September 1994, and continuing, the above named em-
ployer, unilaterally and without bargaining with the union, refused to
recall unit employees and, at the same time, hired new employees. In
or about September 1994, and continuing, the above named employer
refused to recall laid off employees because [sic] those employees had
engaged in union activities.
9 In particular, we note that the evidence in this proceeding shows
that the unit work which had been subcontracted to the wife of one of
the Respondent's supervisors, and which was performed at her home,
was work of the type previously performed by employee Estervina
Sanchez, who was at the time on layoff status. See also fn. 11, below.
10 The April 1996 amendments also closely track the allegations in
Case 1–CA–31010, filed October 1993, which alleged that the Respon-
dent’s failure to recall Estervina Sanchez from layoff, while at the same
time subcontracting her work to the wife of a supervisor, violated Sec.
8(a)(3) and (1). See NLRB v. Fant Milling Co., 360 U.S. 301 (1959).
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discriminatorily terminate employees
because they engage in union or other protected con-
certed activities.
WE WILL NOT fail and refuse to recall laid-off em-
ployees because they engage in union or other protected
concerted activities.
WE WILL NOT fail and refuse to bargain collectively
regarding wages, hours, and other terms and conditions
of employment with Teamsters Local 829, a/w Interna-
tional Brotherhood of Teamsters, the Union, as the ex-
clusive representative of our employees in the appropri-
ate unit set forth below concerning the recall of laid off
unit employees. The appropriate unit is:

All full time and regular part time warehousemen,
shippers, receivers, machine operators, welders and
painters, but excluding all office clerical employees,
guards, and supervisors as defined in the Act.

WE WILL NOT discriminatorily fail to notify the Un-
ion of any changed plans concerning the recall of laid-off
unit employees.
WE WILL NOT in any like or related 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 the Board’s
Order, offer Danilo Guzman full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, recall from layoff Estervina Sanchez and all other
employees laid off in September 1993 who were also
discriminatorily denied recall, without prejudice to their
seniority or any other rights or privileges they previously
enjoyed.
WE WILL make Danilo Guzman, Estervina Sanchez,
and all other employees who were discriminatorily de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
nied recall whole for the loss of earnings and other bene-
fits resulting from the discrimination against them, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Danilo Guzman, and WE WILL, within
3 days thereafter, notify him in writing that this has been
done ant that the discharge will not be used against him
in any way.
WE WILL bargain in good faith with the Union as the
exclusive collective-bargaining representative of all em-
ployees in the appropriate unit set forth above with re-
spect to the terms and conditions of recalling laid-off unit
employees.

WILMINGTON FABRICATORS, INC.

Thomas J. Morrison, Esq., for the General Counsel.
Philip G. Boyle and Nereyda F. Garcia, Esqs., of Boston, Mas-
sachusetts, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, Administrative Law Judge. This
matter was heard at Boston, Massachusetts, on October 3, 1994,
and September 30, and October 1 and 2, 1996. The proceeding
is based upon an initial charge filed July 30, 1993, by Interna-
tional Brotherhood of Teamsters Local Union No. 829, AFL–
CIO (the Union or Local 829) against Wilmington Fabricators,
Inc. of Wilmington, Massachusetts. The Regional Director’s
consolidated complaint dated April 30, 1996, alleges that Re-
spondent violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act) by threatening to deny employ-
ees overtime, by denying Felipe Collazo the opportunity to
work overtime, by failing and refusing to recall Estervina San-
chez from layoff, by discharging Danilo A. Guzman from em-
ployment, and by failing to notify the Union of its intentions
and failing and refusing to recall laid-off employees, because of
their union or other protected concerted activities.
Upon a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture, distribution, and
sale of fabricated metal work stations and related metal furni-
ture and fixtures. It annually ships goods valued in excess of
$50,000 from its Wilmington location to points outside Massa-
chusetts and it annually purchases and receives goods and ma-
terials valued in excess of $50,000 directly from points outside
Massachusetts. It admits that at all times material, is and has
been an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act. It
also admits that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent has been owned by Paul Winchell and his
family since 1969. It has experienced periods of success and
growth but also suffered major setbacks. The Company has
changed course, reduced or redirected its operations, as needed,
and survived a bankruptcy from which it was discharged in
November 1993.
On two separate occasions before 1990, it laid off a signifi-
cant portion of its workforce. The first layoff was in 1985, and
approximately one-half of its 70 employees were laid off when
it began to fabricate another product line that required employ-
ees with different skill sets. In 1989, 4 out of the remaining 25
to 30 employees were laid off and not recalled after a crucial
machine brokedown.
In the spring of 1990, the Bank of New England called a note
and froze all the funds in a company account that was not des-
ignated a payroll account and Winchell met the payroll from his
personal funds, which effectively wiped out his savings and, as
he believed he could not meet future payrolls, the Company
laid off 12 out of approximately 25 employees, only 3 of whom
were later recalled.
In early 1992, Louis Coiro was the supervisor of fabrication
and Wally French was the supervisor of final assembly. Re-
spondent employed about 30 employees, of whom 19 were
Hispanic employees. At that same time employees Danilo
Guzman and Rodney Valladares began to speak about the need
for a union among themselves and with other employees, in-
cluding Sergio Almonte and Teofilio Vidale Morales. In
March, Valladares called the Union and spoke with Dan
McLaughlin, the secretary-treasurer, and as a result of this call,
Arthur Lazazzero, a union business agent since January 1992,
met with some of the Wilmington employees. The meeting
took place in late March or early April 1992 at the Valladares
home and approximately 15 hispanic employees attended.
The second meeting took place prior to April 10 at the home
of Sergio Almonte and was attended by about 17 employees,
again all of them were Hispanic. Employees signed union au-
thorization cards or took blank union authorization cards back
to Respondent’s facility. Thereafter, the Union filed a
representation petition on April 10, 1992, and the parties signed
a Stipulated Election Agreement on April 24, 1992. After the
petition was filed, and before the election, Respondent engaged
in a vigorous antiunion campaign which included antiunion
literature and meetings with employees in which Winchell said,
among other things, that he would oppose the Teamsters with
all the strength that he had, that a union was the worst thing that
could happen to a company, and that employees would be
without work and lose their jobs.
An election was held on June 11. Of about 28 eligible vot-
ers, 17 votes were for the Union and 11 votes against. On June
22, 1992, the Union was certified as the representative of Wil-
mington employees.
After the election, and continuing through September 1992,
Respondent hired several new, non-Hispanic employees includ-
ing Chris Sullivan and James Pitman on June 15, Henry Ba-
growski on July 9, Mike DiRocco on July 15, Eugene Smith on
July 22, Robert Silva and Alex Caporizzo on August 25, and
Laura Michalski on September 8.
WILMINGTON FABRICATORS, INC. 61
After the election, Union Agent Lazazzero visited Respon-
dent’s facility with a notice to post about a union meeting and
spoke with Supervisor French. French accompanied him to the
timeclock area where Lazazzero spoke with about five employ-
ees, all of whom were Hispanic. Later, when Lazazzero re-
turned Respondent’s facility, he was met by French and told
that he could not come onto the property. French said that
Winchell had been upset over the fact that he had been allowed
into the plant earlier. Lazazzero then met with about 15 His-
panic employees off the property but in the immediate area of
the facility, while French watched. On June 30, Felipe Collazo
was made union steward and he thereafter distributed union
dues and membership cards at Respondent’s facility. He spoke
with French about giving the documents out and was told that
he could do it during breaks.
Employee Almonte testified that immediately after the elec-
tion, he questioned Supervisor Coiro about why the Respondent
had taken away his right to work overtime and that Coiro told
him that Winchell had said that Almonte, Collazo, and others
would not work anymore overtime because they had brought
the Union in. Aquiles Cabrera also testified that he approached
Coiro and asked about working overtime and Coiro said that
those that had voted for the Union would not get overtime.
Collazo testified that between June 30, 1992, when he was
made steward, and July 16, 1992, when he was out of work
because of an on the job injury, he asked Coiro about overtime
and was told that nobody was working overtime. He also said
that as steward, he attended one negotiating session in July
1993 where one of the issues raised concerned the pay rate of
Estervina Sanchez. After the election, Sanchez had told Union
Agent Lazazzero that she thought she was being treated un-
fairly. Sanchez had been employed by Respondent since Janu-
ary 1987, as an electrical assembler and was paid $6.75 per
hour. Paul LeMay had been employed since March 1992 in
same classification but was paid $8.50 per hour. When
Lazazzero brought the subject up at negotiation the Company
explained that although Sanchez and LeMay did the same
work, LeMay handled heavier products.
In February 1993, the Respondent settled a number of com-
plaints before the Board. The complaint were based on unfair
labor practice charges filed by, among others, the Union and
Collazo and involved, in part, an allegation concerning the
assignment of overtime and the settlement included a backpay
remedy of approximately $35,000.
In March 1993, Almonte again approached Supervisor Coiro
and asked him why he no longer worked overtime and Coiro
told him that they could not work overtime because of
Winchell’s instructions. Morales and Collazo confirmed that
Almonte immediately told them what Coiro had said. After
Coiro’s statement, Collazo did not receive any overtime, al-
though some other employees did. Specifically, between Janu-
ary and September 1993, Pat Ferullo (who had a welding job
classification) worked about 190 hours of overtime. Collazo
had returned from a work-related injury in December 1992 and
was on light duty through February 1993, when he was able to
return to his regular duties. At the time, Collazo was primarily
a welder; however, he assertedly was capable of performing
most, if not all, of the job functions at Respondent’s facility.
In June and August 1993, the Respondent failed to get major
contracts that it had expected and as a result, it decided to lay
off employees. It determined that it would keep those employ-
ees who had been cross trained and had multiple skills and it
planned to retain both Collazo and Ferullo, having them split
the welding functions even though there was not enough weld-
ing work for two. Ferullo immediately quit, however, leaving
Collazo to work full time.
By letter dated September 13, 1993, the Respondent in-
formed the Union that it was laying off employees effective
September 15. The letter indicated that the layoff would extend
through the week and that about 20 employees could expect a
3-day layoff during the next 3 weeks. It specifically identified
five employees that would not be laid off, it including Collazo.
Winchell testified that Collazo was not laid off because Re-
spondent did not want any trouble from him. The letter, which
was delivered to Lazazzero, also stated that the bargaining unit
employees would be recalled. Lazazzero testified that he did
not call the Employer because he understood that the layoff
would be temporary. Although Winchell said he anticipated
that the layoff was going to be short term, many employees
were not recalled and the Respondent did not notify the Union
that the layoff would be extended indefinitely. Among those
laid off were new employees Larry Copans, Laura Michelski,
and Dick Kenneally, however, within a matter of weeks, they
were recalled. Otherwise, the Union did not respond to the
layoff notification and it never requested to bargain about the
matter.
Alexander Caporizzo and Estervina Sanchez, both light as-
semblers, were laid off. Caporizzo was a part-time employee
who had less seniority than Sanchez (he was not an employee at
the time of the election in June 1992) and Sanchez had trained
Caporizzo. In October 1993, Caporizzo was recalled. Winchell
stated that Caporizzo was recalled to do light housing assembly
because there was only enough work for a part timer and that
Sanchez was not recalled because she could not work in the
light assembly area because of the weight and bulk of the prod-
ucts being manufactured. He also said that Sanchez would
have cost the Employer more because of health insurance.
During the investigation of the charge in Case 1–CA–31010,
Winchell gave a sworn affidavit in which he stated that Super-
visor William Dorris was building light assembly work at
home. In his testimony, however, Winchell said that William
Dorris was not performing light assembly work at home but
was taking them home where his wife performed the work.
Winchell also said that even considering this work, there would
not have been enough work for Sanchez. Theresa Dorris con-
tinued performing light assembly work, the type work primarily
done by Sanchez, through at least April 1996.
Guzman was employed by the Employer from about June 6,
1988, until his discharge on about August 1, 1994. He was
capable of doing most of the jobs in the Employer’s facility,
had developed multiple skills, and was not laid off in Septem-
ber 1993 because of these factors. He also worked extensive
overtime. On June 21, 1994, employees Guzman, Cabrera, and
Collazo were in an automobile accident. After the accident, all
of them went to Lawrence General Hospital. While Collazo
and Cabrera worked the next day, Guzman did not. Guzman
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62
went to the hospital, had various tests done, and saw a chiro-
practor. The next day, however, both Collazo and Cabrera left
work because they did not feel well. On June 23, Guzman and
his daughter went to the Employer’s facility and Guzman’s
daughter gave a note from the chiropractor to the Employer.
The note stated that Guzman was being treated for an injury
and could not return to work. With some small variation, Col-
lazo and Cabrera did the same thing. Each of them received a
note from the Company, dated June 23, which stated that before
they could return to work they needed a note from their physi-
cian stating that they could do their job. By letter dated June
28, the Company contacted Guzman’s chiropractor, stating that
Guzman would need a note before he could return to work.
Neither the June 23 note to Guzman nor the June 28 letter from
the Employer to the chiropractor said anything about contacting
the Company periodically to report his status but Guzman saw
his chiropractor weekly and, weekly sent information about his
physical status to the Employer. Guzman also told Cabrera that
he was sending these reports to the Respondent.
On July 25, Cabrera and Collazo returned to work. On Au-
gust 1, 1 week later, Guzman, received medical clearance to
return to work and attempted to return. He testified that he
gave his clearance note to Supervisor Coiro, but Coiro told him
that there was no work for him and, according to Guzman,
“brushed him off.” Guzman attempted to involve Collazo and
have him intervene with Coiro, but Coiro ignored these at-
tempts.
Cabrera had been recalled on January 10, 1994. Thereafter,
Respondent did not recall any of the other employees who had
been laid off in September 1993, however, hiring of new em-
ployees began when it hired Sean Riddell in September 1994,
Ian Batchelder in October 1994, and Michael May and Mark
Celata in November 1994, as regular full-time employees.
None of these four individuals had been employed by Respon-
dent prior to their hire in late 1994 and the Respondent did not
notify the Union of its actions.
III. DISCUSSION
These proceedings arose after a contested election was con-
ducted and the Union won certification as the exclusive collec-
tive-bargaining representative of a unit of Respondent’s em-
ployees on June 22, 1992. A review of the circumstances at the
time of the election in June clearly establishes Respondent’s
knowledge of employee union activity and antiunion animus.
At the time of the election, there were 30 employees in the unit,
of whom 19 were Hispanic and 11 were non-Hispanic. Prior to
the election, the Union held a number of organizing meetings
that were attended by only Hispanic employees and the Re-
spondent was aware of the union activity prior the second orga-
nizing meeting being held and well before the representation
petition was filed. Respondent immediately began a campaign
designed to frustrate and defeat the Union. After the election,
the union representative met with Hispanic employees at Re-
spondent’s facility and was observed by Respondent. The
number of votes cast against the Union in the election was iden-
tical to the number of non-Hispanic employees employed at the
time of the election, the hires made after the election were non-
Hispanic, and under these circumstances, I agree with the Gen-
eral Counsel’s contention that these facts support the inference
that Respondent concluded that the employees that supported
the Union were Hispanic.
The Respondent and the Union engaged in limited bargain-
ing negotiations but did not succeed in reaching any agreement.
Otherwise, the Respondent’s antiunion animosity did generate
conduct which resulted in a number of changes of alleged un-
fair labor practices that substantially were resolved by a settle-
ment agreement, however, several other complaint allegations
survived and are the subject of this proceeding. These issues
concern threats and denial of overtime opportunities, failure to
recall one employee from layoff the discharge of one employee,
and a general failure to recall laid-off employees. Otherwise,
as pointed out by the Respondent, the Union did not seek to
bargain about the layoffs and recall. Moreover, Collazo, the
union steward, testified that he communicated with Lazazzero
approximately three times per month from the time of the lay-
off until early 1994, and during that time period, Collazo told
Lazazzero about the hiring of temporary and subcontract em-
ployees, including Teresa Dorris. Collazo, as steward, never
requested bargaining on any matter connected to the layoff or
to the recall of laid-off employees. Sometime after January
1994, Lazazzero and Collazo stopped speaking and it appears
that Lazazzero and the Union simply gave up making any ef-
forts for the bargaining unit.
A. The Overtime Issues
Employees Almonte and Cabrera both testified that in 1992,
shortly after the election, Supervisor Coiro said to them that
those who had voted for or brought in the Union would not get
overtime. Coiro, on the other hand, gave credible testimony
that he had surgery and was not at the Company between mid-
June and mid-August and I credit his denial of his participation
in any conversation in which he made the alleged remarks. He
also denied making any similar statement to Almonte in March
1993 and further explained that he does not speak more than a
few words of Spanish, that Almonte and Cabrera probably un-
derstand only 20 percent of what he says in English and that he
communicates with them by showing them what he wants or by
having Collazo act as a translator. When Almonte testified
about the March 1993 conversation he said only that Coiro said
they could not work overtime because of Winchell’s instruc-
tions and responded, “[N]o” to the General Counsel’s question
of what if Coiro said, “[W]hat you should do if you didn’t like
no overtime?” He then changed his answer to yes after review-
ing his affidavit.
Almonte said he understood (spoken) English “but not very
much,” but could read English a lot. He also said he under-
stood what Coiro said in English about overtime. Under these
circumstances, it is not clearly established that Almonte cor-
rectly understood all of what Coiro might have said and I find
credible only that in March 1993 Coiro said the employees
could not work overtime because of Winchell’s instructions and
I find no direct credible testimony that Coiro said anything in
March 1993 about union involvement as it related to the over-
time situation. Accordingly, I find that the General Counsel
has failed to show a violation of Section 8(a)(1) in this respect
as alleged in the complaint.
WILMINGTON FABRICATORS, INC. 63
Although the record shows that Collazo became union stew-
ard, it otherwise shows that the Respondent specifically
avoided selecting him for layoff for that same reason and I find
no credible reason to indicate that he was denied overtime be-
cause of his status. There is no credible evidence that Coiro
made any statement linking Collazo to a denial of overtime.
Otherwise, the Respondent’s records and Winchell’s testimony
show that there had been a generally companywide reduction in
overtime at the time Collazo returned to work in February on
light duty from an injury that caused several months absence
from work. The evidence shows that morning overtime was cut
entirely, other overtime was reduced, and the use of overtime
was limited to certain job categories such as press brake (a
metal forming machine), paint line, and final assembly. Al-
though Pat Ferullo (classified as a welder, as was Collazo) did
work overtime in 1993, he worked this overtime in the press
brake area, not welding, and I find that the Respondent has
shown that it had legitimate business reasons for reducing over-
time and for selecting Ferullo, not Collazo for some of the lim-
ited overtime. I find that the nonselection of Collazo for over-
time would have occurred in this manner regardless of Collazo
position as union steward or the Union’s certification as bar-
gaining representative based on the support of its Hispanic
employees, see the Wright Line analysis, infra, and I conclude
that no violation of Section 8(a)(1) and (3) is shown as alleged.
B. Discharge of Danilo Guzman
In proceedings involving changes in conditions of employ-
ment and disciplinary action against employees, applicable law
requires that the General Counsel meet an initial burden of
presenting sufficient evidence to support an inference that the
employees union or other protected concerted activities were a
motivating factor in the employer’s decision to change their
conditions of employment or to discipline them. Here, the
record shows that the Respondent was aware of the employees’
union activity. The credible evidence also supports an infer-
ence that it was aware that the Hispanic employees had at-
tended union meetings and that all were supporters of the Un-
ion. The Respondent also engaged in a strong antiunion elec-
tion campaign and engaged in other conduct, most specifically
the unrebutted statement by Supervisor French to Union Repre-
sentative Lazazzero after the Union was certified that Lazazz-
ero could not come on the property and that owner Winchell
was upset that French had allowed it earlier, which clearly
shows union animus attributable to the company owner.
As noted by the Court in Town & Country Electric v. NLRB,
106 F.3d 816 (8th Cir. 1997)—an ALJ may properly use an
employer’s attitudes about unions as one factor in evaluating
the credibility of the employer’s witnesses and drawing infer-
ences regarding the employer’s motive. See York Products,
881 F.2d 542; Ballou Brick Co. v. NLRB, 798 F.2d 339, 342
(8th Cir. 1986); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 75
(8th Cir. 1969).
Under these circumstances, I draw such an inference and
find that the General Counsel has met his initial burden by pre-
senting a prima facie showing sufficient to support an inference
that the employees’ union activities were a motivating factor in
Respondent’s subsequent decision to not recall laid-off em-
ployees and to terminate Guzman. Accordingly, the testimony
will be discussed and the record evaluated in keeping with the
criteria set forth in Wright Line, 251 NLRB 1083 (1980), see
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), to consider Respondent’s defense and whether the Gen-
eral Counsel has carried his overall burden.
As pointed out by the Court, in Transportation Management
Corp., supra:

an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected concerted activity.

Here, the record shows that Guzman was a valued and long-
term employee, however, he was one of the initiators of the
effort that brought in the Union and he attended union meetings
and voted in the election. After being injured in the same car
with Union Steward Collazo and Cabrera in an automobile
accident on June 21, Guzman initially notified Respondent
about his condition on June 23 and thereafter informed the
Employer about his status. When he was medically cleared to
return to work on August 1 he got his paperwork, returned to
Respondent’s facility and was refused employment.
The Employer claims that Guzman was terminated because
he violated an unwritten rule concerning absenteeism. Guzman
was not aware of any such rule and it is clear that the Respon-
dent, in its correspondence with Guzman after the accident,
made no mention of this rule and the Company’s correspon-
dence to Guzman, as well as its note to his chiropractor seem
only to be concerned with his ability to perform his job duties.
Here, the mere fact that the Respondent did not discharge or act
against a more prominent union supporter (Steward Collazo)
with whom Guzman rode in the same carpool is irrelevant,
especially since they followed slightly different procedures in
notifying the Company. Guzman testified that he mailed mate-
rial to the Company (in a postal service mailbox) which raises a
presumption of delivery. Although the Respondent claims it
didn’t receive this information, it was aware that his daughter
had come to the Respondent and delivered a note from a doctor
of chiropractory saying he was being treated and was unable to
return to work and needed to be reevaluated in a week.
Winchell testified that Guzman was terminated because the
Company didn’t “know what happened to this guy, he just va-
porized for about a month and we didn’t hear anything. We
consider, and she wrote on her form to the Unemployment
Board, that he had abandoned his job by not keeping us in-
formed as to what was going on.”
In fact, Guzman obtained a clearance from his chiropractor
dated July 28 and he attempted to return on Monday, August 1,
but found that his timecard had been removed. He went to
Supervisor Coiro and testified that he gave him the doctor’s
note but that Coiro said, “[Y]ou don’t have any more work”—
“Winchell said that you don’t have any work.” Winchell, how-
ever, testified that Coiro asked for a medical slip but Guzman
didn’t have one. Coiro testified that he asked for a slip but that
Guzman never gave him a paper and that he did not remember
if Guzman said anything in response to his demand. Coiro did
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64
not indicate that he made any effort to have his remarks in Eng-
lish to Guzman translated to Spanish but did testify that he said:

[Y]ou can’t come back to work because you need a letter
from your doctor because you’ve been out on an injury and
you can’t come back without a doctor’s note so that we can
put you on the proper work.

Coiro admitted that he was aware that the several employees
had been in an accident and he reluctantly admitted that he
“probably” had conversations (that he didn’t remember), with
Winchell (but not at any length), about Guzman status prior to
August 1.
Then, with out any further attempt to communicate with
Guzman after he attempted to return, the Respondent then pro-
ceeded to invoke its unpublished rule and without any further
warning, request for compliance, or inquiry about Guzman’s
understanding of what was required, it simply ended his em-
ployment.
At one point Guzman and owner Winchell were the only two
people in the plant trained and able to operate one major piece
of machinery. Coiro testified the he and Winchell probably
discussed Guzman’s status, yet nothing was done to insure that
Guzman understood what was supposedly required of him. I
am not persuaded that the Respondent would have taken such a
cavalier approach to Guzman’s termination when it clearly
knew he had attempted to return to work on August 1. Instead
of helping to clarify his status, it seized upon the opportunity to
diminish the number of Hispanic union supporters remaining in
the plant and abruptly ended his long-term employment with
the Company.
I find that Respondent claim that it never received certain
communication from Guzman is unlikely and I do not credit
Coiro’s denial in this respect, however, it does not affect the
ultimate conclusion herein. Moreover, the fact that Guzman
sought unemployment compensation when he understood he
couldn’t come back to work provides no presumption or excuse
for the Respondent’s actions and I conclude that the Respon-
dent has failed to show that it would have acted in this extreme
manner with Guzman even in the absence of the union activi-
ties by Guzman and the other Hispanic employees. Accord-
ingly, I find that the General Counsel has met his overall bur-
den and has shown that Guzman’s termination violated Section
8(a)(1) and (3) of the Act, as alleged.
C. Failure to Recall Estervina Sanchez
Estervina Sanchez and Alex Caporizzo held the same job and
were laid off on September 15, 1993. On October 1, only
Caporizzo was recalled. Sanchez was a Hispanic employee
who had attended union meetings both before and after the
election and she voted in the election. She also approached the
Union about a pay problem and the Union raised that issue with
the Employer at negotiations and also filed an unfair labor prac-
tice charge on her behalf. Accordingly, I find that Sanchez was
both generally and specifically identified as a union supporter.
Moreover, I credit her testimony that on one occasion Supervi-
sor Coiro told her to go to the Union for more money when she
inquired about her pay rate.
Although she was not recalled, the Respondent recalled a
less senior non-Hispanic employee (who had been trained by
Sanchez and was not employed at the time of the election).
Both were electrical assemblers, however, the Respondent of-
fered contradictory reasons for its failure to recall Sanchez. At
the hearing, Respondent claimed that the work was either too
heavy or bulky for her and that her health insurance costs as a
long-term employee would have been prohibitive. During the
investigation of the charge the Respondent offered a different
set of reasons, including the possibility that there was not
enough work for her and that she got more money on unem-
ployment compensation than she would get for part-time work.
Moreover, the Respondent denied the fact that Teresa Dorris
the wife of a supervisor, was doing light assembly work at
home, work on the same type of units that Sanchez was most
capable of doing. The Respondent’s assertion that Sanchez
lacked multiple skills and could not handle anything other than
small assemblies is unpersuasive. Sanchez testified that she
wired and picked up lamp units of 25 or 30 pounds and also
sometime had done packing in addition to assembly of power
strip units.
Here I find that the Respondent has pretextually downgraded
Sanchez abilities as compared to the less senior non-Hispanic
employee it recalled and it essentially avoided any duty to re-
call her to a full-time position by expanding its apparent use of
a supervisor’s wife as a home subcontractor. These circum-
stances do not constitute a persuasive showing that the Respon-
dent would have taken the same action in the absence of San-
chez’s use of the Union to plea for fair and equal wages and the
other generalized union activities of the Hispanic workers and I
conclude that the Respondent has failed to meet its burden in
this respect and I find that the Respondent’s abandonment of
Sanchez after her layoff and its failure to recall her from layoff
was discriminatorily motivated and would not have occurred
but for the protected union activity. Accordingly, I find that it
violates Section 8(a)(1) and (3) of the Act, as alleged.
D. Failure to Recall and Bargaining
The record shows that Respondent laid off a majority of the
employees represented by the Union in September 1993. Re-
spondent notified the Union of the layoff 2 days before the
layoff became effective; the notification indicated that the lay-
off was going to be of short duration and that employees would
be recalled as economic conditions allow. While approxi-
mately five employees were recalled, the last employee recalled
was Aquiles Cabrera in January 1994. No employees were
recalled after this date, however, some workers were obtained
through the service of a temporary employment agency and
then, between September and November 1994, the Respondent
hired four new regular full-time employee. Respondent did not
notify the Union that it was going to end the recall of the laid-
off employees.
The Respondent’s last communication with the Union was
sent on December 10, 1993, and it indicates that a unit em-
ployee is taking leave and his position will be temporarily filled
by a supervisor and that Mike Direco would be recalled. The
Union’s failure to respond could allow the Respondent to infer
that the Union acquiescence with its proposed action but the
WILMINGTON FABRICATORS, INC. 65
failure to respond to this correspondence or the September lay-
off notice is insufficient to show that the Union has abandoned
the unit.
The specific matter of recall of employees from layoff is a
mandatory subject of bargaining. Quality Packaging, Inc., 265
NLRB 1141, 1149 (1982), and it is clear that Respondent never
notified the Union of its decision to stop the recall of laid off
unit employees. The Union was not given an opportunity to
bargain about the decision or effects of Respondent’s refusal to
recall laid off employees and the Union was not notified that
the Respondent was changing its originally communicate plan
for recall of employees as economic conditions allow.
Except as discussed above regarding employee Sanchez, the
Respondent offers no legitimate reason for its failure to recall
unit employees and the record is devoid of probative evidence
establishing any lawful business reason for Respondent’s fail-
ure to recall unit employees. Under these circumstance, and in
light of the overall record, it is clear that the failure to recall is a
further manifestation of Respondent’s antiunion motivation
and, accordingly, I find that its actions in this respect also are
shown to violate Section 8(a)(1), (3), and (5) of the Act, as
alleged.
Lastly, it is noted that the general charges related to failure to
recall were filed in October 1994 shortly after the first regular
full-time employee was hired in September and there was no
intervening notice from the Respondent after the last laid-off
employee was recalled in January 1994. I find that this event
triggered the 10(b) period and the charge therefore was timely.
Moreover, I find that the amended April 1996 charge is
“closely related” to the factual situation and theory of timely
change, see Redd-I Inc., 290 NLRB 1115 (1988), and I reaffirm
my acceptance of the amended complaint.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce within
the meaning of Section 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. By discharging Danilo A. Guzman on August 1, 1993,
and failing and refusing to recall Estervina Sanchez from layoff
because of their union or other protected activity, Respondent
has violated Section 8(a)(1) and (3) of the Act.
4. By hiring new employees and failing and refusing to re-
call laid off employees or to notify the Union of its changed
plans in September 1994 and thereafter, Respondent has vio-
lated Section 8(a)(1), (3), and (5) of the Act.
5. Except as found herein, Respondent otherwise is not
shown to have engaged in conduct violative of the Act as al-
leged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With respect to the necessary action, it is recommended that
Respondent be ordered to reinstate employee Danilo A.
Guzman, and to recall employee Estervina Sanchez and all
other employees laid off in September 1993, who were dis-
criminatorily denied recall, to their former jobs or substantially
equivalent positions, dismissing, if necessary, any temporary
employees or employees hired subsequently, without prejudice
to their seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of earnings they may
have suffered because of the discrimination practiced against
them by payment to them of a sum of money equal to that
which they normally would have earned from the date of the
discrimination to the date or reinstatement in accordance with
the method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).1
The Respondent also shall be ordered to remove from its
files any reference to Guzman’s discharge and notify him in
writing that this has been done and that evidence of the unlaw-
ful discharge will not be used as a basis for future personnel
action against him. And, because the violations also involve
Section 8(a)(5) of the Act, Respondent also shall be ordered to
bargain, upon request, in good faith for a reasonable period of
time with the Union as the exclusive bargaining representative
of the unit about terms and conditions of recalling unit employ-
ees from layoff. Otherwise, it is not considered necessary that a
broad Order be issued.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.-2
ORDER
The Respondent, Wilmington Fabricators, Inc., Wilmington,
Massachusetts, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Discriminatorily terminating or failing to recall any em-
ployee from layoff because of the employees engaging in union
or other protected activities.
(b) Discriminatorily failing and refusing to recall laid-off
employees or failing to notify the Union of its planned actions.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Danilo
A. Guzman and Estervina Sanchez immediate and full rein-
statement (or recall) and offer recall to all employees laid off in
September 1993, who were discriminatorily denied recall and
make them whole for all losses they incurred as a result of the
discrimination against them, in the manner specified in the
section the remedy.
(b) Within 14 days from the date of this Order, remove from
its files any reference to Guzman’s termination and within 3

1 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66
days thereafter notify the employee in writing that this has been
done and that evidence of the unlawful termination will not be
used as a basis for future personnel action against him.
(c) Within in 14 days of a request by the Union bargain in
good faith with the Union about the terms and conditions of
recalling unit employees.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its
Wilmington, Massachusetts, facilities copies of the attached
notice marked “Appendix.”3 Copies of the notice in both Eng-

3 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
lish and Spanish on forms provided by the Regional Director
for Region 1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps the
Respondent has taken to comply.

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.”