Amersino Marketing Group, LLC

National Labor Relations Board - Administrative Judge Opinions

Feb 27, 2007

29-CA-027623 (N.L.R.B. Feb. 27, 2007)

JD–13–07
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERSINO MARKETING GROUP, LLC
and Cases 29–CA–27623
29–CA–27624
INDUSTRIAL WORKERS OF THE WORLD 29–CA–27808
Marcia Adams, Esq., for the General Counsel.
Jeff Fox, Esq. (Wu & Kao), of New York,
New York, for the Respondent.
Stuart Lichten, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Brooklyn, New
York, on November 8, 9, and 30, 2006. The charges in Cases 29–CA–27623 and 29–CA–27624
were filed May 9, 2006.1 The charge in Case 29–CA–27808 was filed July 11, 2006. An order
consolidating cases, consolidated complaint and notice of hearing issued July 21, 2006 (the
complaint). The Industrial Workers of the World (the Union) alleges that Amersino Marketing
Group, LLC (the Respondent or the Company), by its president, Henry Wang, informed
employees on or about April 10 that joining the Union would be futile because the Respondent
would never join the Union; and engaged in the following conduct against employees in order to
discourage them from engaging in protected concerted activities: discharged Diego Lezama on
April 24; shoved Eliezer Gallardo, told him not to speak with new employees, and discharged
him on April 29; suspended Juan Antonio Rodriguez on April 29 and discharged him on May 2;
and discharged Manuel Lopez on May 2. The Respondent denied suspending, locking out, or
terminating any employees because of their activities or support of the Industrial Workers of the
World, or otherwise engaging in any unfair labor practices.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and the
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a domestic corporation, has its principal office and place of business in
Brooklyn, New York, where it annually purchases and receives goods and materials valued in
excess of $50,000 from entities located outside the State of New York. The Respondent admits

1 All dates are in 2006 unless otherwise indicated.
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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 organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a produce wholesaler in Brooklyn, New York. It mainly distributes
fresh vegetables from its facility to customers throughout New York City. Henry Wang owns the
Company and serves as president. Guo You Min (Guo) directly supervises employee
operations. Employees consist of warehouse employees, drivers, and helpers. They generally
work Monday through Saturday and start work between 5:30 and 6 a.m.2
The four discriminatees were employed by the Respondent at various times. Gallardo
had been around the longest. He was hired in May 2002 and had several responsibilities.
Gallardo operated a forklift, loaded and unloaded trucks, and cleaned the cooler. Since 2004,
Gallardo had also been required to take daily inventory of merchandise in the warehouse. Diego
Lezama was hired as a warehouse driver in October 2005. Juan Antonio Rodriguez and Manuel
Lopez worked as driver’s helpers. Rodriguez was hired in November 2004; Lopez was hired in
September 2005.
B. Employees Initiate Union Activity
In mid-February 2006, Billy Randel and Burt Pickard, co-organizers for the Union, met
several of the Respondent’s employees while making deliveries to another business near the
Respondent’s facility. They spoke about working conditions in the facility and exchanged
information. Toward the end of February or beginning of March, Randel and Pickard met with
several of the Respondent’s employees at the Union’s Brooklyn office and discussed following
up on a Department of Labor wage and hour complaint that had been previously filed.3
On March 18, the Respondent terminated two employees, Rene Pulidos and Manuel
Lopez.4 Later that day, Gallardo, Lezama, and several other employees discussed the situation
and decided to call Randel for assistance. Lezama called Randel, told him Pulidos and Lopez
had been discharged, and that workers wanted them reinstated. Randel suggested they meet
before work on Monday morning, March 20.
At about 5:30 a.m. on March 20, Randall and Pickard met at a nearby coffee shop with a
group of employees, including Gallardo, Lezama, Rodriguez, Lopez, and Pulidos. They each
signed a petition requesting union representation. The petitions were backdated to March 15.

2 I generally found Wang credible, except where I note his testimony to be contradicted by
the weight of other credible and or undisputed evidence.
3 This finding is based on the unrefuted testimony of Gallardo and Randel. Although I did not
find Randel credible on the issue of the dates that union authorization forms were signed (see
fn. 5 below), I found credible most of his testimony regarding subsequent events that transpired.
(Tr. 73–77.)
4 Wang’s testimony that Guo terminated Lopez and Pulidos for incompetence was not
refuted. (Tr. 233–237.)
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The group then decided to go the facility and have Randel request that the Respondent
recognize the Union and reinstate Lopez and Pulidos.5
The union representatives and the employees arrived at the Respondent's facility shortly
before 6 a.m., just as Guo was arriving. Randel told Guo to advise Wang that the Union wanted
to speak with him. Guo went inside, but no one came out. A few minutes later, Randel went
inside, saw Wang seated at a desk in his glass-enclosed office, and shouted for him to come
outside and speak with his employees. A few minutes later, Wang came outside. He asked the
employees why they had not yet reported to work. Randel introduced himself and informed
Wang the employees had joined the Union and would be filing a petition for a representation
election. He also demanded reinstatement of Pulidos and Lopez, the payment of the minimum
wage, and overtime pay. Wang attempted to ignore Randel and addressed the employees. He
insisted that he complied with wage laws, and refused to rehire Pulidos and Lopez. At that point,
Randel told Wang the union supporters would be on strike that day. Pickard translated the
discussion to Spanish for the benefit of the employees present.6 Wang went back inside the
facility, but reappeared a few minutes later. He agreed to reinstate Lopez and Pulidos, pay
minimum and overtime wages, and allow for a lunch hour, but asked the strikers to return to
work. By 6:30 a.m., all of the strikers, including Pulidos and Lopez, had returned to work.7
Later that day, Randel, on behalf of the Union, filed with the Board a petition for
certification of representative of “all full-time and regular part-time warehouse employees,
drivers and helpers.” It excluded “all office clerical employees, supervisors and guards.” On April
6, the Respondent signed a stipulated election agreement scheduling a representation election
for April 28. That agreement was approved by the Regional Director on April 7.8
C. Employees Concerted Activities on April 10
There were no further incidents until the second week in April, when several employees
noticed reductions in their paychecks. On or about April 9, several employees met with Randel.
He suggested they confront Wang about the pay issues at the Respondent’s facility. At around
6:05 a.m. on April 10, about 15 employees approached the front of the Respondent's facility.

5 The weight of the credible evidence indicates that the authorization forms were not signed
on March 15, but rather, during the morning before work on March 20. Randel testified that he
was notified of the terminations on March 18, but that the employees previously signed
authorization forms on March 15. In contrast to other events, however, he did not provide details
of a meeting with the employees on March 15. (Tr. 75–77.) Gallardo initially testified that he
signed the form the next workday after Pulidos and Lopez were terminated on March 18.
However, he then retracted that statement, said he did not have a good recollection of the date,
looked at the authorization form, and changed the termination date to March 14. No one else
testified that March 14 was the termination date. (Tr. 17–20; GC Exh. 5.) Rodriguez testified, in
response to a leading question in which he was shown the dated document, that he signed the
form on March 15. (Tr. 105–107; GC Exh. 5.) I was not convinced. As such, I relied on the
testimony of Lezama that the terminations occurred on March 18 and, even though the form
was dated March 15, he signed it on March 20. (Tr. 132–134; GC Exh. 6.)
6 Wang referred to the Hispanic employees as “amigos,” a term that means “friends” in
Spanish and, under the circumstances, was not meant to be derogatory. (Tr. 238.)
7 The testimony of Wang, Randel, and the employees was fairly consistent regarding their
encounter during the morning of March 20. (Tr. 22–23, 80–82, 107–108, 135–138, 237–238,
279–280.)
8 G.C. Exhs. 2–3.
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They were joined by Randel. The employees carried signs and set up a banner that read,
"Amersino unfair. Pay what you owe." A few minutes later, Gou came out and asked Randel
what was happening. Randel told him they wanted to meet with Wang about some problems.
After about a half hour, Wang came out and asked what the problem was. The
employees present included Gallardo, Rodriguez, Lezama, Pulido, Lopez, and Rodriguez.
Randel and several employees said that their paychecks had been reduced inappropriately.
Wang then asked why the employees did not come to speak with him and why they always
needed to bring in the Union. He also charged the Union was "brainwashing" the employees,
"holding his company hostage," and proclaimed he would never accept the Union: "over my
dead body there will be a union in this plant." After the discussion went on for a while, Randel
told Wang that he would have to resolve the employees’ pay issues or they would remain on
strike. Wang agreed and the employees returned to work.9
As the employees punched in, Wang began yelling at Lezama and another employee,
“Cristobal,” said they were stupid for bringing in the Union, and reaffirmed his opposition to the
Union: “The company is too small. If we wanted to have a union, to go somewhere else.” At that
point, Lezama walked out and urged others to do the same. In response, Lezama and Gallardo,
followed by other employees, walked out of the facility and onto the street. Gallardo then called
Randel and told him what was happening. Randel told him to wait until he arrived.
Randall arrived within 20 to 30 minutes and spoke with the employees. As he spoke with
them, a van left the facility. About 30 minutes later, the van returned with replacement workers.
Several employees, including Gallardo, approached the van after it parked on the Respondent’s
driveway. Randel and the strikers then appealed to the replacement workers for solidarity and
implored them to leave. The replacement workers agreed and left.10 Some time later, Wang
came back out and told the employees to return in the afternoon to meet with him individually
and correct any problems.11
The striking employees returned that afternoon and met individually with Wang in his
office and discussed their pay issues. In his conversation with Lezama, Wang said that “the
Union was no good,” and promised the employees a lot of things, but would not deliver. He
added that he would have to deduct taxes if he had to pay by the hour. Furthermore, if the
employees insisted on union representation, he would require the production of “green cards” or
other legal documentation. Lezama told Wang he would “leave” the Union.12
Gallardo’s meeting with Wang was the last one of the day. Wang asked Gallardo what
was going on. Gallardo explained that Wang had been withholding $5–10 each week from each

9 The testimony of Randel, Lezama and Lopez, whom I found to be the most credible of the
discriminatees, regarding Wang’s antiunion statements was confirmed by Wang’s testimony that
he “repeatedly expressed in my personal opinions that I am opposed to unions in our company
and that is crystal clear.” (Tr. 86–87, 141–142, 177–178, 255.)
10 Gallardo was evidently mistaken about Wang pushing him on April 10, as Randel,
Rodriguez, and Wang each testified that the altercation occurred on April 29. (Tr. 27, 92–93,
114, 251.)
11 I did not credit Lezama’s assertion that Wang said that “those of us that wanted to work
without a union, to come back in around 2 o’clock in the afternoon.” (Tr. 145.) That testimony
contradicted otherwise credible testimony by Randel and Gallardo regarding April 10.
12 This finding is based on the credible testimony of Gallardo and Lezama, which went
unrefuted by Wang. (Tr. 25–26, 142–143, 146–147.)
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paycheck. He also said that Guo was not the ideal person to be handling money. Wang said he
would see what he could do. Gallardo then asked if it would be possible to relieve him of his
inventory responsibilities and allow him to do his other two jobs—operating the forklift and
cleaning the cooler. Wang said he would try to get someone else to do the inventory.13
D. Lezama’s Termination
On April 17, Lezama asked his supervisor, Guo, for permission to take off from work on
April 18 and 19 in order to attend a criminal court proceeding 1 day and a dermatology
appointment another day. Guo gave him permission to take the time off. However, instead of
returning to work on Friday, April 20, he did not return to the Respondent’s facility until April
24—an absence of 4 workdays. He arrived at around 9 a.m., which was about 3-1/2 hours late.
Obviously not intending to work that day, Lezama was dressed in leisure attire, not his usual
comfortable working clothes. He did not punch in and entered the facility. Guo saw Lezama and
asked why he had not shown up for work. Lezama did not respond and proceeded to a break
area, where he spoke with several employees.
Wang saw Lezama talking to other employees and walked out of his office to speak with
him. He asked Lezama why he had been absent for 4 workdays. Lezama told him that he saw a
doctor about his pimples and had a court appearance, but did not show him a doctor’s note.
Wang said it was unacceptable that Lezama was unable to work because of a pimple. Of
particular importance to Wang was the fact that Lezama was one of only four employees who
operated the forklift, a vital role in the Respondent’s operation. Lezama then asked if he could
return to work the next day. In accordance with his policy of replacing employees who had been
absent for 2–3 days without permission or do not call in sick before the workday begins, Wang
told Lezama he had been terminated.14
E. Employees Concerted Activity on April 29
On April 28, the Board conducted a representation election at the Respondent’s facility.
Gallardo voted and was the sole observer on behalf of the Union. He challenged 22 challenged
ballots. Rodriguez and Lopez also voted. The majority of the voters were of Asian descent.
On April 29, the day after the election, Randel stood outside the facility and spoke with
employees as they reported to work. He briefed them about the election and the likelihood that a

13 Wang testified that he called for replacement workers on two occasions and protestors
confronted the replacement workers each time. He recalled an instance on April 29, but did not
identify, nor provide details about the other occasion. (Tr. 271.) Accordingly, I base my findings
concerning the events of April 10 mainly on the unrefuted testimony of Randel and Gallardo. (Tr.
23–28, 86–87.)
14 I based this finding primarily on the testimony of Wang and Guo, and did not credit
Lezama’s assertion that he was discharged because of his union activity. Nor did I credit
Lezama’s testimony that he produced the dermatologist’s office receipt, dated April 19, to Wang
on April 24. (GC Exh. 8.) Even if he had, I find it credible that Wang would have found it
unacceptable for Lezama to have taken off two extra workdays after taking off 1 day for a court
appearance and another for a doctor’s appointment. Moreover, on this issue, Lezama displayed
a lackadaisical demeanor, a spotty recollection, and his testimony was evasive and
contradictory, especially his attempt to hide the fact that part of his absence was as a defendant
in a criminal proceeding. (Tr. 148–152, 155–157, 207–213, 215, 217, 219, 294–295; R. Exh. 2.)
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hearing would be scheduled to determine the outcome. By 6 a.m., all of the employees had
reported to work and he left.15
A little while later, Gallardo had finished loading a truck when Wang called him into his
office. Wang asked Gallardo why he did not list three pallets of garlic on the inventory sheet.
Gallardo said he forgot. Wang responded with an expletive and asked if Gallardo was asleep on
the job. Gallardo told Wang not to speak to him like that. Wang responded that he could not look
upon Gallardo with “good eyes” after what happened at the election." Wang then threatened to
terminate Gallardo if he made another mistake. This was unusual, since Gallardo had never
been threatened with disciplinary action before for mistakes he made with inventory.16 Gallardo
told Wang that he could not terminate him because there had been an election and he now
belonged to a union. Gallardo said that if Wang terminated him, others will also leave. He also
reminded Wang about his request to have someone else do the inventory. Wang said he did not
care about that and wanted Gallardo to do it. He warned Gallardo that, “if you can’t accept this
job, I have no job for you here.” Gallardo insisted he would not do inventory and threatened that
other employees would walk out with him if he was terminated. Wang dared Gallardo to carry
out his threat. Gallardo then walked out and informed the other employees that Wang
terminated him. Since Wang had not told him he was terminated, Gallardo’s statement could
only mean that he considered himself terminated because he would no longer do inventory as
required by Wang as a condition of his employment.
At that point, Rodriguez, having heard and seen the discussion between Wang and
Gallardo, went over to Wang’s office and, even though the door was open, banged on Wang’s
office window several times with a cellular telephone, and motioned for Wang to come outside.
Wang came out of his office and Rodriguez told him there was no reason to yell at Gallardo.
Wang told Rodriguez he was suspended for his behavior. Wang then walked out onto the
warehouse floor and told Gallardo that he was terminated. A group of about 10 employees,
including Gallardo, Rodriguez and Lopez, then walked out the facility. They gathered outside
and Gallardo called Randel.17
A few minutes later, at about 6:30 a.m., Randel arrived and spoke with the group of
about 20 employees. Pickard came a few minutes later. They spoke with the employees, who
decided to set up a picket line. As they spoke, a van carrying no passengers left the facility. At
about 9:30 a.m., Wang came out and asserted the right to suspend Rodriguez for
insubordination. In the presence of the striking employees, which included Gallardo, Rodriguez,

15 GC Exh. 4; Tr. 29–30, 40, 66, 89, 108, 179.
16 Wang recalled that Gallardo made such mistakes two or three times in the past, but
conceded that he would simply ask Gallardo “to make a correction or just pointed it out and
asking him to be more careful in the future.” Tr. 262–264.
17 Contrary to what Gallardo told his fellow workers after he left Wang’s office, Wang did not
tell Gallardo, while the latter was in his office, that he was terminated. Gallardo testified that
Wang threatened to terminate him if he made another mistake, insisted he continue doing the
inventory, and that he then walked out of Wang’s office. Wang conceded that they had an
“intense” conversation about the mistake and that he told Gallardo that “if he can’t accept this
job, I have no job for you here.” (Tr. 30–34, 41–42, 227–228, 239–242, 259–262.) Rodriguez’
testimony confirmed that Wang did not terminate Gallardo until Wang came out of his office to
speak with Rodriguez. However, I did not credit that portion of Rodriguez’ testimony that he
lightly tapped his cell phone on Wang’s window. His courtroom demonstration, in which he very
lightly tapped the wall with his cell phone, was extremely guarded and led me to believe that he
was lying on this point. (Tr. 109–111, 125–128.)
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and Lopez, he told Randel he would “be sorry you’re doing this.” Wang accused Randel of trying
to “kidnap” his business and insisted his facility would “never go union. I’ll close first.” Randel
then told Wang to “go away, we don’t really want to talk to you right now.”
A short while later, the van returned with passengers. Randel and the protestors
correctly assumed the passengers were replacement workers. Several picketers blocked the
vehicle from entering through the driveway entrance to the facility. The van parked and the
passengers exited the van on the driveway. As they attempted to enter the facility, the picketers
urged them to refrain from working for the Respondent. Wang delved into the crowd, pushed
Gallardo and told Gallardo not to talk to the replacement workers because he had been
terminated. Gallardo agreed to refrain from any further action, but told Wang not to push him.
Randel intervened and pulled Gallardo away.18
Wang reentered the facility, but returned later and told the protestors to return at 2 p.m.
for their salaries. He also reminded Rodriguez he was suspended. At approximately 2 p.m., the
employees returned for their paychecks. Guo handed them out, as Wang stood next to him.
With the exception of Gallardo and Rodriguez, Wang told the employees to return to work on
May 1, when he would determine who would continue to work for him. Wang cursed at
Rodriguez, told him to leave, and told Gallardo that he preferred to go to court rather than have
Gallardo work there.19
F. The Termination of Lopez and Rodriguez
Notwithstanding the fact that Wang told the workers to return to work on May 1, he was
aware of the fact that May 1 was a day of nationwide mass demonstrations by Hispanic
workers. One was scheduled for Manhattan, but during the morning, a group of about 40
Hispanic employees and other union supporters participated in a previously scheduled 4 hour
protest until 10 a.m. in front of the Respondent’s facility. At that point, the protestors left for the
demonstrations in Manhattan. Wang noticed that Lopez and Rodriguez were in the group.20
On May 2, Lopez, Rodriguez, and the other Hispanic employees arrived at work at their
regular time and attempted to punch in, but Wang told them to return at 2 p.m. At or around that

18 Wang’s testimony that protestors blocked the van from entering the facility was not
refuted by Gallardo, Rodriguez, or Randel. He did not, however, specify which protestors
blocked the van. On the other hand, I credited their testimony that Wang pushed Gallardo, since
he conceded that he went into the crowd, thought the protestors were “going to be violent” and
“disruptive, so a lot of things went through my mind at that time.” (Tr. 26–27, 89–93, 114–117,
243–246. 250–251.) There was no testimony by other employees, however, that they heard
Wang tell Gallardo or any striking employee they could not speak to the replacement workers.
Accordingly, I credit Wang’s unrefuted testimony that he did not attempt to discourage
employees—as opposed to Gallardo—from speaking to the replacement workers. (Tr. 272,
277.)
19 With the exception of Gallardo’s hearsay testimony regarding an alleged comment made
by Wang to an unspecified employee, I credited the unrefuted testimony of Gallardo and
Rodriguez regarding this event. (Tr. 40–41, 112–113, 251.)
20 There is no doubt that May 1 was a day of nationwide protests, that the Respondent’s
Hispanic employees were absent from work for that purpose, and that Wang anticipated this
and condoned it. However, Lopez’ testimony indicating that he may have attempted to punch in
that day was extremely spotty, uncertain and contradictory. Accordingly, I did not credit that
aspect of his testimony. (Tr. 113, 176–181, 196, 202, 251–253.)
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time, Wang met individually with each employee. During his individual meetings with Lopez and
Rodriguez, Wang told each of them that he found temporary replacement workers and did not
have work for them. In Lopez’ case, Wang asked him to leave his telephone number so he
could call him if he had more work for him. Wang has never recalled either employee to work
since that day.21
III. LEGAL ANALYSIS
A. The 8(a)(1) Charges
The complaint alleges that the Respondent, by Wang’s conduct, violated Section 8(a)(1)
by: (1) informing employees on April 10 that it would be futile to join the Union because the
Respondent would never recognize the Union; and (2) shoving an employee on April 29
because he was engaging in union activity and told an employee not to speak with new
employees. The Respondent denied the allegations.
Absent threats or promise of benefit, an employer is entitled to explain the advantages
and disadvantages of collective bargaining to its employees in an effort to convince them that
they would be better off without a union. Langdale Forest Products Co., 335 NLRB 602 (2001).
An employer violates Section 8(a)(1), however, by threatening employees that any attempt to
bring in a union would be futile. Winkle Bus Co., 347 NLRB No. 108, slip op. at 3 (2006), citing
Well-Stream Corp., 313 NLRB 698, 706 (1994). An unlawful threat of futility is established when
an employer states or implies that it will ensure its nonunion status by unlawful means. Ready
Mix, Inc., 337 NLRB 1189, 1190 (2002).
The credible evidence established that on April 10, Wang told employees, in pertinent
part, that he would never accept the Union and that a union would come into his plant only “over
his dead body.” Mindful of the high burden the Board has injected into the assessment of futility
threats, Wang’s threat to fight to the death clearly met that standard. His remark revealed his
intent to undertake all means—lawful or unlawful—to prevent the Union from coming into the
Respondent’s facility. Under the circumstances, Wang’s threat violated Section 8(a)(1).
The credible evidence also established that Wang shoved Gallardo as he spoke or
attempted to speak with replacement workers and rebuked Gallardo for his efforts. However,
other than Gallardo, a non employee at the time, and Randel, there is no evidence that other
employees heard Wang’s comments. Even if other employees saw Wang push Gallardo, his
conduct occurred as striking employees prevented a van with replacement workers from
entering the facility. Under such circumstances, it was not established that Wang’s actions
tended to restrain employees in the exercise of their Section 7 rights. Wackenhut Corp., 348
NLRB No. 93, slip op. at 1 (2006).
B. The Section 8(a)(3) and Charges
The complaint alleges that the Respondent, by Wang, violated Section 8(a)(3) and (1)
by: discharging Lezama on April 24; discharging Gallardo on April 29; suspending Rodriguez on

21 I found Lopez more credible than Wang on this point and, as such, credited his testimony
that Wang requested his telephone number and he gave it to him. Lopez was very forthright in
stating that he could not recall specific dates, but on this issue, he seemed certain. Wang, on
the other hand, equivocated as to whether Lopez left a telephone number. Tr. 182–185, 275–
276.
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April 29, and discharging and refusing to reinstate him on May 2; and discharging Lopez on May
2. The Respondent denies the charges and alleges that the discriminatees were either
discharged for cause or went on strike and were appropriately replaced by other workers.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the General Counsel has the initial burden of establishing that the
employee engaged in concerted protected activity, “the employer had knowledge of the
employee’s protected activities, the employer took adverse action against the employee, and
the employee’s protected concerted activity was a motivating factor in the employer’s adverse
action against the employee.” Southside Hospital, 344 NLRB No. 79, slip op. at 1 (2005). Once
these elements have been established, the burden shifts to the Respondent to prove, by a
preponderance of the evidence, that it took the adverse action for a legitimate nondiscriminatory
reason.
There is extensive evidence of the Respondent’s union animus. On April 10, Wang
accused the Union of "brainwashing" his employees, "holding his company hostage," insisted
there would never be a union at his facility, and directed employees to seek employment
elsewhere if they wanted a union. On April 29, Wang told Gallardo that he viewed him
negatively because of his observer role on behalf of the Union at the April 28 election. Later that
day, Wang accused union representatives of attempting to “kidnap” his business, and insisted
the Respondent would close before accepting union affiliation. He also shoved Gallardo as he
confronted replacement workers that day but, by that time, Gallardo had already been
terminated.
1. Gallardo
Gallardo engaged in an extended amount of concerted activity for over 5 weeks prior to
his discharge on April 29 and Wang was well aware of it: Gallardo signed a union-authorization
slip on March 20; was part of a group of employees and union representatives that requested
recognition of the Union, and confronted Wang in front of the facility on March 20 and April 10
about employee terminations and wage issues; he confronted replacement workers on April 10
and 29; in his individual meeting with Wang on April 10, complained about inappropriate payroll
deductions and questioned Guo’s competency to handle the payroll; and, at the representation
election on April 28, he voted, was the sole observer on behalf of the Union, and challenged 22
ballots.
The credible evidence established that Wang terminated Gallardo after the latter walked
out of Wang’s office on April 29. Wang had pointed out mistakes by Gallardo in performing
inventory that, because of the intensity of Wang’s reaction to the mistake and his statement that
he now viewed Gallardo negatively, indicated that the inventory issue was pretextual. At that
point, however, there was no adverse action, as Gallardo had not been terminated. He was only
threatened with termination if he made another inventory mistake. Gallardo then escalated the
dispute by insisting he would no longer perform inventory because Wang promised to look into
the situation on April 10. Wang rejected that ultimatum, told Gallardo he would be terminated if
he refused to do inventory, and Gallardo walked out. Gallardo then told other employees that he
had been terminated, but that was only true, at that point, in the constructive sense; Gallardo
essentially resigned. Once Wang came out on the floor, after being confronted by Rodriguez, he
then told Gallardo that he had been terminated.
In essence, Wang’s discussions with Gallardo were replete with 8(a)(1) violations, but
Gallardo was not terminated as a direct result of his involvement in protected concerted
activities. On April 10, Wang promised to look into Gallardo’s complaint about having to do the
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inventory along with his other duties. However, there was no guarantee, nor was there any
discussion prior to April 29, that Gallardo would be relieved of those duties. Gallardo then
resigned and/or was terminated because he refused to perform inventory duties. Accordingly,
there is no connection between Gallardo’s termination and his protected concerted activity.
Thus, the evidence failed to support a prima facie case of an 8(a)(3) violation against Gallardo.
2. Lezama
Lezama engaged in protected concerted activity for over 4 weeks prior to his discharge
on April 24 and Wang was well aware of his involvement: Lezama signed a union-authorization
slip on March 20; was part of the groups that confronted Wang about employee conditions on
March 20 and April 10, and confronted replacement workers on April 10. The credible evidence
revealed, however, that Lezama pushed the proverbial envelope too far.
Lezama requested permission on April 17 to take 2 days off to attend to a court case
and a doctor’s appointment. His supervisor, Guo, approved the request. Instead of returning to
work on April 19, however, Lezama took 2 additional workdays off without requesting
permission. To make matters worse, he arrived at the facility 3-1/2 hours late on April 24, but
was not prepared to work. He was “dressed-up” and not in the usual comfortable work attire that
employees wore, did not punch in and went to a nonwork area where he engaged in
conversation with other employees. When confronted by Wang, Lezama did not provide a
satisfactory excuse for the additional 2 days that he took off without permission and was
terminated. As there was no credible evidence to refute Wang’s testimony regarding the
Respondent’s time and attendance procedures, it is evident that Lezama was terminated for
reasons unrelated to his protected concerted activities. Therefore, the proof in support of
Lezama’s 8(a)(3) claim also failed to establish a prima facie case.
3. Lopez and Rodriguez
Rodriguez and Lopez engaged in protected concerted activity for nearly 4 weeks and 6
weeks, respectively, prior to their discharge on May 2, and Wang was well aware of their
involvement: They signed union-authorization slips on March 20; participated in the groups that
confronted Wang about employee conditions on March 20 and April 10; voted in the election;
confronted replacement workers on April 10 and 29; and protested in front of the Respondent’s
facility on May 1.
The credible evidence established that Wang told Lopez, Rodriguez and the other
employees, after striking on April 29, to return on May 1, at which time he would determine who
would continue to work for the Respondent. In fact, the Respondent knew that May 1 would be a
day of nationwide protests by Hispanic workers and that none of the Hispanic employees would
be reporting to work that day.22 On May 2, Lopez and Rodriguez attempted to punch in at the
regular time for work, but Wang told them to return at 2 p.m. At or around that time, Wang met
individually with each returning employee. In his meetings with Lopez and Rodriguez, Wang did
not mention anything about their absence from work on May 1. Instead, Wang told them that he
had replaced them with temporary workers and did not have work for them. Wang did not
explain how this could have occurred, since he made no mention of that fact on April 29 when
he told Lopez and others to return on May 1. Furthermore, it is unrefuted that there was no work
on May 1 and that Lopez and Rodriguez reported to work at the regular time on May 2, only to
be told to return at 2 p.m. They have never been called back to work.

22 April 30 was a Sunday and the Respondent’s facility was closed.
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Given their extensive support for Union, Wang’s awareness of it and the timing involved,
there is compelling evidence connecting Wang’s union animus to the termination of Lopez and
Rodriguez on May 2. As such, under Wright Line, the burden of persuasion shifted to the
Respondent to establish, by a preponderance of the evidence, that it had a legitimate reason for
refusing to reinstate Lopez and Rodriguez—in this case, that they were permanently replaced. If
so, the Respondent would not have been justified in not offering them reinstatement. L.B.&B.
Associates, Inc., 346 NLRB No. 92, slip op. at 7 (2006); Avery Heights, 343 NLRB 1301, 1305
(2004); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Capehorn Industry, 336
NLRB 364, 365 (2001); Augusta Bakery Corp., 298 NLRB 58, 59 (1990), enfd. 957 F.2d 1467
(7th Cir. 1992).
In order to establish a legitimate and substantial business justification for refusing to
reinstate striking employees, however, the employer must provide specific proof that the
strikers’ positions were actually filled by permanent replacements. NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333, 345–346; Supervalu, Inc., 347 NLRB No. 37, slip op. at 17 (2006);
Capehorn Industries, supra; Fleetwood Trailer Co., supra. The Respondent failed to make such
a showing. Indeed, Wang told the workers that he filled their positions with temporary workers.
Under the circumstances, the Respondent violated Section 8(a)(3) by refusing to reinstate
Lopez and Rodriguez after they engaged in protected concerted activity.
CONCLUSIONS OF LAW
1. Amersino Marketing Group, LLC, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Industrial Workers of the World is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening the futility of collective bargaining if the Union came in, the Respondent
violated Section 8(a)(1) of the Act.
4. By discharging and refusing to reinstate Manuel Lopez and Juan Antonio Rodriguez
because they supported the Union, the Respondent violated Section 8(a)(3) of the Act.
5. By engaging in the conduct described above, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily discharged and refused to reinstate Manuel
Lopez and Juan Antonio Rodriguez, must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
ORDER
The Respondent, Amersino Marketing Group, LLC, Brooklyn, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening the futility of collective bargaining if the Respondent’s employees select
the Industrial Workers of the World or any other union as their collective-bargaining
representative.
(b) Discharging or otherwise discriminating against any employee for supporting the
Industrial Workers of World or any other union as their collective-bargaining representative.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Manuel Lopez and Juan
Antonio Rodriguez full reinstatement to their former jobs or, if their jobs no longer exists, to a
substantially equivalent position, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make employees Manuel Lopez and Juan Antonio Rodriguez 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 section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharges will not be used against them in any
way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Brooklyn, New York,
copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms provided by

23 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 purposes.
24 If this Order is enforced by a judgment of a United States court of appeals, the words in
Continued
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the Regional Director for Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
April 10, 2006.
(f) Within 14 days after service by the Region, mail copies of the attached notice marked
Appendix, at its own expense, to all warehouse employees, drivers and helpers who were
employed by the Respondent at its Brooklyn, New York facility at any time from the onset of the
unfair labor practices found in this case until the completion of these employees’ work at that
jobsite. The notice shall be mailed to the last known address of each of the employees after
being signed by the Respondent’s authorized representative.
(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 that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. February 27, 2007
_________________________
Michael A. Rosas
Administrative Law Judge
_________________________
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.”
JD–13–07
Brooklyn, NY
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten the futility of collective bargaining if the Respondent’s employees
selected the Industrial Workers of the World or any other union as their collective-bargaining
representative.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
International Workers of the World or any other union.
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 this Order, offer Manuel Lopez and Juan Antonio
Rodriguez full reinstatement to their former jobs or, if their jobs no longer exists, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Manuel Lopez and Juan Antonio Rodriguez whole for any loss of earnings and
other benefits resulting from their discharges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Manuel Lopez and Juan Antonio Rodriguez, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been done and that the discharges will not
be used against them in any way.
AMERSINO MARKETING GROUP, LLC
(Employer)
Dated By
(Representative) (Title)
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Brooklyn, NY
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.