CARNEGIE LINEN SERVICES, INC.

National Labor Relations Board - Board Decisions

Dec 31, 2011

357 N.L.R.B. 2222 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 188
2222
Carnegie Linen Services, Inc. and Laundry Dry
Cleaning & Allied Workers Joint Board, Work-
ers United, a/w Service Employees International
Union

Carnegie Linen Services, Inc. and Laundry Dry
Cleaning & Allied Workers Joint Board, Work-
ers United, a/w Service Employees International
Union and International Longshoremen’s Asso-
ciation, Union Local 1964, AFL–CIO. Cases 02–
CA–039560 and 02–RC–023436
December 31, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On July 11, 2011, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions with supporting argument. The Acting
General Counsel filed an answering brief.
The Board has considered the decision and the record
in light of the exceptions, supporting argument, and brief
and has decided to affirm the judge’s rulings,1 findings,2

1 The Respondent excepts to the judge’s denial of its motion at the
hearing to adjourn until after the criminal case filed by employee Jose
Luis Diaz against President Gary Perlson had been tried. It contends
that the denial was unduly prejudicial because Perlson could not testify
without compromising his Fifth Amendment right against self-
incrimination in the criminal case. We find that the judge did not abuse
his discretion in denying a continuance. In an October 28, 2010 order,
the Board directed the judge to proceed with the hearing although it
declined his recommendation to issue an order compelling Perlson to
testify. See Sec. 102.31 of the Board’s Rules and Regulations. Moreo-
ver, the Respondent has not shown any prejudice to Perlson’s Fifth
Amendment rights because he was not compelled to testify at the hear-
ing; nor did the judge draw any adverse inferences based on Perlson’s
failure to testify.
2 The Respondent excepts to the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard 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.
The Respondent also excepts to what it perceives as the judge’s im-
proper reliance on facts regarding employee Elida Guzman’s discharge.
We find that this exception is without merit because the judge specifi-
cally rejected the Acting General Counsel’s argument that Guzman’s
discharge was additional evidence of animus toward the Union.
Additionally, we do not pass on the Respondent’s exception to the
judge’s admission of antiunion DVDs shown to employees after Diaz
was discharged and before the January 20, 2010 representation election.
We find it unnecessary to rely on the judge’s finding that the DVDs are
evidence of additional animus because animus is already established
from Michael Garlasco’s statement to Diaz that the Company would
shut down, Garlasco’s attempt to bribe Diaz to stop his union activities,
and Perlson throwing coffee at Diaz.
and conclusions3 and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Carnegie Linen Services,
Inc., Bronx, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its facility in the Bronx, New York, copies of the at-
tached notice marked ‘Appendix.’12 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has

3 Although the judge did not explicitly rely on Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), we adopt his finding that Diaz’ discharge was in
violation of Sec. 8(a)(3) and (1) because his findings satisfied the ana-
lytical objectives required by Wright Line. Thus, the Acting General
Counsel established that union animus was a motivating factor in Diaz’
discharge. Specifically, the Acting General Counsel showed that Diaz
engaged in union activity when he contacted the Union and attended
the meeting at the restaurant, the Respondent was aware of this activity
through Garlasco’s knowledge of the meeting and his attempt to bribe
Diaz, and the Respondent displayed animus towards Diaz when Garlas-
co attempted to bribe Diaz, Perlson threw coffee in Diaz’ face, and
Garlasco told Diaz that the Respondent would close if the Union came
in. Furthermore, we agree with the judge that the timing and context of
the discharge—3 days after the attempted bribe and Perlson’s assault—
supports finding that the Respondent was motivated by Diaz’ union
activities in discharging him. Finally, we agree with the judge that the
Respondent’s proffered explanations for the discharge—Diaz’ commu-
nication with a competitor about confidential bidding and lunging at
Perlson—were pretextual. Consequently, the Respondent necessarily
failed to show that it would have taken the same action even absent
Diaz’ protected conduct. See Golden State Foods, 340 NLRB 382, 385
(2003) (citing Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982)). Accordingly, we do not reach the
judge’s alternate analysis applying Atlantic Steel Co., 245 NLRB 814
(1979).
4 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
CARNEGIE LINEN SERVICES 2223
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 cur-
rent employees and former employees employed by the
Respondent at any time since November 6, 2009.”
2. Delete paragraph 2(g).
IT IS FURTHER ORDERED that Case 02–RC–023436 is
severed and remanded to the Regional Director for Re-
gion 2 for the purpose of conducting a second election as
directed below.
[Direction of Second Election omitted from publica-
tion.]

Suzanne Sullivan, Esq., for the General Counsel.
Larry M. Cole and Nicholas Stevens, Esqs. (Starr, Gern, Da-
vison & Rubin, Esqs.), of Roseland, New Jersey, for the Re-
spondent.
Bryan C. McCarthy, Esq. (O’Connor & Mangan, P.C.), of New
Rochelle, New York, for Local 1964.
Liz Vladeck and Ira Katz, Esqs., of New York, New York, for
Workers United.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge, an amended charge, and a second amended charge filed
on October 29, 2009, November 23, 2009, and January 26,
2010, respectively, by Laundry Dry Cleaning & Allied Workers
Joint Board, Workers United, a/w Service Employees Interna-
tional Union (Workers United or the Union), a complaint was
issued on March 30, 2010, against Carnegie Linen Services,
Inc. (the Respondent or the Employer).
The complaint, as amended at the hearing, alleges that the
Respondent engaged in surveillance of employees engaged in
union activities, discharged Elida Guzman, offered Jose Luis
Diaz (Diaz) money to cease his union activity, inflicted bodily
injury on Diaz in response to his union activities and dis-
charged him, threatened employees with plant closure if Work-
ers United won the election, promised employees benefits if
they voted against the Union, and caused police officers to be
present in and around the Respondent’s facility on the day of
the election. The Respondent’s answer denied the material alle-
gations of the complaint.
On December 4, 2009, Workers United filed a petition for an
election in a unit of production and maintenance employees
including all packers, dockworkers, and delivery employees,
and on January 20, 2010, an election was held. The tally of
ballots showed that the election was won by the Intervenor,
International Longshoremen’s Association, Union Local 1964,
AFL–CIO (Local 1964). Workers United filed objections to the
election and on May 13, 2010, the Regional Office issued a
notice of hearing on objections and order consolidating cases,
which consolidated for hearing the unfair labor practice and the
objections cases.
On June 1, 2010, the hearing opened before me in New
York, New York. On June 23, a Partial settlement agreement
was executed by counsel for the General Counsel, the Re-
spondent, and Workers United, and was approved by me. The
agreement settled all the allegations in the complaint except
those relating to Diaz, and also provided that the election would
be set aside and the objections portion of the complaint would
be remanded to the Regional Director to schedule a new elec-
tion “which will be directed upon resolution of the remaining
allegations in this matter.”
The hearing continued on June 23, 2010, and on January 31,
and February 1, 2011.1
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a New York corporation, having an office
and place of business at 874 East 139th Street, Bronx, New
York, is a commercial laundry. Annually, the Respondent pur-
chases and receives at its Bronx, New York facility, products,
goods, and materials valued in excess of $50,000 directly from
suppliers located outside New York State. The Respondent
admits, and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent also admits and I find that Workers United
has been at all times a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As set forth above, the only complaint allegations before me
are those which allege that on or about (a) November 6, 2009,
the Respondent through its general manager, Michael Garlasco,
offered Diaz money to cease his union activity; (b) November
7, 2009, the Respondent through its owner, Gary Perlson, in-
flicted bodily injury on Diaz in response to Diaz’ union activi-
ties; and (c) November 10, 2009, the Respondent discharged
Diaz because he joined or assisted Workers United and engaged
in concerted activities.
A. The Facts
1. Diaz’ union activities
Diaz began work for the Respondent in December 2006, as a
machine operator, working at the tunnel washer. His duties
included taking laundry from bins and loading them into the
washer. When he was hired, and until June 2008, he worked the
day shift, from 6 a.m. to 3 p.m.
In June 2008, Diaz was asked by General Manager Garlasco
to work the night shift until a new machine was installed.
Thereafter, he worked at night for about 6 months, until No-
vember 2008, when the new machine was put in place. Later,
he worked 1 week on the day shift and was then returned to the
night shift. Diaz stated that about once per month while he was
working on the night shift he asked Garlasco for a transfer to
the day shift. On July 29, he gave Garlasco a letter requesting a
change to the day shift due to his health and personal issues.
Diaz’ request was denied and he continued working on the
night shift.

1 Following the close of the hearing, pursuant to a motion made dur-
ing the hearing, I received in evidence as General Counsel’s exhibits
the transcripts of three video recordings shown to employees. They will
be discussed below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2224
Sometime thereafter, Diaz spoke with a friend regarding
Workers United and contacted Union’s agent, Jorge Deshan.
Inasmuch as the Respondent had a collective-bargaining
agreement with Local 1964 which was not due to expire until
February 28, 2010, Deshan advised Diaz that Workers United
could not file a petition for an election until shortly before the
contract’s expiration.
Deshan further advised Diaz that he wanted to meet with him
and his coworkers on October 26, 2009, at the Caridad Restau-
rant which was located about two blocks from the Employer’s
facility. Diaz told his fellow workers about the meeting.
Diaz stated that while walking to the restaurant for the meet-
ing, he noticed Garlasco sitting in a car, and waved to him but
Garlasco did not respond.2 Diaz phoned Deshan and told him
that he saw Garlasco nearby. When Diaz arrived at the restau-
rant, union agents told the employees present that they should
leave that establishment by the rear exit and enter another res-
taurant through the rear door. They did so and the meeting was
held at the second restaurant, during which Diaz noticed Gar-
lasco walking in front of that restaurant.
As the meeting ended, employee Guzman left to return to
work. About 30 minutes later, she returned and, according to
Diaz, advised those present that she had been fired by Perlson
“because she had participated in the meeting.” Union Agent
Marcia Marchelli testified that Guzman told the group that
Garlasco fired her, explaining that “maybe he called Gary
[Perlson] and told him that I was at the meeting.” Marchelli
corroborated Diaz’ testimony concerning the employees’ move
from one restaurant to the other, adding that during their trans-
fer, Garlasco followed them to the second restaurant.
Garlasco testified that he drove to the area of the restaurant
that day in a borrowed car because his car had been stopped by
the police earlier for having a faulty light. He was in the area to
purchase parts for his car and buy lunch. He noted that this is
the area he usually visits for car parts and lunch. Garlasco stat-
ed that his workday begins at about 6 a.m., and that when he
arrived in the area at about 3 p.m. he was on his usual lunch-
break. He conceded that no one would recognize the car he
drove that day because it was not his vehicle. He stated that as
he was eating lunch in the car, he observed several union agents
exit their car, but did not see any employees of the Employer in
the area.
Garlasco stated that as he drove back to the facility, he saw a
Miron & Sons, Inc. (Miron) truck, and one of its employees.3
At that time he believed that the Union was in the area to speak
to Miron’s employees about their upcoming contract negotia-
tions with the Union.
Garlasco denied knowing that there would be a union meet-
ing at the restaurant that day, and also denied being in the area
in order to discourage employees from meeting with the Union.
However, he admitted being told by certain employees, whose
names he could not recall, that employees were signing cards
for the Union.

2 Diaz testified inconsistently that Garlasco was standing at a train
station.
3 Miron & Sons, Inc., is a competitor of the Respondent.
2. The alleged bribe and the physical assault
a. Diaz’ version
Diaz stated that 2 weeks after the restaurant meeting with the
Union, on Friday, November 6, Day Manager Nelson Astacio
told him that Garlasco wanted to speak with him regarding his
work shift, and asked him to go to Garlasco’s office.4 Diaz
reported to the office and asked that someone be present with
him, but Garlasco refused. Diaz testified that Garlasco told him,
“[W]e’re here to talk about your shift. Forget about that. I really
want to talk to you about the union. I really want you to stop
talking about Union here. But I’m going to pay you, I’m going
to give you” and then he wrote on a piece of paper the numbers
$1000, $2000, and $3000, followed by a question mark. Gar-
lasco then asked him, “[W]hat is your price and don’t speak
anymore of Union,” offering to pay him in cash. Garlasco
asked Diaz to tell him the next day what his “price” was. Diaz
then told Garlasco that he wanted an interpreter “just to make
sure,” but Garlasco said that an interpreter was not necessary
since he “knew enough English.” Diaz did not respond to Gar-
lasco’s offer, and went home.
Garlasco denied offering money to Diaz to induce him to
stop campaigning for Workers United. He denied writing an
amount of money on a paper, but conceded that he wrote the
times of Diaz’ new, morning shift.
Diaz stated that when he arrived at work the following day,
Saturday, November 7, Garlasco asked him to report to his
office at the end of his workday so that they could speak about
his work shift. At the end of the day, Diaz went to Garlasco’s
office where they spoke alone. Garlasco said, “[G]ive me your
price.” Diaz responded, “I don’t have a price.” Garlasco then
said that “if the union comes in we will close the company.”
Garlasco did not deny making this threat.
Diaz asked, “[W]hat you want me to do?” Garlasco told him,
“[Y]ou have to leave,” and Diaz left his office and the plant,
and walked home. Supervisor Astacio came up to him and told
him that Gary Perlson, the Respondent’s owner, wanted to
speak to him. Astacio did not deny following Diaz and asking
him to return to the plant.
Diaz returned to the facility and went to the office with
Astacio who acted as interpreter with him and Perlson. Garlas-
co was present. They all stood close to each other, with Diaz
being between 2 and 4 feet from Perlson. Diaz quoted Perlson
as asking, “[W]hy do you want to do this to my company?”
Diaz replied that “I want my coworkers and I to be okay.” Perl-
son responded, “Jose, I’ve kind of turn[ed] my head on a lot of
things, that you’ve done.” Diaz said, “I want better representa-
tion.” Perlson then said that he would change his shift next
week.
Diaz then asked Perlson if he was changing his shift “be-
cause Park Central Hotel is leaving?”5 Perlson and Garlasco
then asked how he knew that, and Diaz replied, “I just know it.”
Perlson then said, “[W]ell, next week, I’m going to change your

4 Astacio is an admitted supervisor.
5 The Park Central Hotel was a major account of the Respondent.
Diaz learned from a worker at competitor Miron & Sons, Inc., that the
account was put out for bids and Miron won the bid.
CARNEGIE LINEN SERVICES 2225
shift, but you’re not going to be washing but you’re going to
come and clean.” Diaz replied that “I have no problem with
that, but you’re going to pay me the same.” Perlson answered,
“[W]ell, you in fact are going to be cleaning then. But you’re
not going to be cleaning the company. You’re going to be
cleaning my ass with your mouth, mother f—cker, son of a
b—tch, stupid. Leave my company.” Diaz then related that
Perlson removed the lid from a cup of coffee that he was hold-
ing and threw it in his face. Garlasco and Astacio then escorted
Diaz from the plant.
Outside the plant, Diaz phoned Marchelli, the Union’s or-
ganizer and told her what happened. Diaz also told her that he
felt ill, that coffee had entered his left eye in which he then had
no vision, and, as a diabetic, he went into shock. Marchelli
advised him to call the police, which he did. When the police
arrived, Diaz told them that Perlson cursed him, threw hot cof-
fee in his face, and fired him. The police left Diaz on the street
and entered the plant. They returned and told Diaz that he had
not been discharged, that they were told that it was “just [an]
accident,” and Perlson asked that he return to the plant so that
they could “speak calmly.”
Diaz stated that he entered the plant with the police and Perl-
son told him, “I understand how you’re feeling right now. It
was just an accident.” Perlson said that he had not been fired,
and that the Employer would be responsible if he stayed out of
work and would also pay his bills. Diaz asked the police to
check the surveillance cameras, but Perlson answered that the
cameras had not been working for about 2 weeks. Diaz then
said that he felt badly. Perlson told him to call an ambulance
and that he would “take responsibility for any expenses and
days missed from work.”
Diaz testified that he was “confused” as to whether he was
still employed, since Perlson first told him to leave and that he
did not want him in the Company, but later, with the police
present, Perlson told him to take as much time off as necessary.
The police called an ambulance and Diaz went to the hospi-
tal where he was seen by a physician who made a written diag-
nosis of left corneal abrasion. Upon leaving the hospital, Diaz
called Marchelli who asked him to meet with her at the Union.
On Monday, November 9, Diaz saw a physician who gave
him a note that he could return to work the next day. That day,
November 9, Diaz visited the plant and gave the note to Garlas-
co, who told him that he had to first call Local 1964 before he
attempted to return to work. He left and called Marchelli who
advised him to write a note as to what happened. His written
description of the events, dated November 9, noted especially
that Perlson “attacked me physically, throwing a large quantity
of hot coffee in my face. I had done nothing wrong. Gary [Perl-
son] was angry with me for exercising my rights, that’s all.”
The following day, November 10, Diaz returned to work
where he was told by Floyd Ellis, the evening manager, that
Perlson “did not want me in the company. That I was fired.
And to leave immediately.”
b. The Respondent’s version
Garlasco testified that Diaz wanted to return to the day shift
when the Employer was in the process of purchasing and in-
stalling a large machine which would permit it to reduce the
number of washing shifts from three to two. After its installa-
tion, the Employer used the new machine for 1 week, during
which Diaz was transferred to the day shift, but then the ma-
chine was not working properly, and Diaz and the other seven
night-shift employees were returned to the night shift until the
machine was operating satisfactorily.
Garlasco testified that on November 7, he met with Diaz in
his office to inform him that he would be transferred to the day
shift beginning on Monday, November 9. Diaz told him that he
knew why he was making the change. Garlasco replied that the
change was being made because the new machine was then
operational. Diaz answered that the change was being made
because the Employer was losing the Park Central Hotel ac-
count. When Garlasco expressed disbelief, Diaz told him that
“Miron” told him.6 Garlasco asked how Diaz knew such infor-
mation.
At that point, he and Diaz left the office and met Perlson,
who was walking toward them at the bottom of the stairs near a
production area. Garlasco stated that the noise from the ma-
chines was very loud and he did not know if the three or four
workers in the general area could hear the conversation.
Astacio joined the group. Perlson asked Garlasco if he coordi-
nated the shift changes. Garlasco related that he told Diaz about
the change of shifts, but that he mentioned some “very disturb-
ing news” about the Employer’s losing the Park Central Hotel
account. Garlasco mentioned that he was not aware that the
account was in jeopardy. Perlson mentioned that the contract
was let for bids 1-1/2 weeks before. All four men stood close to
each other.
Perlson then asked Diaz how he knew about the Park Central
account. Garlasco interrupting, saying that Diaz said that Miron
told him. A “very loud, back and forth” argument ensued be-
tween Perlson and Diaz, with Perlson asking him if he was
working for Carnegie or Miron, adding that Miron was a com-
petitor, and he (Diaz) shouldn’t know anything about this.”
Then Perlson said to Garlasco, “I can’t have that guy working
here if he knows this information.”
Garlasco stated that Diaz “lunged” at Perlson, making a for-
ward motion with his hands, but did not make contact with
Perlson. Perlson then stepped back, raised his hands in a defen-
sive motion, and the coffee in the uncovered coffee cup that
Perlson was holding was projected forward, hitting Diaz,
Astacio, and Garlasco. The cup fell to the floor, hitting Garlas-
co’s pants. Garlasco then escorted Diaz from the building.
Garlasco denied that Perlson threw the coffee at Diaz.
The incident report prepared by Garlasco after the incident
differs from his testimony. The report stated that Perlson told
Diaz that the Employer was planning to implement the new
work schedule, whereas Garlasco testified that he told Diaz of
the change in shifts. In addition, Garlasco’s report stated that
coffee was spilled on Perlson and Diaz, whereas Garlasco testi-
fied that the coffee also hit him and Astacio. Finally, the report
states that he and Astacio escorted Diaz from the building,
whereas Garlasco testified that only he walked out with Diaz,
and that Astacio walked away with Perlson in a different direc-
tion.

6 Miron Marcus is the owner of Miron.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2226
Garlasco testified that he did not know if the plant’s surveil-
lance cameras covered the area of the dispute, but even if they
did, those cameras had not been working for several weeks.
However, Garlasco testified that surveillance cameras were
very important because garments being cleaned are worth
“thousands and thousands” of dollars—“you just want to make
sure that everybody is seen and is taken care of.”
Garlasco further testified that Diaz asked him if he had been
discharged. Garlasco replied that he had just “attacked” the
owner of the Company and he had “inside information” that the
Employer was about to lose an account—information that no
one else was aware of. “I believe you’re fired, but I’m going to
call” Local 1964. He also told Diaz to call that union.
Astacio testified that he was present when Garlasco and Diaz
spoke about the shift change and Diaz mentioned that Carnegie
would be losing the Park Central Hotel account. A “real loud”
argument ensued concerning how Diaz knew that the account
would be lost. At that time, Perlson told Diaz that people “giv-
ing information to another company can no longer work for the
employer.” He explained that the information that Diaz gave
was that Diaz knew that the Park Central account was going to
Miron. Astacio stated that “I think Diaz tried to approach Gary
[Perlson] with a lunging forward motion.” Perlson stepped back
and, putting his hands forward, dropped the uncovered coffee
cup, spilling the coffee on him, Perlson, and Garlasco.
Garlasco testified that Diaz was discharged because he at-
tacked the Respondent’s owner, and because he possessed
“confidential” information concerning the Employer’s loss of
the Park Central account, information known only to Miron and
Perlson.
Garlasco conceded that an employee of Miron would know
the identity of Miron’s accounts because the laundry bins are
labeled with the account’s name, and that such an employee
could have advised Diaz that Park Central was a new account
of Miron. However, Garlasco maintained that Diaz could con-
trol whether the Respondent’s Park Central account could have
become jeopardized by the manner in which he washed the
linens. Garlasco claimed that “I have my suspicions” that the
loss of the account was related to Diaz’ duties, explaining that
an employee intent on such a course of conduct has the “ability
to jeopardize how we wash and how we process and how we
handle that account.” He further noted that if “somebody want-
ed us to lose an account and was in the position, such as Jose
[Diaz], it would very easily be tampered with.” Garlasco admit-
ted, nevertheless, that there was no evidence in October and
November 2009, that any employee was tampering with the
laundering work.
Garlasco further stated that he did not discipline any em-
ployee in the past for speaking to a competitor, but that doing
so, under these circumstances, is a dischargeable offense, and
that the worker would be considered “at fault” for possessing
information from a competitor relating to the Employer’s loss
of an account, particularly where the account was lost in a
“blind bid” process.
Garlasco denied that Diaz was fired because he helped
Workers United in its effort to organize the employees of the
Employer.
Local 1964 filed a grievance in Diaz’ behalf. The arbitrator’s
decision noted that Garlasco testified there that it was his deci-
sion to terminate Diaz immediately. However, at the Board
hearing, Garlasco stated that Perlson fired Diaz by announcing
that he could not have him working there.
Garlasco, when asked why Perlson did not call the police if
Diaz lunged at him, stated that “an incident like this in compar-
ison to some of the other things that go on at work, if I were to
call the police every time we had incidents of something like
this, somebody getting bumped and not liking it, the police
might as well just set up, stand outside and wait for us to ask
them to come in.” Later, in response to a leading question by
Respondent’s counsel, Garlasco said that there was no need to
call the police since Diaz had already done so, and they ap-
peared at the plant within minutes.
Perlson did not testify at the hearing. A criminal charge was
brought against Perlson in the Bronx County Criminal Court
with respect to the November 7 incident. Perlson asserted his
Fifth Amendment right to refuse to testify. Pursuant to Section
102.31 (c) of the Board’s Rules and Regulations, I recommend-
ed that the Board seek the approval of the Attorney General for
the issuance of an order requiring him to testify. The Board
denied my recommendation, advising that the parties may pre-
sent whatever admissible evidence was available and make any
appropriate legal arguments concerning what, if any, inferences
should be drawn based on the assertion of the privilege against
self-incrimination. The General Counsel’s brief requested that I
make an adverse inference from Perlson’s failure to testify.
3. The grievance meeting and arbitration hearing
On November 12, a grievance session was held at the office
of Local 1964. Present were its business agent, Glenn Blicht,
Garlasco, and Diaz.
Diaz related the events of November 6 and 7, including that
Garlasco offered him money as a “payoff” not to bring in the
Union, and that Perlson threw coffee in his face. Perlson denied
throwing coffee at Diaz, adding, “I don’t want him in this com-
pany. He’s a dangerous person. And my machines are worth
millions. I don’t want him here.”
Perlson mentioned four prior instances of Diaz’ misconduct.
Garlasco stated at the Board hearing that Diaz was not disci-
plined for any of these incidents. They are as follows:

1. July 31, 2009: The incident report stated that “Diaz
loaded a red blanket into the washer with white items
causing the white items to be dyed red. The report stated
that Diaz failed to perform his job properly and the system
had to be shut down for 4 hours. This misconduct cost the
company thousands of dollars.” At the Board hearing, Di-
az claimed that the machine was shut down for only 20
minutes. He stated that, as a result of the incident, he was
denied a regular bonus and was placed on probation for
one month. He stated that he was first shown this incident
report at the November 12 grievance meeting.
2. August 2, 2009: the incident report stated that “Diaz
involved in a fight with Tyrone. Surveillance video shows
Diaz attacking Tyrone. The police were called and Diaz
was taken to the hospital.” Diaz’ explanation at the Board
hearing was that Tyrone nearly touched him with a cart he
CARNEGIE LINEN SERVICES 2227
was pushing. Diaz warned him to be careful. Tyrone
laughed at him and Diaz told a friend that “that mother-
fucker” threw a cart at him. Tyrone then approached him,
angered because Diaz described him that way, and they
both fought. Diaz slipped, fell to the floor and became un-
conscious. He was taken to the hospital. Diaz stated that
the first time he saw this report was at the grievance ses-
sion.
3. October 24, 2009: The incident report stated that
“Diaz had a verbal altercation with Rigoberto Guardado
(Rigo).” At the Board hearing, Diaz claimed that Rigo dis-
played a knife and Diaz called the police. When the police
arrived, no weapon was found. Diaz first saw this incident
report at the grievance hearing. Garlasco did not discuss
this incident with him and did not show him the report.
4. October 28, 2009: The incident report stated that
“Diaz became threatening to employee Juan (Papo)
Cuadrodo. Reason unknown.” Garlasco’s written explana-
tion of the incident was that, as Papo was unloading his
truck, Diaz approached him and complained about the way
in which Papo was working. Diaz became very loud and
verbally threatening. Diaz said that he was “going to get
Papo.” Diaz’ explanation at the Board hearing was that
Papo accused him of telling his co-workers that he (Papo)
told Perlson that the workers were organizing for the Un-
ion, and they argued about that. Garlasco testified at the
Board hearing that he heard from several employees that
Workers United was collecting cards form the Employer’s
workers, but that this confrontation involved Diaz object-
ing to the way in which Papo unloaded a truck.

An arbitration hearing was held on February 22, 2010, which
was attended by Blicht and the attorney for Local 1964. Garlas-
co was the sole witness. Diaz had attempted to withdraw the
grievance on the ground that Local 1964 could not represent
him fairly because he was fired for attempting to bring in an-
other union. The request to withdraw the grievance was denied
by the arbitrator who decided to uphold Diaz’ discharge, find-
ing that the Employer had just cause to fire him based on Diaz’
confronting and lunging at Perlson.
The arbitrator’s decision noted that Garlasco testified there
that it was his decision to terminate Diaz immediately, whereas
at the Board hearing, Garlasco stated that Perlson announced
that he could not have Diaz working there. The arbitrator’s
decision also stated that Diaz’ prior misconduct did not play a
part in the decision to discharge him.
4. The events of November 2009
On November 26 and 27, 2009, Diaz distributed flyers in
front of the plant with Union Agents Marchelli and Alvero
Arroyo. Marchelli and Diaz testified that Garlasco emerged
from the plant and approached them. Garlasco asked Alvaro if
he knew what he was doing. Arroyo replied that he did.
Marchelli stated that Garlsaco told them to leave since they
were on private property, and said that he would call the police.
Marchelli stated that before the police arrived, she crossed the
street and handed a flyer to an employee driving a Carnegie
truck. While she was standing on the corner waiting to cross, a
car attempted to run her over. She dodged the car and crossed
the street. Diaz identified the driver as Perlson.
The police arrived and the union agents told them that they
were campaigning for the Union. According to Diaz, the police
told him that the Employer called, complaining that they were
throwing papers on the floor. Diaz told them that Garlasco
crumpled the papers he had in his hand, saying that he wanted
to read them.
Diaz testified that Perlson approached him and asked him,
“[Y]ou didn’t have enough with the coffee? Do you want more
coffee?” Marchelli’s version is that Perlson asked Diaz “do you
remember the coffee in your face?”
5. The organizing campaign
As set forth above, nearly 1 month after Diaz’ discharge, the
Union filed a petition for an election on December 4, 2009, and
an election was held on January 20, 2010, which was won by
Local 1964. During the course of the organizing campaign, the
Respondent showed three videos to its employees, prepared by
a consulting firm, which urged the workers to vote against the
Union. The videos stated as follows: “Many unionized indus-
tries are trying to survive, and as a result of company unioniza-
tion, job loss is not unusual; they end up shutting their doors
. . . . Certainly, the union is not in the future of this organiza-
tion, but you are. That is why your vote is of utmost importance
in these elections. Choose intelligently and vote ‘No.’”7
Analysis and Discussion
As set forth above, certain complaint allegations were settled
pursuant to an informal settlement agreement. Accordingly, the
only complaint allegations before me are (a) the alleged offer of
money to Diaz to cease his union activities; (b) the alleged
infliction of bodily injury on Diaz in response to his union ac-
tivities; and (c) whether the Respondent discharged Diaz be-
cause he engaged in union activities.
I. THE ALLEGED OFFER OF MONEY TO DIAZ TO CEASE HIS
UNION ACTIVITIES
As set forth above, Diaz testified that on November 6, he
was told by Garlasco in his office that he wanted him to cease
talking about the Union, and then, in writing, offered him a
cash payment of $1000 to $3000. Garlasco told him to name his
“price” the following day. At the end of his work shift the next
day, November 7, Diaz was asked by Garlasco for his “price”
and Diaz said that he did not have a price. Diaz then went
home.
Garlasco denied offering a bribe to Diaz to cease speaking
about the Union and also denied writing a sum of money on a
piece of paper. However, he conceded writing the time of Diaz’
new, morning shift on the paper.
I credit Diaz’ testimony. Diaz gave precise, specific testimo-
ny about an event that would certainly have made an impres-
sion on him. The fact that Diaz did not give Garlasco an answer
at the first meeting and then was asked for his response at a
second meeting the next day lends credence to Diaz’ testimony
that he was offered a bribe.

7 GC Exh. 47, pp. 10, 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2228
It is significant that, after refusing Garlasco’s offer on No-
vember 7, Diaz went home, but was called back by Supervisor
Astacio to meet with Perlson. Astacio did not deny asking Diaz
to return to the plant. Perlson then asked Diaz why he was “do-
ing this to my company” and Diaz replied that he wanted him
and his coworkers to benefit from representation. Perlson then
subjected Diaz to a highly offensive comment, and threw coffee
in his face.
A proper inference may be made, which I make, that after
Diaz left the plant after having refused Garlasco’s offer, Gar-
lasco informed Perlson that Diaz could not be bribed to cease
his activities on behalf of the Union. Diaz was then called back
to the plant to face Perlson’s fury. This sequence of events also
supports Diaz’ testimony that he was the subject of an attempt-
ed bribe.
I cannot credit Garlasco’s testimony. Diaz was familiar with
the morning shift’s hours, having worked that shift for 2 years.
Accordingly, it was unnecessary for Garlasco to have written
the hours of the shift for Diaz. He could have simply told Diaz
the hours of the new shift. In addition, Diaz was apparently
selected for an individual meeting with Garlasco. There is no
evidence that any of the other members of the night shift who
would be transferred on the next workday were the subject of a
similar one-on-one meeting with the general manager. Accord-
ingly, I credit Diaz’ testimony that Garlasco wrote the amount
of the attempted bribe on a piece of paper.
I accordingly find and conclude that, as alleged, the Re-
spondent offered money to Diaz to cease his union activities in
violation of Section 8(a)(1) of the Act. Storall Mfg. Co., 275
NLRB 220, 233 (1985); Roth’s IGA Foodliner, Inc., 259 NLRB
132, 133 (1981).
II. THE ALLEGED DISCRIMINATION AGAINST DIAZ
The complaint alleges that the Respondent inflicted bodily
injury on Diaz in response to his union activities, and dis-
charged him because of those activities.
A. The General Counsel’s Case
Diaz engaged in activities on behalf of the Union. I find, as
set forth above, that Diaz contacted the Union in October 2009,
in response to the Respondent’s repeated rejections of his re-
quests to return to the day shift. He spoke to his coworkers
about a union meeting to be held at the Caridad Restaurant on
October 26.
I also find that the Respondent possessed knowledge of Di-
az’ union activities. Garlasco was concededly in the area of the
restaurant on the day of the meeting, and also admitted seeing
union agents nearby. Diaz credibly testified that he saw Garlas-
co in a car near the restaurant and waved at him, and that he,
his coworkers and the union agents took evasive action in order
to avoid being seen by Garlasco, by exiting the rear door of one
restaurant and entering the back door of another eatery.8

8 I recognize that Diaz gave somewhat contradictory testimony re-
garding Garlasco’s location when he waved at him. Nevertheless, I do
not believe that this is fatal to a finding that his testimony, as to the
critical events concerning his meetings with Garlasco and Perlson, is
credible.
Garlasco denied being in that area to spy on the union meet-
ing and also denied seeing any of the Respondent’s employees
there. However, his presence in a borrowed car and eating
lunch in that car raise some suspicions as to his purpose in be-
ing in the area at that time. First, it is odd that Garlasco chose to
eat lunch in a car 9 hours after he arrived at work at 6 a.m. Fur-
ther, Union Agent Marchelli’s testimony that Garlasco fol-
lowed them from one restaurant to the other, and Diaz’ testi-
mony that he saw Garlasco walking in front of the second res-
taurant make an inference permissible that Garlasco learned
about the meeting and was there to note who was in attendance.
Knowledge of Diaz’ union activities is also established by
Diaz’ credited testimony and my finding, above, that Garlasco
offered him a bribe to cease his union activities.
The General Counsel has proven that the Respondent pos-
sessed animus toward Diaz’ union activities. As set forth above,
I have found that the Respondent offered him money to cease
his union activities, and I have also credited Diaz’ undenied
testimony that, in the course of that conversation, Garlasco told
him that “if the union comes in we will close the company.”
That threat, which is a violation of the Act, was alleged in the
original complaint and has been settled. Accordingly, I make no
separate finding that the threat violated Section 8(a)(1) of the
Act. However, it may be used to show union animus by the
Respondent.
In addition, the Respondent mounted an antiunion campaign
prior to the election in which it urged its employees to vote
against the Union and showed videos to them. The videos stat-
ed, in part, that job loss and plant closure are not unusual re-
sults of unionization, and that the Union “is not in the future of
this organization.” The Board has held that “an employer’s
expression of antiunion comments . . . while not themselves
violative of the Act, nevertheless did establish animus toward
its employees’ union activities.” Lampi LLC, 327 NLRB 222,
222 (1998); Affiliated Foods, Inc., 328 NLRB 1107, 1107
(1999).
The General Counsel argues that additional animus toward
the Union has been proven by the unlawful discharge of Guz-
man. On this record, I cannot find that it has been proven that
Guzman was unlawfully terminated. As set forth above, Diaz
gave hearsay testimony that Guzman returned to the restaurant
and told those present that she had been fired for attending the
union meeting. However, Marchelli stated that Guzman had
been fired perhaps because Garlasco told Perlson that she had
been at the meeting. Guzman did not testify. Accordingly, this
record does not support a finding that Guzman was fired unlaw-
fully.
It is significant that minutes after Diaz refused Garlasco’s of-
fer of a bribe to cease speaking about the Union, he met with
Garlasco and Perlson during which Perlson threw a cup of cof-
fee in his face and then discharged him. The close timing be-
tween the threat to close the Company, the offer to bribe Diaz
and the assault on Diaz and his firing strongly support a finding
that the Respondent was motivated by Diaz’ union activities in
taking these actions against him.
The Respondent denies that Perlson intentionally threw cof-
fee into Diaz’ face. Garlasco and Astacio testified that follow-
ing a heated argument between Perlson and Diaz concerned
CARNEGIE LINEN SERVICES 2229
with Diaz’ knowledge of the loss of the Park Central account,
Diaz lunged at Perlson who defensively stepped back and, in a
defensive motion, raised his hand which held the coffee and
spilled the coffee over Diaz and the others present.
I credit Diaz’ testimony concerning this incident. He careful-
ly quoted the outrageously hostile remarks made to him by
Perlson, words which undoubtedly remained in his memory. He
also precisely described how Perlson took the lid off the coffee
cup and threw its contents in his face. I cannot credit the testi-
mony of the Respondent’s witnesses. As set forth above, the
incident report prepared by Garlasco differed from his testimo-
ny regarding who was hit by the coffee and who escorted Diaz
from the building. There was no evidence that anyone else was
hit in the face with the coffee although all four men were stand-
ing very close to each other. Rather, Garlasco stated that when
the cup fell, his pants were stained by the coffee. Diaz’ eye
injury was immediately confirmed by a physician at the hospi-
tal he visited immediately after the incident.
The events immediately following that incident also lend
credence to Diaz’ testimony. Thus, when Diaz left the plant he
called the police and told them that Perlson had cursed him,
thrown coffee in his face and fired him. Diaz’ contemporane-
ous, written account of the incident is consistent with his testi-
mony. Further, when Diaz entered the plant with the police
officers, he asked them to check the surveillance cameras. That
request establishes that Diaz sought to obtain documentation of
Perlson’s attack. If he had indeed lunged at Perlson it is not
likely that he would ask the police to obtain proof of his alleged
assault on Perlson. Significantly, Perlson responded that the
cameras had not been working for about 2 weeks. At the hear-
ing, Garlasco said that they had not been functioning for “sev-
eral” weeks. Perlson did not tell the police, as Garlasco testified
at hearing, that he was not certain whether the altercation was
in an area covered by the cameras. Thus, it is clear that the
cameras did record the event at issue. In addition, if the camer-
as were as important as Garlasco claimed they were—the gar-
ments were worth thousands and thousands of dollars and “you
just want to make sure that everybody is seen and is taken care
of,” it is unlikely that the Respondent would have let the cam-
eras go unrepaired for weeks.
Perlson’s response to the police also supports Diaz’ version
of the incident. Thus, according to Diaz’ credited testimony,
Perlson told him and the police that the coffee incident was
“just an accident,” that Diaz had not been fired, and that he
could take time off to recover, and the Respondent would pay
his bills. Clearly, if Diaz had lunged at Perlson and had been
the actual aggressor in the confrontation, Perlson would have
informed the police that the incident was Diaz’ fault, and would
not have offered to remedy the situation as he did. It must be
concluded that, at that time, Perlson knew that he was responsi-
ble for the physical assault on Diaz and, at least with the police
present, sought to minimize the damage he caused by offering
to give Diaz time off from work and pay his physician’s bills.
Perlson’s remorse apparently disappeared 3 days later when
Diaz returned to the plant and was told that he had been fired.
In addition, the mutually corroborative testimony of Diaz
and Marchelli concerning their distribution of flyers in front of
the plant in late November, support a finding that Perlson inten-
tionally threw the coffee at Diaz. Perlson approached them on
the street and made a reference to the coffee incident, asking
Diaz if he “did not have enough coffee, do you want more cof-
fee” or “do you remember the coffee in your face?”
I accordingly find and conclude that the Respondent, by
Perlson, inflicted bodily injury on Diaz by throwing coffee in
his face. Extreme Building Services Corp., 349 NLRB 914, 914
(2007); Staten Island Bus Co., 312 NLRB 416, 416 (1993).
Diaz’ discharge clearly grew out of his refusal to accept a
bribe to cease his union activities minutes before the assault.
Perlson’s upset at Diaz was manifested by his throwing a cup of
coffee in his face and then, either that day or within the next
three days, discharging him. The close timing of the offer of
money to Diaz to cease speaking about the Union, his refusal to
accept a bribe, his telling Perlson that he was engaging in union
activities in order to protect himself and his coworkers and that
he wanted better representation, Perlson’s cursing Diaz and
throwing coffee at him, followed by his discharge, all support a
finding that the discharge was motivated by the Respondent’s
animus toward Diaz’ for engaging in union activities.
B. The Respondent’s Defenses
The Respondent asserts, as set forth above, that Perlson did
not throw coffee at Diaz, and that it did not discharge him be-
cause of his union activities. Rather, the Respondent contends
that it fired Diaz because he possessed confidential information
known only to Perlson that the Employer was losing the Park
Central account to Miron, a competitor, and because he lunged
at Perlson during their argument on November 7.
Diaz’ source of information was a friend who worked at
Miron. There is no allegation that he improperly obtained that
information from any other source. The laundry bins at Miron
contain the names of Miron’s accounts, and Diaz was told by
his friend that the Park Central account was obtained by Miron.
Accordingly, the information possessed by Diaz was not confi-
dential. Indeed, the Respondent’s laundry bins are also labeled
with the names of the accounts so that the laundry would not be
mixed with other hotels’ wash.
Perlson was upset that his worker possessed this information.
But, nevertheless, it is apparent that the Respondent would not
have discharged Diaz for possessing this information because
Diaz did nothing wrong in obtaining it or mentioning it to Perl-
son. I find that Garlasco’s credibility was harmed by his exag-
geration of Diaz’ alleged misconduct in this regard. He specu-
lated that he was “suspicious” that Diaz intentionally caused the
Park Central account to be lost by tampering with the laundry.
However, Garlasco conceded that there was no evidence to
support such a claim. See Troxel Co., 305 NLRB 536, 536
(1991), where the Board rejected the employer’s argument that
it fired an employee because it was concerned that her “attitude
created a risk that in her capacity as a quality control inspector
she might allow defective products to pass through or even
sabotage its operations” where there was no evidence that the
worker was inclined toward sabotage.
As to the Respondent’s other defense, that Diaz was dis-
charged for lunging at Perlson during their argument, as set
forth above, I discredit the testimony of Garlasco and Astacio
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2230
as to this incident.9 I have found that Diaz did not lunge at Perl-
son. Garlasco and Astacio denied that Diaz made contact with
Perlson. It would seem that if Diaz was intent on causing harm
to Perlson he would physically attack Perlson rather than lunge
at him. They were face-to-face. Therefore, I cannot credit their
testimony that Diaz lunged at Perlson.
Even assuming that Diaz lunged at Perlson, it is significant
that, in part of his testimony, Garlasco, when asked why he did
not call the police immediately, stated that he did not consider
it to be that serious—“an incident like this in comparison to
some of the other things that go on at work, if I were to call the
police every time we had incidents of something like this,
somebody getting bumped and not liking it, the police might as
well just set up, stand outside and wait for us to ask them to
come in.”10 Accordingly, a finding may be made that, at least
initially, the Respondent did not regard Diaz’ lunging at Perl-
son to be a dischargeable offense.
That finding is supported by Perlson’s comments immediate-
ly following the incident. He told the police and Diaz that he
had not been discharged, that he should take some time off and
that the Respondent would pay his medical bills. Diaz’ actions
on November 10 when he returned to work are consistent with
his belief that he had not been fired. Thus, he returned to work
when his physician said he could and was told when he arrived
that he had been fired.
Perlson did not testify, asserting his privilege against self-
incrimination pursuant to the Fifth Amendment. The General
Counsel asks that I draw an adverse inference from his failure
to testify. In Baxter v. Palmigiano, 425 U.S. 308, 318 (1976),
the Supreme Court stated that “the Fifth Amendment does not
forbid adverse inference against parties to civil actions when
they refuse to testify in response to probative evidence offered
against them. . . .”
Here, I need not draw an adverse inference from Perlson’s
failure to testify. I find that the credited testimony and circum-
stantial evidence present in the record are sufficient to support
the finding of violations which I make, even absent Perlson’s
testimony. Thus, I have discredited the testimony of Garlasco
and Astacio as to the critical events at issue here—the offer of
money to Diaz so that he would cease speaking about the Un-
ion, and the incident in which Perlson threw coffee in Diaz’
face.
Analysis
The Respondent discharged Diaz based on his conduct at the
November 7 meeting with Perlson. It is clear that the meeting
was an outgrowth and a continuation of Garlasco’s unlawful
attempt to bribe him the previous day. Thus, on November 6,
Garlasco offered money to Diaz in an attempt to stop him from

9 No other misconduct committed by Diaz in the course of his em-
ployment was considered in making the decision to discharge him.
Indeed, according to Garlasco, no discipline had been given to Diaz as
a result of prior instances of misconduct.
10 I note that later, in response to a leading question from his coun-
sel, Garlasco stated that an immediate call to the police was not neces-
sary since Diaz had already called them and they were at the scene
within minutes. Significantly, the Respondent’s witnesses did not testi-
fy that they told the police that Diaz had lunged at Perlson.
speaking about the Union. Diaz did not respond to the offer,
and the next day, November 7, at the end of his shift, Diaz was
again asked by Garlasco how much money he wanted to cease
his activities on behalf of the Union. Diaz said that he was not
interested in money. He left work and was approached by Su-
pervisor Astacio who asked him to return to the plant to speak
with Perlson.
At that meeting, Perlson asked Diaz, “[W]hy do you want to
do this to my company” and Diaz replied that he wanted him-
self and his coworkers to be “okay” and he wanted better repre-
sentation. Perlson announced that Diaz’ shift would be changed
the following week at which point Diaz mentioned that he
knew that the Respondent had lost the Park Central account.
Perlson then made a highly offensive remark to Diaz, cursed
him and threw coffee in his face. Thereafter, Diaz was dis-
charged.
The meetings between Garlasco and Diaz on November 6,
and continuing on November 7 involved Diaz’ activities in
speaking about the Union. The Respondent violated the Act in
those meetings by offering him money to cease his activities on
behalf of the Union. Diaz engaged in union activities by refus-
ing to accept an offer of money to cease speaking about the
Union.
The meeting with Perlson also involved Diaz’ union activi-
ties because Perlson asked him why he was doing what he was
doing “to my company,” a clear reference to his activities on
behalf of the Union which he believed would harm the Re-
spondent. Diaz’ response that he wanted to help his coworkers
and sought “better representation” also involved the exercise by
Diaz of protected activity in defending his right to engage in
union activities.
Because it is undisputed that Diaz’ discharge was precipitat-
ed by his conduct at the November 7 encounter with Perlson,
the appropriate analysis is whether the conduct for which he
was discharged was initially protected under the Act and, if so,
whether he lost that protection at any point. Atlantic Steel Co.,
245 NLRB 814, 816 (1979); Alcoa, Inc., 352 NLRB 1222, 1226
(2008). See Hahner, Foreman & Harness, Inc., 343 NLRB
1423, 1425 fn. 8 (2004).
In Atlantic Steel, the Board identified four factors to be bal-
anced in making that determination: (1) the place of the discus-
sion; (2) the subject matter of the discussion; (3) the nature of
the employee’s outburst; and (4) whether the outburst was, in
any way, provoked by the employer’s unfair labor practices.
The Act allows some latitude for impulsive conduct by em-
ployees in the course of protected concerted activity, but, at the
same time, recognizes that employers have a legitimate need to
maintain order. The balance between these policy concerns lies
at the heart of the Atlantic Steel analysis.
I must note, at the outset, as set forth above, that the evi-
dence does not support a finding that Diaz lunged at Perlson or
that he possessed confidential information concerning the loss
of the Park Central account. But even assuming that he did
lunge at Perlson and possessed confidential information, I will
undertake the following Atlantic Steel analysis.
CARNEGIE LINEN SERVICES 2231
A. The Place of the Discussion
The first factor, the place of the discussion, favors protection
in the circumstances of this case. According to Diaz, who I
credit, the conversation took place in Perlson’s office, in the
presence of management officials, and not in a work area where
other employees could overhear their conversation. Even ac-
cording to Garlasco, who stated that the confrontation took
place at the bottom of a staircase in an area near where three or
four employees were working, because of the loud noise of the
machines he did not know whether they could hear the conver-
sation. Accordingly, there is no evidence that other employees
heard the discussion. Accordingly, it has not been shown that
Diaz’ actions could have affected workplace discipline. I, thus,
conclude that the first factor favors protecting Diaz’ conduct.
B. The Subject Matter of the Discussion
The second factor, the subject matter of the discussion,
strongly favors protection. The November 7 confrontation was
a continuation of the dialogue between Garlasco and Diaz
which began the previous day and continued in the morning of
the day Diaz was discharged. Thus, Diaz was offered and re-
fused to accept a sum of money to cease his union activities.
After he refused and when he was walking home, he was called
back to meet with Perlson who accused him of harming the
Employer. Diaz defended his right to speak about the Union for
the benefit of himself and his coworkers and in order to receive
better representation. Accordingly, Diaz was plainly engaged in
protected conduct. Because defending protected activity is itself
protected, see Network Dynamics Cabling, Inc., 351 NLRB
1423, 1429 (2007), and because asserting fundamental rights
under the Act strongly favors protection, see Stanford Hotel,
344 NLRB 558, 559 (2005), this factor weighs heavily in favor
of protection.
C. The Nature of the Conduct
The third factor, the nature of the conduct, also favors pro-
tection. I have found, above, that Diaz did not possess confi-
dential information and did not lunge at Perlson.
However, even assuming that Diaz possessed confidential in-
formation and lunged at Perlson, the record does not demon-
strate that Diaz’ conduct on November 7 was so egregious as to
be considered indefensible. As noted above, the Board has al-
lowed a degree of latitude in circumstances where employees
are engaged in allegedly inappropriate, yet protected activities.
As set forth above, Diaz’ knowledge that Miron obtained the
Park Central account was obtained by a friend who worked at
Miron. There was no allegation that Diaz acted improperly in
any way in learning that information, or that he came upon such
information from the Respondent’s records. As to the allegation
that Diaz lunged at Perlson, as set forth above, he made no
contact with Perlson, and apparently just made a forward mo-
tion. Also, as set forth above, Garlasco testified that such con-
duct was not considered to be serious, and Perlson did not im-
mediately discharge Diaz for his alleged conduct, but said that
he could return to work when he felt better. Accordingly, the
Respondent did not, at that time, consider his conduct to be a
dischargeable offense.
The Board has found protected an employee who spoke
loudly, stood up and moved toward a supervisor who threat-
ened him with discharge. Alton H. Piester, LLC, 353 NLRB
369, 374 (2008). Here, Diaz and Perlson engaged in a heated
argument. There was no evidence at all as to what Diaz said, if
anything, during that argument. I find that Diaz’ conduct on
October, November 7, was not so opprobrious as to remove his
protected, concerted and union conduct from the protection of
the Act. Atlantic Steel Co., above.
D. Provocation by the Respondent
The final factor, provocation by the employer’s unfair labor
practices, similarly favors protection. Diaz’ alleged lunging at
Perlson, and indeed the entire incident, were triggered by Gar-
lasco’s threat to close the shop, his unlawful offer to pay Diaz
to cease his union activities, Perlson’s highly offensive descrip-
tion of Diaz’ upcoming work duties, the stream of obscenities
directed at him, and his question to Diaz as to why he was act-
ing against the Employer. Without these unfair labor practices,
there would have been no discussion or confrontation between
Perlson and Diaz. As such, this factor favors protection. See
Stanford Hotel, 344 NLRB at 559.
Much more serious conduct, including physical assaults, if
found to have been provoked by the employer, precludes the
employer from relying on such misconduct to justify discharge.
In Key Food, 336 NLRB 111, 113 (2001), the Board stated
that it has “long recognized that an employer cannot provoke an
employee to the point where he commits an indiscretion and
then rely on that conduct to terminate his employment.” In that
case, an employee touched a supervisor on the shoulder with
his finger following the supervisor’s “profane and abusive ti-
rade.” See also Palagonia Bakery Co., 339 NLRB 515, 532
(2003), where the employee cursed at the supervisor and struck
him with his finger; E. I. du Pont de Nemours, 263 NLRB 159,
159–160 (1982), where an employee’s open palmed push of a
supervisor who had harassed him was deemed insufficient to
justify his discharge.
It is significant that here it is not alleged that Diaz cursed at
Perlson or touched him. Rather, it is clear that the combined
actions of Garlasco in asking Diaz on consecutive days to ac-
cept a bribe to cease speaking about his union activities, and
Perlson’s demand to know why he was acting against the Em-
ployer together with his cursing and offensive remarks pro-
voked Diaz to allegedly lunge at Perlson.
In summary, all four Atlantic Steel factors weigh in favor of
Diaz retaining the protection of Section 7. Because Diaz’ ac-
tivity remained protected, his discharge violated Section 8(a)(3)
and (1) of the Act.
Conclusions as to the Representation Case
As set forth above, on January 20, 2010, Local 1964 won an
election in Case 02–RC–023436. Workers United filed objec-
tions to the election and on May 13, 2010, the Regional Office
issued a notice of hearing on objections and order consolidating
cases, which consolidated for hearing the unfair labor practice
and the objections cases. On June 23, a partial settlement
agreement was executed by counsel for the General Counsel,
the Respondent, and Workers United, and was approved by me.
The agreement, in part, provided that the election would be set
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2232
aside and the objections portion of the complaint would be
remanded to the Regional Director to schedule a new election
upon the resolution of the remaining complaint allegations.
It will be ordered that the representation proceeding be re-
manded to the Regional Director for the purpose of conducting
a second election.
CONCLUSIONS OF LAW
1. By offering Jose Luis Diaz money to cease his union ac-
tivity, the Respondent violated Section 8(a)(1) of the Act.
2. By inflicting bodily injury on Jose Luis Diaz in response
to his union activities, the Respondent violated Section 8(a)(1)
of the Act.
3. By discharging Jose Luis Diaz because he assisted and
joined Workers United and engaged in concerted activities, the
Respondent violated Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Jose
Luis Diaz, it must offer him reinstatement and shall make him
whole for any loss of earnings and other benefits suffered as a
result of the unlawful action against him. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). The
Respondent shall also be required to remove from its files any
and all references to the unlawful discharge, and to notify Diaz
in writing that this has been done and that the warning and
discharge will not be used against him in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Carnegie Linen Services, Inc., Bronx, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Offering money to employees to cease their union activi-
ty.
(b) Inflicting bodily injury on employees in response to their
union activities.
(c) Discharging employees because they joined and assisted
Laundry Dry Cleaning & Allied Workers Joint Board, Workers
United, a/w Service Employees International Union, or any
other labor organization and engaged in concerted activities.
(d) 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.

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Jose Luis Diaz full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Jose Luis Diaz whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify Jose Luis Diaz in writing that
this has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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 fa-
cility in the Bronx, New York, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 employ-
ees employed by the Respondent at any time since November 6,
2009.
(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 that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that Case 02–RC–023436 is severed
and remanded to the Regional Director for Region 2 for the
purpose of conducting a second election.

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CARNEGIE LINEN SERVICES 2233
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 vio-
lated 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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT offer money to you to encourage you to cease
your union activity.
WE WILL NOT inflict bodily injury on you in response to your
union activities.
WE WILL NOT discharge or otherwise discriminate against
you because you join or assist Laundry Dry Cleaning & Allied
Workers Joint Board, Workers United, a/w Service Employees
International Union, or any other labor organization and en-
gaged in concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 Jose Luis Diaz full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Jose Luis Diaz whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge,
and within 3 days thereafter notify Jose Luis Diaz in writing
that this has been done and that the discharge will not be used
against him in any way.
CARNEGIE LINEN SERVICES, INC.