Edp Medical Computer Systems, Inc., Consumers Subscription Center, Inc., And Consumers Subscription Service, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1987

284 N.L.R.B. 1286 (N.L.R.B. 1987)

1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
EDP Medical Computer Systems, Inc., Consumers
Subscription Center, Inc., and Consumers Sub-
scription Service, Inc. and Local 888, United
Food and Commercial Workers International
Union, AFL-CIO and Jorge Lee, an Individual.
Cases 29-CA-12097, 29-CA-12099, and 29-
CA-12151
24 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 23 December 1986 Administrative Law
Judge Steven B. Fish issued the attached decision.
The Respondent filed exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings, and conclusions
for the reasons set forth below, to modify his
remedy, 1 and to adopt the recommended Order as
modified.
The Board in a similar situation in Bonanza Sir-
loin Pit, 275 NLRB 310 (1985), stated that:
Section 102.46(b) of the Board's Rules and
Regulations sets forth the minimum require-
ments with which exceptions to an administra-
tive law judge's decision must comply in order
to merit consideration by the Board. A party
excepting to the findings of an administrative
law judge must set forth with specificity those
portions of the judge's decision to which it ex-
cepts, and support the contentions with legal
or record citations or appropriate argument.
The Respondent's exceptions are inadequate
as they constitute virtually a wholesale listing
of each and every fmding, conclusion, and rec-
ommendation of the judge. The Respondent
failed to submit a supporting brief or any other
document alleging with any degree of particu-
larity what error, mistake, or oversight the
judge committed or on what grounds the find-
ing should be overturned. Consequently, the
Respondent would have the Board engage in
its own attempts to determine what if any
problems, errors, or irregularities are possibly
presented by the judge's decision. We have
consistently refused to do this. Fiesta Printing
Co., 268 NLRB 660 (1984); Ditch Witch, Inc.,
1 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
284 NLRB No. 118
248 NLRB 452 (1980); Aitoo Painting Corp.,
238 NLRB 366 (1978).
In accord with the above precedent, we fmd that
the Respondent's exceptions fail to put in issue any
findings of the judge. Consequently, we reject the
exceptions and adopt the judge's decision.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, EDP Medical Computer Systems, Inc.,
Consumers Subscription Center, Inc., and Consum-
ers Subscription Service, Inc., Jamaica, New York,
their officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Eliminate paragraph 2(1) and reletter the sub-
sequent paragraph.
2. Substitute the attached notice for that of the
administrative law judge.
2 Under the circumstances of this case, we find no need for the provi-
sion in the recommended Order requiring the Respondent's president to
read the notice to all employees m the presence of a Board agent. We
shall modify the judge's recommended Order by deleting this provision.
Member Babson concurs in the result reached by his colleagues and
adopts the judge's findings, conclusions, and recommended Order as
modified. In so doing, Member Babson finds it unnecessary to pass on the
technical sufficiency of the Respondent's exceptions since he agrees with
the judge's finding of the violations on the merits.
Member Babson additionally notes that the judge here relied, in part,
on his findmgs in his prior decision involving the Respondent. Although
the Board in EDP Medical Computer Systems, 284 NLRB 1232, issued
today, has not in all respects adopted the judge's prior decision. Member
Babson concludes that this does not affect the validity of the judge's find-
ing of the violations in the present case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
EDP MEDICAL COMPUTER SYSTEMS 1287„ , 4
WE WILL NOT suggest that you quit or resign
your employment, or threaten you with bodily
harm, in reprisal for your activities on behalf of or
support for Local 888, United Food and Commer-
cial Workers International Union, AFL-CIO or be-
cause of your having given testimony under the
National Labor Relations Act.
WE WILL NOT verbally harass you, subject you
to closer supervision, change your work assign-
ments, work locations, or lunch hour procedures
because of your support for or activities on behalf
of the Union or because you gave testimony under
the Act.
WE WILL NOT issue written or oral warnings to
you, or discharge or refuse to reinstate you, or oth-
erwise discriminate against you because of your
support for or activities on behalf of the Union or
because you gave testimony under the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer David Burgos and Jorge Lee im-
mediate and full reinstatement to their former posi-
tions of employment or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges previously enjoyed.
WE WILL make whole David Burgos and Jorge
Lee for any loss of earnings and other benefits suf-
fered by them as a result of our discrimination
against them, plus interest.
WE WILL remove from our files any reference to
the discharges of David Burgos and Jorge Lee and
the written warnings issued to Jorge Lee and
notify these employees in writing that this has been
done, and that evidence of these unlawful termina-
tions or warnings will not be used by us as a basis
for future personnel actions against such employ-
ees.
EDP MEDICAL COMPUTER SYSTEMS,
INC., CONSUMERS SUBSCRIPTION
CENTER, INC., AND CONSUMERS
SUBSCRIPTION SERVICE, INC.
Elias Feuer, Esq., for the General Counsel.
Bernard Gelb, President, of Jamaica, New York, for the
Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant
to charges filed by Local 888, United Food and Com-
mercial Workers International Union (Local 888 or the
Union), in Cases 29-CA-12097 and 29-CA-12099, the
Acting Regional Director for Region 29 issued a consoli-
dated complaint and notice of hearing on 29 November
1985. 1 On 3 January 1986, pursuant to charges filed by
Jorge Lee, an Individual (Lee), in Case 29-CA-12151,
the Acting Regional Director issued an additional com-
plaint and notice of hearing.
On 21 January 1986, the Acting Regional Director
issued an order consolidating the above cases for hear-
ing. The complaints, as amended at the hearing, allege in
substance that EDP Medical Computer Systems, Inc.,
Consumers Subscription Center, Inc., and Consumers
Subscription Service, Inc. (Respondent or Respondents)
violated Section 8(a)(1), (3), and (4) of the Act by vari-
ous actions taken in regard to Lee and David Burgos
(Burgos), including warnings, acts of harassment, closer
supervision, and ultimately the discharge and refusal to
reinstate these employees.
The trial with respect to the above allegations was
heard before me in New York, New York, on 29 Febru-
ary and 3 and 4 March 1986.
On 7 April 1986, Respondent filed a brief with me
with various exhibits attached. On 30 April 1986 the
General Counsel filed a motion to strike Respondent's
brief and reject certain exhibits presented in the brief.
Respondent on 9 May 1986 filed a reply in opposition to
the General Counsel's motion.
Respondent attached to its brief exhibits marked 1
through 12. Of these 12 documents, exhibits 6-9 and 11
were never introduced, authenticated, nor made part of
the record in the instant proceeding. These exhibits con-
sisted of alleged summaries of various conversations, al-
legedly signed by witnesses who were not called to testi-
fy here, as well as a document entitled "Rules and Regu-
lations," which purports to have been in force at Re-
spondent's facility.
Because Respondent did not offer these documents or
authenticate them at the hearing, they are not part of the
record and may not appropriately be considered. Ac-
cordingly, the General Counsel's motion to strike these
items is granted with respect to the above-described at-
tachments to Respondent's brief and I shall disregard
them. Inland Steel Co., 259 NLRB 191, 192 (1981); Wash-
ington Hospital Center, 270 NLRB 396 (1984); Operating
Engineers Local 18 (Ohio Contractors), 220 NLRB 147
(1975). See also NLRB Rules and Regulations, Section
102.45(b).
I am cognizant of the fact that Respondent was not
represented by an attorney during the instant trial, How-
ever, I do not believe that this factor requires a different
result with respect to the General Counsel's motion. I
note in this connection, that at the outset of the hearing I
specifically informed Bernard Gelb, Respondent's presi-
dent who conducted its defense of the necessity and pro-
cedure for him to present his case. I notified Gelb that
when the General Counsel rests Respondent will be ex-
pected to present whatever witnesses and documents that
it wishes me to consider. Indeed, Gelb had previously
made some reference to "warning" letters 2 allegedly
All dates hereinafter unless otherwise specified refer to 1985.
2 It appears that the exhibits that Respondent attached to its brief in-
cluded some of these "alleged" warning letters that were not introduced
into the record.
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issued to Jorge Lee. I reminded Gelb that he had in fact
referred to such documents and instructed him that it
would be necessary for him to introduce such items
when presenting his case.
The General Counsel also moves to strike various
statements made in Respondent's brief, which the Gener-
al Counsel portrayed as "defamatory remarks for which
there is no support in the record." The comments in Re-
spondent's brief to which the General Counsel objects
include (1) a statement that the General Counsel "inten-
tionally or recklessly" misrepresented facts to the court
(2) statements that the General Counsel instructed David
Burgos to "manufacture" testimony and instructed
Burgos to lie, and at two other points in its brief that the
General Counsel's office manufactured Burgos' testimony
and instructed him to lie and (3) a statement that the
General Counsel "permitted Lee to perjure himself."
I find on a careful examination of the record that it
provides absolutely no support for these statements by
Respondent in its brief. I also conclude that these re-
marks, particularly the accusation that the General
Counsel "manufactured" testimony and instructed a wit-
ness to lie, constitute defamatory and scandalous com-
ments. "Such unfounded imputations are condemned by
the Board." Longshoremen ILWU Local 13 (Pacific Mari-
time Assn.), 210 NLRB 952 (1974); see also Southern
Florida Hotel Assn., 245 NLRB 561 (1979).
Accordingly, the General Counsel's motion to strike
these statements is granted.
Finally, the General Counsel also moves to strike some
21 other specific portions of Respondent's brief on the
grounds that they do not appear in the record. Many of
the items referred to in this portion of the General Coun-
sel's motion constitute Respondent's interpretation or
conclusions drawn from certain record testimony. It is
not appropriate to strike such statements from Respond-
ent's brief, even if I disagree with such interpretations or
conclusions. Shasta Fiberglass, 202 NLRB 341, 345
(1973); Nabco Corp., 266 NLRB 687, 688 (1983).
There are a few items in this portion of the motion for
which there is clearly no record support or reference. In-
sofar as the record does not disclose any testimony or
exhibits dealing with these or any other contentions of
Respondent, I shall of course, consistent with Section
102.45(b) of the Rules and Regulations, disregard such
remarks in Respondent's brief.
Based on the entire record, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
EDP Medical Computer Systems, Inc., Consumers
Subscription Center, Inc., and Consumers Subscription
Service, Inc. (Respondent), are an affiliated business with
common officers, ownership, supervision, and have for-
mulated a common labor policy affecting employees of
its operations.
Respondent is engaged in the business of providing
computer services, sweepstakes entry forms, collection
services and related services, during the past year it per-
formed services valued in excess of $50,000 for various
corporations within the State of New York, including
Bronx Lebanon Hospital, which businesses themselves
purchase goods, materials, and other supplies directly
from other businesses located outside the State of New
York, valued in excess of $50,000.
It is admitted and I fmd that Respondent is now and
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It is also admitted and I find that Local 888 is a labor
organization within the meaning of Section 2(5) of the
Act.
II. PRIOR CASES—CASES 29-CA-11726, 29-CA-11799,
29-CA-11827, 29-CA-11845, 29-CA-11909, 29-CA-
11917, 29-CA-11996, 29-CA-12006, 29-CA-12077, 29-
CA-6353
Pursuant to the above charges filed by Local 888 and
employees Lawerenc,e Wilson and David Arguelles, the
Regional Director for Region 29 issued various com-
plaints against Respondent. Between 19 September and
25 November, the trial with respect to the above com-
plaints was heard before me over the course of some 20
hearing days.
On 8 July 1986, I issued a decision and recommended
Order. 3 I found, inter alia, that Respondent violated Sec-
tion 8(a)(1) of the Act by numerous incidents of threats
of discharge, blacklisting, closing or moving, eliminating
their practice of granting personal loans to employees,
stricter enforcement of tardiness, absence, and other
plant rules, indicating that they would never recognize
or negotiate with the Union, and making the assignment
of more onerous working conditions, because the em-
ployees support the Union; by warning and instructing
employees not to get involved with the Union; by coer-
cively interrogating employees concerning their or other
employees union activities or sympathies; by soliciting
grievances from employees and indicating a willingness
to rectify them in order to undermine the Union, by
promising employees the restoration of the practice of
granting loans to employees, additional sick days, raises,
and stating that they would forgive and forget all past
transgressions by employees if employees withdrew their
support for the Union and or failed to vote in a Board
election; and by engaging in surveillance of the union
meetings and other concerted activities of its employees.
I also concluded that Respondents violated Section
8(a)(1) and (3) of the Act by discharging and refusing to
reinstate employees Esther Shaw, Joy Scott, Lawerence
Wilson, and Sarahnie Smith; refusing to permit Smith
and Megaly Lopez to rescind their resignations; curtail-
ing overtime assignments of Ivy Valentine, Linda Bera-
dino, and Smith; reducing the working hours of its em-
ployees, changing or enforcing more strict work rules;
making deductions from salaries of employees without
their consent; issuing written warnings to employees, and
assigning employees more onerous and less agreeable
work because of the employees' support and activities on
behalf of Local 888.
3 284 NLRB 1232.
EDP MEDICAL COMPUTER SYSTEMS 1289
Additionally, I found that Respondents violated Sec-
tion 8(a)(1) and (4) of the Act by constructively dis-
charging and refusing to permit Smith to rescind her res-
ignation because she appeared at a Board representation
hearing.
I also concluded that the above-described unfair labor
practices were "outrageous and pervasive," and recom-
mended that Respondents be ordered to bargain with the
Union as the exclusive representative of its employees.
Finally, I recommended dismissal of certain allegations
relating to certain alleged implied threats of discharge
and plant closure, surveillance of union activities of its
employees; certain alleged discrimination against Valen-
tine, Beradino, and David Arguelles; alleged unlawful
subcontracting; and an alleged refusal to grant union sup-
porters raises.
Exceptions to portions of my decision have been filed
by General Counsel and Respondent, which are current-
ly still pending Board resolution and determination.
Both Lee and Burgos were witnesses called by Gener-
al Counsel during the course of the hearing that led to
the above decision. Both furnished significant testimony
in connection with several violations of the Act, which I
subsequently found.
Lee, who was the only witness for General Counsel
for which an authorization card was not introduced into
the record at the hearing, adduced testimony particularly
damaging to Respondent. Thus Lee testified that on 28
February 1985, the date that the Union made its initial
public appearance at Respondent's facility, he was in-
structed by various agents of Respondent to attend the
union meeting scheduled for that evening and report
back to Respondent what transpired therein. Lee further
testified that he in fact attended the meeting along with
Respondent's agent, Joe Silvagnoli, and returned to Re-
spondent's premises thereafter. At that time Lee testified
that Silvagnoli reported to Bernard Gelb the events of
the meeting, including the singling out of employee Ester
Shaw as the instigator of the union movement among the
employees. The next day Shaw was terminated by Re-
spondent.
credited Lee's testimony set forth above, and found
that Respondent violated Section 8(a)(1) of the Act by
engaging in surveillance of employees' union activities.
As to Shaw's termination, I relied heavily on Lee's tes-
timony in establishing that Respondent acquired knowl-
edge of Shaw's leadership role in the Union's organiza-
tional activities on 28 February, the day before her dis-
charge.
Additionally, Lee credibly testified that during the
course of Respondent's reduction of hours of most of its
employees he had a conversation with Bernard Gelb
about the matter. Lee, who by the way did not have his
hours reduced, asked Gelb when the other employees
would be returned to full-time status. Gelb's response in-
cluded the statement that if the Union was ever elected,
he would "cut everybody's hours and just hire other
people for the difference." I also placed significant reli-
ance on this remark by Gelb in my decision to establish
that Respondent's reducing the hours of employees was
motivated by the appearance of the Union in violation of
Section 8(a)(1) and (3) of the Act.
Burgos furnished testimony with respect to several al-
legations in the complaint. He testified that when he re-
turned to work at Respondent from bereavement leave
on 4 March he was warned by Silvagnoli not to get in-
volved with the Union.
He further testified that, on the day prior to the elec-
tion, he was told by Silvagnoli that if he did not vote in
the election "everything will be forgotten." Similarly,
Earl Haynes, acting as agent for Respondent on the day
of election, told Burgos that he was relaying a message
from Bernard Gelb and that Burgos should leave and not
vote, and if so Burgos was guaranteed a raise.4
I credited Burgos' testimony as set forth above and
concluded that by the conduct described therein Re-
spondent violated Section 8(a)(1) of the Act.
I further found that Respondent violated Section
8(a)(1) and (3) of the Act by "calling in" a loan previous-
ly granted to Burgos and deducting moneys from his
salary without his consent, on and after 26 April.
Additionally, I concluded that Respondent's issuance
of a written warning to Burgos on 25 July, allegedly for
lateness, was also discriminatorily motivated in violation
of Section 8(a)(1) and (3) of the Act.
I also credited Burgos' further testimony that Silvag-
noli refused to assist Burgos in the preparation of his tax
return, while informing Burgos that he did not complete
the return because Burgos had attended the union meet-
ing. 5 However, I did not fmd that Respondent violated
the Act by this conduct of Silvagnoli, because I conclud-
ed that General Counsel failed to establish that the prep-
aration of Burgos' tax return was a "term or condition of
employment" for employees at Respondent.
HI. FACT IN THE INSTANT CASES
A. Jorge Lee
Lee testified on behalf of General Counsel at the prior
hearings on 3 October 1985. Although the record here
demonstrates that Lee signed an authorization card for
the Union on 1 October 1985, the card was not intro-
duced into the prior record, nor otherwise referred to
therein.
Thus, he was the only employee witness for General
Counsel in the prior hearing for whom an authorization
card was not introduced into the record. From my eval-
uation of the nature of his testimony, as well as the
extent of his cross-examination by Respondent, it is clear
that his testimony came as a disconcerting surprise to
Respondent.
After Lee completed his testimony at the hearing, he
returned to work at Respondent's facility at approximate-
ly 3 p.m. Lee encountered Judith Gelb, showed her the
subpoena that he had been given, and told her that he
had returned from testifying at the NLRB and was ready
for work. Gelb said nothing to Lee, and he began work-
ing at his desk.
4 Burgos disobeyed these warnings and instructions by attending union
meetings, signing an authorization card, and not only votmg in the elec-
tion but acting as the union observer.
5 I note that Silvagnoli had previously warned Burgos not to get in-
volved with the Union.
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For the rest of the afternoon, Judith Gelb stood about
2 feet away from Lee with her hands folded observing
him work. This was the first time that Gelb had ever
stood and observed Lee while he was working for any
appreciable period of time.
At some point during that afternoon, Judith Gelb in-
structed Lee to cease working on ECB partial payments,
and that he should do work that Dan King assigns him.
Gelb then asked King if he had any work for Lee to per-
form. King then assigned Lee to do primary telephone
skip tracing work.
Lee had been performing ECB partial payments or
ECB receivable work for about 1 to 1-1/2 years. During
this period of time Lee spent approximately 90 percent
of his time doing this work. In this connection Lee
would receive a batch of checks that had been collected
by Respondent from debtors who owed money to ECB
for violations that they committed. Lee's job was to
check Respondent's computer to see if there was still an
outstanding violation with respect to the payor of the
check. Lee would then separate the check into various
categories such as full payment, partial payment, or set-
tlement. Lee would then post the checks, photocopy
them, and prepare the check to be transmitted to ECB.
The skip tracing work that he was assigned by King
on 3 October involved Lee's using a printout of sanita-
tion violations and going through the telephone directo-
ry to make sure that the telephone numbers and address-
es listed for the violators were correct. While Lee had
performed this skip tracing work in the past, he had not
been given such assignments by Respondent for over a
year.
The next day, 4 October, Lee was assigned to xerox
work from 9 a.m to 4 p.m. While in the past, Lee had
received xerox assignments, never had he been assigned
xeroxing work for such a duration. In fact most of his
prior xerox assignments had occurred after 5 p.m while
he was on overtime.
From 4 p.m. to 5 p.m. Lee continued to perform the
skip tracing work that had been assigned him by King
the day before.
On Monday, 7 October, at 9:20 a.m., Lee reminded
Silvagnoli that if he needed help on ECB check posting
(the work Lee had performed prior to 3 October), he
should let Lee know. Silvagnoli replied okay, but did not
request Lee's assistance thereafter.
After continuing to perform the same skip tracing
work at his desk on 7 and 8 October, Lee was assigned
by Dan King to work in the conference room, near the
computer. Lee was told by King to do the same primary
skip tracing work, but in addition to checking phone
books, to also utilize the computer to verify the address
and phone number of the violators. For the remainder of
his employment at Respondent, Lee performed this skip
tracing work, either in the conference room or at A desk
in the collection department. He spent approximately
two-thirds of his time in the conference room and one-
third at the desk.6
6 Lee was the only employee regularly assigned to work m the confer-
ence room.
After a few days of using the computer to verify the
addresses and phone numbers, Lee discovered that, in
each and every case, these items were identical to the
phone books and Respondent's computer printout. Thus
Lee felt that he was wasting his time using the computer.
Lee made various unsuccessful attempts to explain his
position to Respondent's officials.
On 18 October King told Lee to again move from the
desk to the conference room and use the computer. Lee
began to try to explain to King that he felt that it was
not necessary to use the computer for this work, but
King interrupted him and yelled that Lee should do
what he was told.
On another occasion, Lee explained to Bernard Gelb
that 100 percent of the time, the place of occurrence on
the computer screen is the same as on the printout. Gelb
replied, "All right, I am busy right now." Lee also made
a similar explanation to Silvagnoli. Silvagnoli's response
was, "What do you want from me?"
The skip tracing work performed by Lee on and after
3 October is easier than his prior assignments of ECB
posting. However, the posting work is more responsible
and advanced and requires more thinking and ability.
Respondent adduced no testimony or other evidence
in explanation of why it changed Lee's job assignments
and or work station on and after 3 October as related
above.
On 9 October Lee was assigned again to work in the
conference room. The table counter that Lee was told to
utilize contained the computer screen, a telephone, and
the keyboard and had very little remaining work space.
Lee felt that he needed additional space for his books
and materials, which could not fit on the table.
On 10 October, when Lee reported to work at 9 a.m.,
the conference room was being used by Bernard Gelb
for a meeting with one of his attorneys. Silvagnoli in-
structed Lee not to enter the conference room until the
meeting concluded, and to sit at his old desk. 7 Lee pro-
tested that all the materials that he was using for his
work were in the conference room. Silvagnoli repeated
that Lee should sit at his old deck until the meeting con-
cluded. Silvagnoli did not give Lee any work to do or
any assignment to perform.
A few minutes later Judith Gelb instructed Lee to sit
at David Burgos' desk. However, she did not give Lee
any assignment to perform and Lee had no work, as his
materials were in the conference room. Lee asked Judith
Gelb about receiving a weeks' vacation. Gelb replied
that she could not speak to Lee because he had a union
representative. He replied, "That's right I have my rep-
resentative."
About 11 a.m. the meeting in the conference room
ended, and Lee entered the room. Because he felt that he
did not have sufficient work space, he began to build a
cardboard extension in front of the table, so he could put
his materials in front of him. Dan King arrived and in a
loud voice questioned Lee as to why he was building the
extension, particularly when he had an entire empty
'The day before Silvagnoli had told Lee to clear out his belongings
from his old desk.
EDP MEDICAL COMPUTER SYSTEMS 1291
office to utilize. Lee explained that without the extension
it is harder for him to work. King yelled that Lee was
told to do telephone skip tracing, and he should do what
he was told. King added that if he did not want to do his
work, he could go home.
As King then left the conference room, Judith Gelb
was standing by the door. Gelb chimed in that she did
not need Lee's explanation and he could go home if he
wished. Lee did not respond and continued his work.
Later that afternoon, Judith Gelb handed Lee a docu-
ment dated 10 October, signed by Bernard Gelb. The
document, which Judith Gelb read out loud to Lee,
states as follows:
On 10 October, you were assigned clerical work.
You failed to perform the work. Judy Gelb ob-
served you aimlessly walking in the production
area. In discussing your conduct with Judy Gelb,
you were belligerent and offensive.
In addition, you were observed by Marilyn Nosel
and Terry Rhett intercepting the telephone calls of
other employees. You are not authorized to pick up
phone calls of other employees.
This belligerent and insubordinate attitude will no
longer be tolerated. Any future repetition will result
in further disciplinary action up to and including
discharge.
Lee replied to Judith Gelb that these charges were
false and he wanted to talk about them. Judith responded
that Lee should speak to Bernard Gelb. Lee persisted
however and confronted Nosel and Rhett in the presence
of Judith Gelb about their alleged accusations that he
intercepted phone calls. Both Nosel and Rhett denied
knowing anything about it and denied saying anything to
Gelb about Lee intercepting calls. Lee credibly denied
that he ever intercepted any phone calls.
Neither Rhett, IsTosel, northe Gelbs testified in the in-
stant hearing. Respondent failed to adduce any probative
evidence that Lee intercepted phone calls, failed to per-
form assigned work, was "aimlessly" working in the pro-
duction area, or was "belligerent or offensive" in discuss-
ing his conduct with Judith Gelb.8
On 18 October, Lee was once again working at the
desk in the collection area. King came over to him at
9:15 a.m and instructed him to move back to the confer-
ence room and to use the computer screen. Lee replied
that he did not think it was necessary to use the comput-
er screen and was attempting to explain his view that
using the screen was a waste of time. King, however, in-
terrupted Lee, and yelled at him that he should do what
he is told, and if he did not want to do it, he could leave.
On 21 October Lee was working again in the confer-
ence room. About 9:35 a.m. Matt Saffern came into the
room and began to write something on some papers on
8 Silvagnoli did furnish some vague and unconvincing hearsay testimo-
ny, that, at some unspecified date, Nosel told him that Lee intercepted
one phone call that she was expecting from her boy friend.
the table. Lee then went to the restroom in the produc-
tion area.9
While he was in the restroom, Lee heard Bernard
Gelb calling his name. Lee came out of the restroom and
Gelb asked where he had been and accused Lee of being
missing for 45 minutes. Lee replied no, that he had just
gone out to the sink and suggested that Gelb ask Saffern.
Gelb then asserted that Lee did not want to be in the
conference room because Saffern was there. Lee said no
and walked into the conference room, followed by Gelb.
Lee informed Gelb as they were walking that he had
gone to the sink in the production area because he could
not use the sink in the office restroom. When they en-
tered the conference room, Gelb continued to accuse
Lee of being missing for minutes. Saffern stood up and
walked out, without making any comments. Gelb repeat-
ed about five or six times to Lee, "Right Jorge, you
were missing 45 minutes." Finally, although it was not
true, Lee admitted that he was missing for 45 minutes,
because he wanted merely to be left alone. Once Lee ad-
mitted being missing for 45 minutes, Gelb walked out.
Prior to 23 October, Lee had never been required to
take his lunch hour at any particular time. He usually
took his lunch hour at 1 p.m., but when he was busy, his
lunch hour would vary. On 23 October, as Lee was leav-
ing to go to lunch at 1 p.m., he was informed by King
that from then on he would be required to take his lunch
hour at 12 noon. Lee made no response and went to
lunch.
Lee admitted that production workers all had a fixed
lunch hour, beginning at 1 p.m. As for office workers,
they took lunch at various times such as 12, 12:30, and 1
p.m. The record does not reflect whether these employ-
eeS had fixed lunch hours during these times.
Lee returned from lunch about 2:20 p.m. Lee began
doing his work, when he was approached by King. King
began yelling at Lee, "Hey, hey, I want you to do five
boroughs, not just one. If you do just one borough,
you're fired. I'll clock you out." Lee responded by also
raising his voice saying that King should not call him
"hey, hey," his name is Jorge Lee. King said he was
sorry, and Lee asked what King wanted him to do? King
did not reply and walked out.
On 3 October, when King gave Lee his skip tracing
assignment, he instructed Lee that he could do any bor-
ough he wants and had never told him to do all five bor-
oughs at once. Lee's practice had been to do one bor-
ough at a time, and had on 23 October gone through
three boroughs.
As noted above, Lee's assignment was to check the
addresses and phone numbers on a computer printout
against those in the phone books. Thus Lee had previ-
ously used the phone books for each borough separately
and gone through all the names on the list for that bor-
ough before going to the next borough. Apparently King
on 23 October instructed him to use all five phone books
at once, and presumably take each name as it appears on
the printout in order.
He used the restroorn in the production area rather then the one lo-
cated in the office because the latter restroom leaked and had no hot
water.
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Later on that afternoon, Lee was handed another
warning letter by Judith Gelb dated 23 October. The
letter makes various accusations against Lee, including:
(1) on 18 October refusing to perform assigned work and
yelling loudly; (2) on 21 October disappearing from his
desk from 9:05 to 9:57 a.m., and being discovered loiter-
ing by Bernard Gelb in the production area; (3) on 23
October, refusing to go to lunch each day at 12, and
screaming loudly and disturbing the entire office when
being given an assignment. The letter concludes by stat-
ing, "your behavior is totally unacceptable. One more in-
cident and you will be immediately terminated for mis-
conduct."
After Judith Gelb read the letter to Lee, he again
denied the accusations contained therein and asked to
talk about the letter with her. Judith refused and said he
must speak to Bernard.
The next day, 24 October, as Lee was leaving for
lunch at 12 noon he encountered Bernard Gelb. Lee told
Gelb that he did not need any false accusations about not
taking a lunch hour at 12 noon, and if Gelb wanted Lee
to take lunch at noon, there will be no problem. Gelb re-
plied, "That's better."
The above description of the events of 18 through 23
October is derived from the unrefuted and credible testi-
mony of Lee. Neither King, Saffern, nor either of the
Gelbs testified. Moreover Respondent adduced no testi-
mony or other evidence in support of the various accusa-
tions made against Lee in the warning letter, such as his
alleged refusals to perform work, or to follow instruc-
tions or his alleged disappearance from his work area.
For approximately 2-3 months prior to Lee's assign-
ment change on 3 October, he had been using a briefcase
borrowed from and owned by fellow employee Joe
Diggs. Lee had asked Diggs to borrow the briefcase to
store ECB checks and stamps that he had been working
with.
When Lee was reassigned to do skip tracing work and
told to clean out his desk, he no longer saw or used this
briefcase.
At some point undisclosed by the record, employee
Lucy Maisonave began using the briefcase.
On 4 November, Diggs told Maisonave that she was
using his briefcase and asked for its return. Maisonave re-
sponded that she thought that it belonged to Respondent.
Diggs then told Maisonave to ask Lee about the matter,
and Lee confirmed that the briefcase belonged to Diggs
and suggested that she return it to him.
Maisonave then took the briefcase into Judith Gelb's
office. When she returned, Maisonave placed the brief-
case on Lee's old desk. At that point Lee, believing that
because he had borrowed the briefcase from Diggs it
was his responsibility to return the briefcase to him, went
over to the desk. Lee removed the contents of the brief-
case and placed them on the desk and returned the brief-
case to Diggs. Diggs replied, "Thank you.""
10 The above recitation of the facts pertaining to this incident is de-
rived from the credible testimony of Lee. I do not credit Silvagnoli's ver-
sion of this incident, particularly his testimony that Diggs did not ask for
the briefcase to be returned to him. I note that in the prior trial I credited
Lee as well as other employees vis a vis Silvagnoli in a number of in-
stances where their testimony conflicted. I find no reason to alter that
Later on that same day, Lee received another written
warning notice signed by Bernard Gelb. The letter ac-
cuses Lee of leaving his work station and disturbing the
office, by emptying the briefcase that Maisonave had
been using. The letter states that Diggs had merely asked
where it was and did not ask for its return. The letter
then accuses Lee of "getting involved in a matter that
did not concern you." Finally, it characterizes Lee's con-
duct as "irresponsible," and "irrational," and states that
"dismissal will well follow future misconduct."
On 6 November, Lee overheard Gelb instruct Maison-
ave to have Lee make some xerox copies of filled out
Blumberg forms. Maisonave then immediately gave the
assignment to Lee, which he performed.
The next day, 7 November, while Lee was performing
his skip tracing work, Maisonave dropped some folders
on the xerox machine and said to Lee, "Jorge make
copies." Maisonave then left. Lee, believing that Maison-
ave was not his supervisor, did not perform this work.
Sometime later Bernard Gelb approached Lee and asked
if he had done the xeroxing that Maisonave had given
him. Lee, without saying anything went to the xerox ma-
chine and began to copy. After finishing one folder, Lee
needed some clarification as to what specifically he
needed to copy of the remaining material. Lee then made
such an inquiry of Gelb. Gelb then brought over Maison-
ave, who told Lee that the assignment was the same as
he had copied the day before. Lee replied that she
should have told him this when giving him the assign-
ment and added "why can't you speak English?" Maison-
ave repeated that it was the same assignment as yester-
day, and Lee responded that how was he to know that.
At that point Maisonave went back to her office. Lee
then turned to Gelb and said, "You expect me to do
thinking after you told me not to think anymore."11
Gelb responded, "Jorge if you don't want to do your
work you can go on strike. You're a union member and
I'll clock you out." Lee replied, "So clock me out," and
then performed the remainder of the xeroxing work as-
signed to him.
Lee also was issued a warning letter dated 7 Novem-
ber. This letter accuses Lee of refusing to perfrom the
xeroxing assignment unless he was shown how to per-
form the job again, and of "screaming at the top of his
voice" and "yelling insults" at Maisonave."
The letter concludes by stating that Lee had been
warned about his behavior on 10 and 23 October and 4
November, and that "another incident of misconduct will
mean immediate dismissal."
On that same day, 7 November, about 20 minutes after
the incident with Maisonave, Lee was on his way to the
restroom. He observed Silvagnoli pull out a switchblade
assessment of the credibility of Silvagnoli or Lee in the instant matter,
where I once again was more impressed with the testimonial demeanor of
Lee.
" Lee was referring to a prior remark made to him by Gelb at some
point subsequent to 3 October. Gelb at that time told Lee that he did not
want Lee to think because he was "nuts."
12 Once again I do not credit Silvagnoli's testimony that Lee called
Maisonave "stupid." No testimony was adduced by Respondent that Lee
"screamed at the top of his lungs," during this incident. Lee credibly tes-
tified that he was not screaming or yelling.
EDP MEDICAL COMPUTER SYSTEMS 1293
knife and open it. Silvagnoli walked over towards Lee
with a knife in his hand. Silvagnoli put the knife next to
his own chest, and said, "I got you Jorge." Lee respond-
ed, "Go ahead, Joe do it." Lee then told Silvagnoli that
he had a gun with him. Silvagnoli walked away.
After leaving the bathroom, Lee approached Silvag-
noli. Lee said, "Joe, that's only equivalent to one bullet
and everybody is dead." Silvagnoli made no reply.
On 8 November, Bernard Gelb confronted Lee and
asked what he meant by "one bullet and everybody is
dead." Gelb asked if it was physical. Lee replied that his
comment was philosophical. Gelb inquired if Lee's
remark was a threat or a warning? Lee replied that he
did not threaten or warn, but he made the statement to
Silvagnoli so that next time Silvagnoli will avoid and not
harass or harm him.
Later on that same day, at 4:45 p.m., Silvagnoli came
up behind Lee while Lee was working. Silvagnoli had
the same knife that he had pulled out the day before,
once again opened. Silvagnoli pointed the knife 2-3 feet
from and towards Lee's throat and said, in an "accented"
voice, "assassin." Lee said to himself that Silvagnoli was
not joking. Silvagnoli then walked away.
The above description of the incidents of 7 and 8 No-
vember is derived primarily from the credited testimony
of Lee. I do not credit the testimony of Silvagnoli that
he not only did not threaten Lee with a knife, but that
he never even owned a switchblade knife or brought one
to work with him
In addition to relying on my overall assessment of the
credibility of Lee vis a vis Silvagnoli as described above,
I note in this instance the partial corroboration of Lee's
testimony by Burgos, to the effect that Burgos saw Sil-
vagnoli with a switchblade knife on the premises in 1985.
I have considered Respondent's contention that Lee
should not be believed in this instance because of his ad-
mitted failure to report the threats of Silvagnoli either to
Respondent's officials or to the police. While this argu-
ment has some merit, however, I am convinced that
Lee's explanation for not doing so are believable. Thus
as for not notifying Bernard Gelb or other officials of
Silvagnoli's actions, Lee's testimony that because of the
harassment that he was receiving from Respondent's offi-
cials he did not believe that such a complaint would
result in any relief is quite credible.
As for the failure to notify the police, Lee testified
that he did not do so because his vacation was due to
commence the next day, and since no physical harm had
occurred he hoped the matter could be forgotten and he
could enjoy his vacation. I find this explanation to be
persuasive as well.
Lee took his vacation as previously scheduled from 11
to 15 November. He returned to work on Monday, 18
November.
On 18 November, about 9:05 a.m., Judith and Bernard
Gelb came into the conference room while Lee was be-
ginning his work. Judith Gelb handed Lee his paycheck.
Bernard Gelb then said to Lee, "Jorge, I got your
letter." Lee thinking that Gelb was referring to another
warning letter asked what letter Gelb was talking about.
Gelb showed Lee an undated typewritten letter, ad-
dressed to George Irizzary, on Fulton Avenue in the
Bronx. 13
The letter reads as follows:
Upon our phone conversation regarding my fantas-
tic DRG/SYSTEM coming up. I hope you tell
your boss Gotel not to hesitate whatsoever conse-
quences followed after signing sweet contract to
yeld my order.
Fucking Drop Dead
B.G.
Lee read the letter and replied that it was not his, but
was for George Irizzary. Gelb stated that Lee had writ-
ten this letter to Irizzary. Lee denied that he had any-
thing to do with the letter. Gelb continued to insist that
Lee was responsible for the letter and claimed that the
letter was written by "a foreigner." Gelb then told Lee
that he was terminated.
Lee did not say anything and Silvagnoli said, "Let's
go Jorge." As they were leaving, Silvagnoli instructed
Lee to remove all his belongings from this old desk. Ber-
nard Gelb came over and instructed Lee to vacate the
premises in 2 minutes or he would call the police.
Lee then asked Silvagnoli to pack his belongings for
him and he would be back for them. Before leaving, Lee
asked Bernard Gelb to give him a written letter of termi-
nation. Gelb replied that he would sent it by mail. Lee
never received such a letter of termination.
At a subsequent unemployment compensation hearing,
for the first time, Lee was made aware of the fact that
Respondent was asserting as a reason for his termination
that Lee wrote a second letter to Martin Gotel, the vice
president and controller of Bronx Lebanon Hospital. Lee
was not shown a copy of this letter at the time.
In fact the first time that Lee became aware of the
contents of this letter was when he received a copy of a
verified complaint of a civil action filed by Respondent
against Lee, dated 13 February 1986. This complaint al-
leges that Lee injured Respondent's business by making
false and defamatory statements in two letters to Irizzary
and Gotel. The contents of the letter to Gotel, as set
forth in the complaint, reads as follows:
Concern! Sign in, the unrisky contract regarding
our DRGISYSTEM. Nothing to be disputed about.
Sign in now, and fmd out the unbelievable conse-
quence later. No changes allowed after signing.
See You Later
Smack
ME
Lee denied that he wrote or knew about either of
these letters.
In support of its contentions that Lee wrote these let-
ters, Respondent adduced testimony from Silvagnoli that
he had assigned Lee to photocopy a proposal regarding
its DRG system, sent to Bronx Lebanon Hospital, and
13 Inzzary was an official of Bronx Lebanon Hospital, one of Re-
spondent's largest customers.
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that covering letters to Irizzary and Gotel were included
therein. Additionally, Silvagnoli testified that he had
seen Lee using a typewriter on the premises of Respond-
ent.
For his part, Lee admitted knowing the identities of
Gotel and Irizzary, and having some familiarity with the
term DRG. He also admitted that he had in the past used
the typewriter at Respondent to type letters in regard to
collection work, but emphatically denied that he used
the typewriter subsequent to 3 October, when his job as-
signment was changed.
Silvagnoli also testified that on 18 November, he was
present during the conversation between the Gelbs and
Lee. According to Silvagnoli, Bernard Gelb showed
both the letters allegedly written to Irizzary as well as
Gotel to Lee. Silvagnoli asserts that Gelb asked Lee why
he wrote those letters and Lee responded, "I thought it
would be funny." I do not credit Silvagnoli's version of
this incident and find that the conversation occurred as
detailed above by Lee. I note in this connection the fact
that neither Judith nor Bernard Gelb testified herein, and
therefore failed to corroborate Silvagnoli's testimony in
this regard.
Respondent adduced no testimony nor any other evi-
dence as to who or why it suspected Lee of writing
these letters. In fact Respondent also failed to introduce
any evidence as to when or even if these letters were
ever received by Gotel, Irizzary, or Bronx Lebanon Hos-
pital, or what reaction ensued from the hospital, or what
damage, if any, Respondent suffered as a result of the al-
leged receipt of these letters.
Moreover, Respondent also failed to adduce any testi-
mony or evidence as to who, when, or on what basis the
decision was made by Respondent to terminate Lee.
B. David Burgos
Burgos testified on behalf of General Counsel in the
prior hearings on 24 September. Thereafter he continued
working in the collection department under the supervi-
sion of Daniel King.
In early October, King conducted a monthly collec-
tion department meeting. During this meeting he in-
formed employees present that the previous month had
been a bad one for collections. King added that he was
putting all the employees in the department on "notice,"
and then turned to look at Burgos. King continued as
follows, "I am not afraid of any Labor Board or any
labor movement whatsoever."
During the last week of September, King made
changes in desk assignments. Burgos was assigned to use
the desk previously occupied by employee Arthur Mac-
Donald." Notwithstanding the switch, MacDonald con-
tinued to store his files on the left side of the desk used
by Burgos.
Similarly, Burgos continued to store his old files at his
old desk, which was being occupied by another employ-
ee. Burgos did not use the right-hand drawer at his new
desk for any purpose. In fact, from the time that he was
moved to this desk until his termination on 10 October,
14 Prior to MacDonald using this desk, it was occupied by employee
Jack Stevens who passed away.
Burgos never opened the right-hand drawer of his new
desk.
On 10 October, Burgos went to lunch at 12 noon.
When he left for lunch, he left the files, which he was
working on, on top of his desk. All the drawers were
closed.
At 1 p.m. Burgos returned from lunch and began
working. A few minutes later Bernard Gelb came over
to his desk, accompanied by two police officers. Gelb
said to the police officers, "This employee." At that
point, Gelb went around Burgos, opened the right-hand
drawer, reached in and shuffled through some envelopes
in the drawer. He then pulled out two thinly rolled ciga-
rettes and said to the police, "Here they are."
One of the policemen then asked Burgos his name and
if the cigarettes were his. Burgos replied no and added
that he had never seen the cigarettes before. The police
then instructed Burgos to accompany them into the con-
ference room. The police officer told Burgos that the
Employer wanted him fired and arrested. Burgos replied
that the police could search him if they wished. The po-
liceman responded that it was not necessary to search
Burgos and that he would not be arrested. The officer
added that the charges were "bullshit." Burgos was told
to go to his desk and wait.
Burgos complied with these instructions, and a few
minutes later Bernard Gelb came over to him. Gelb told
Burgos that he was terminated and to leave the premises.
Burgos then left the premises accompanied by the police.
The police report regarding the incident reads as fol-
lows: "Found two alleged marijuana cigarettes in a desk
draw where a number of employees use desk."
Subsequently Burgos filed for unemployment insur-
ance, which was contested by Respondent. After a hear-
ing was held, an administrative law judge of the New
York State Department of Labor issued a decision on 14
January 1986. The decision found that while the Em-
ployer had found what it took to be marijuana cigarettes
in Burgos' desk, Burgos denied that they belonged to
him and no charges were brought against him.
Thus, the administrative law judge concluded that the
"credible evidence establishes that claimant was not in
possession of any marijuana cigarettes on the employer's
premises. Claimant denied possession of these cigarettes
and was not found to have placed them in the desk in
which they were found. Under all the circumstances,
claimant was discharged on non-disqualifying condi-
tions."
The only evidence or testimony adduced by Respond-
ent into the instant record with respect to Burgos con-
sisted of the testimony of Silvagnoli. According to Sil-
vagnoli, on 10 October around 12:05 p.m. Bernard Gelb
called him over to Burgos' desk. Gelb opened the
drawer and showed Silvagnoli two cigarettes. Silvagnoli
testified that these cigarettes were marijuana cigarettes.
Although Silvagnoli claimed that he never smoked mari-
juana," he was sure that these cigarettes contained man-
"Burgos, in fact, contends that he had personally seen Silvagnoli him-
self smoking marijuana at Respondent's facility. '
EDP MEDICAL COMPUTER SYSTEMS 1295
juana, because he had seen marijuana on college campus-
es and had seen friends smoke it.
Pursuant to Gelb's instructions, Silvagnoli called the
police. This was the extent of Respondent's proof in
regard to Burgos.
Thus, no testimony was given by Gelb or anyone else
as to how the alleged marijuana was discovered in
Burgos desk. Indeed no proof was adduced that the con-
tents of the cigarettes were tested or otherwise conclu-
sively determined to be marijuana.
Moreover, as was the case with Lee, no testimony was
produced as to who, when, or why the decision was
made to terminate Burgos. 16 No evidence was presented
as to any past disciplinary actions taken by Respondent
for the use of marijuana or other drugs. Nor does the
record disclose the existence of any rule at Respondent's
premises concerning the possession or use of drugs on its
premises or by its employees.
IV. ANALYSIS
A. Jorge Lee
On 3 October, Jorge Lee testified at the prior unfair
labor practice hearing, as a witness for General Counsel.
As noted above, his testimony was particularly signifi-
cant in connection with my fmding several violations of
the Act. It is clear that Respondent considered Lee,
prior to the testimony that he gave, to be a supporter of
its antiunion position. Thus, his testimony must have
come as quite a shock and surprise to Respondent's offi-
cials.
Indeed, I concluded in the prior case that Lee's testi-
mony was crucial in establishing that Respondent violat-
ed the Act by discharging the union instigator, Esther
Shaw, and by reducing the hours of many of its employ-
ees for a 3-week period. During the period of the hours
reduction, Lee was one of the few employees whose
hours were not reduced. In fact, Lee not only did not
suffer a diminution in hours, but was permitted to contin-
ue working overtime and in some cases increased over-
time hours during this period of time.17
It is therefore not surprising that Respondent, having
treated Lee in this fashion and after using him as a spy to
surveil union meetings, would not anticipate and be
greatly angered by Lee's giving such testimony at the 3
October hearing.
It is also not very astonishing, particularily in view of
Respondent's past conduct, how it reacted when Lee re-
turned to work after so testifying. Thus for 2 consecutive
hours, Judith Gelb stood 2-1/2 feet away from Lee and
observed him working. This was the first time that
Judith Gelb had ever stood and observed Lee working
for any significant period of time. Indeed the record in
the prior trial revealed that Judith Gelb's responsibilities
as director of personnel and secretary-treasurer did not
generally involve day-to-day supervision of employees.
16 I once again note the failure of Bernard Gelb to testify here.
17 Moreover, I also found that Respondent discrimmatorily eliminated,
for all practical purposes, overtime for three key union adherents—Bera-
dino, Smith, and Valentine—while continuing to allow Lee to work in-
creased overtime hours.
During that same afternoon, Lee's job assignment was
changed from the more responsible ECB payments and
receivables work to the more routine and less skilled skip
tracing functions."
The very next day, 4 October from 9 a.m. to 4 p.m.
almost the entire workday, Lee was assigned to perform
even more routine xeroxing work. He had never been as-
signed xeroxing work for such a duration at any time in
the past. In fact the majority of his past xeroxing assign-
ments had occurred while he was working overtime
hours.
On 8 October a few days later, Lee's work station was
changed, and he was assigned to perform skip tracing
work in the conference room, isolated from all the other
employees. From that date to the date of his discharge,
on 18 November, two-thirds of his time was spent work-
ing in the conference room. This assignment was made,
notwithstanding Lee's belief, expressed to Respondent's
officials, that Lee's time was not being wisely utilized in
the conference room and that his use of the computer in
connection with skip tracing was largely a waste of time.
About 23 October, Lee was notified by King that
henceforth he would be required to take his lunch hour
at 12 noon, contrary to past practice, wherein Lee had
been permitted to choose the time that he went to lunch.
In assessing the legality of Respondent's actions as set
forth above in regard to Lee, it is necessary to initially
determine if the General Counsel has established whether
"protected" activity engaged in by Lee were "motivat-
ing" factors in Respondent's decisions to make these
changes in Lee's working conditions. NLRB v. Transpor-
tation Management Coq., 462 U.S. 393 (1983); Wright
Line, 251 NLRB 1083 (1980).
find that a compelling prima facie case has been so
established. Thus, immediately on Lee's return from fur-
nishing significant testimony adverse to Respondent's in-
terests at the hearing, he was reassigned to perform less
responsible work and was stared at by Judith Gelb for 2
consecutive hours while working. The very next day he
was assigned xerox work for almost the entire day, fol-
lowed by a change of his work station to a room isolated
from other employees. Shortly thereafter, his privilege of
taking a flexible lunch hour was revoked. The timing and
abruptness of these actions in relation to Lee's testimony
at the hearing would be in and of itself sufficient to es-
tablish a prima facie case that these changes were moti-
vated by Lee's NLRB participation. Riley-Beaird, Inc.,
259 NLRB 1339, 1344, 1366 (1982); La Reina, Inc., 275
NLRB 1494 (1985).
Moreover, it is apparent and I find that Lee's testimo-
ny at the hearing convinced Respondent that Lee had
switched his allegience and had become a union support-
er. This is clearly demonstrated by comments made to
Lee by both Judith and Bernard Gelb. Thus on 10 Octo-
ber, when Lee asked Judith Gelb about his vacation, she
replied that she could not speak to him because he had a
union representative. Similarly, during a discussion with
Bernard Gelb on 23 October about work problems, Gelb
18 While Lee had performed this skip tracmg work m the past, he had
not been assigned such work for over a year.
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said to Lee, "If you don't want to do the work you can
go on strike. You're a union member and I'll clock you
out." I fmd these remarks of the Gelbs to be confirma-
tion of my belief that Respondent, as a result of his 3 Oc-
tober testimony, considered Lee to be a union supporter,
as well as constituting animus towards Lee's union and
NLRB activities.
Additionally, I rely on my findings and conclusions in
the prior case. I note the substantial and serious viola-
tions that I found therein, including numerous 8(a)(1)
violations, discharges, reductions in hours and overtime,
and other discriminatory changes in conditions of em-
ployment of Respondent's employees.
I note particularly my finding with respect to union
adherent Linda Beradino, wherein I found that Respond-
ent discriminatorily continued to assign her keypunching
work in the hope that she would quit.
Accordingly, a strong and compelling inference is
warranted that Respondent's actions with regard to Lee
were motivated by Lee's testimony at the hearing as well
as his activities and support of Local 888. The burden
then shifts to Respondent to establish that it would have
taken the same action that it took (i.e., changing Lee's
work assignments and work station, Judith Gelb observ-
ing his work continuously for 2 hours, and changing his
lunch hour procedure), absent Lee's engaging in such ac-
tivities. Transportation Management, supra; Wright Line,
supra.
Respondent, however, produced virtually no testimo-
ny or evidence to meet its burden in this regard. Thus
neither Dan King nor either of the Gelbs testified. No
one from Respondent testified as to who made the deci-
sion to change Lee's work assignments or work station,
to assign him xerox work for nearly the entire day, to
watch his work consistently for 2 hours, or to change his
lunch hour procedure. Additionally, no one testified as
to why these actions were taken.
The only testimony adduced by Respondent even re-
motely related to any of these issues was given by Sil-
vagnoli. Silvagnoli confirmed testimony given by Lee,
that even when he was performing his prior work, ECB
posting, Lee would also utilize the same computer that
he was told to use in connection with skip tracing work.
As noted Lee conceded that this was so, but contend-
ed in unrefuted testimony that using the computer to
check addresses was largely a waste of time because it
always corresponded to the address on the printout
sheet.
Silvagnoli testified, however, that when he used the
computer to do the ECB posting work," he also would
check to see if the addresses were correct. This evidence
of course is far from sufficient to explain why Respond-
ent changed Lee's work assignments and work station, as
noted above, particularly since there is no testimony that
Silvagnoli was involved in Respondent's decisions in that
regard.
Respondent argues in its brief that Lee's new assign-
ment was identical to his prior work, in that both assign-
ments involved use of the computer to check outstanding
balances. However, the unrefuted testimony of Lee is to
Silvagnoli apparently did ECB posting work as well as Lee.
the contrary and establishes that his use of the computer
in his new assignment was for a different purpose (i.e.,
checking addresses rather than balances), and that more-
over his new assignment involved extensive use of tele-
phone books. It is thus clear and I fmd that the new
work assignments to Lee were less responsible than his
prior assignments, and isolated him from other employ-
ees, and that Respondent has not proven that it would
have made these assignments, absent Lee's testifying at
the hearing and his supporting Local 888-. Thus Respond-
ent has violated Section 8(a)(1), (3), and (4) by such con-
duct. South Nassau Communities Hospital, 262 NLRB
1166, 1172 (1982); Lowery Trucking Co., 200 NLRB 622,
627 (1972); Riley-Beaird, supra; Inductive Components, 271
NLRB 1448 (1984); Hall of Mississippi, Inc., 249 NLRB
774, 779 (1980).2°
As to Judith Gelb's actions in spending 2 consecutive
hours staring at Lee from 2 feet away, no explanation
was given for such conduct. Thus, particularly where
Judith Gelb ordinarily is not involved in day-to-day su-
pervision of employees, such conduct is also violative of
Section 8(aX1), (3), and (4) of the Act. Carillon House
Nursing Home, 268 NLRB 589, 594 (1984); Jaybil Steel
Products, 258 NLRB 1180, 1189 (1981), La Reina, supra.
Respondent also failed to adduce any testimony, nor
offer any explanation as to why it initiated a new policy
requiring Lee to take his lunch at 12 noon. 21 According-
ly, this action of Respondent is violative of Section
8(a)(1), (3), and (4) of the Act, and I so find. Larsen
Supply Co., 251 NLRB 1642 (1980); Olympia Plastics Co.,
266 NLRB 519, 535 (1983).
Between 10 October and 7 November, Respondent
issued four warning letters to Lee, allegedly for various
actions of Lee that Respondent considered to be improp-
er behavior. It is alleged by General Counsel that the is-
suance of these warning letters, as well as Respondent's
conduct in precipitating some of the underlying incidents
contained therein, was violative of Section 8(a)(1), (3),
and (4) of the Act. Once again the timing of the warn-
ings and incidents, occurring between 7 and 35 days after
Lee's damaging testimony against Respondent, renders
them highly suspicious. When Respondent's pervasive
animus and previous violations, including the above-de-
scribed unlawful work assignment changes, closer super-
vision, and change of lunch hour procedure, with regard
to Lee are considered, a compelling inference is warrant-
ed that the warnings were equally unlawful. Thus, I con-
clude that the General Counsel has established that Lee's
testimony at the hearing and his union activities were
motivating factors in Respondent's actions taken in con-
nection with these warning letters issued to Lee.
22 I note that the changes in Lee's work assignments and work station
need not have an adverse effect on his wages or even his working condi-
tions in order to be discriminatory and violative of the Act. Redway Cor-
ners, 274 NLRB 1359, 1401 (1985); South Nassau, supra; Lowery Trucking,
supra.
21 Respondent argues in its brief that all employees including Lee
always had a fixed lunch hour, and that Lee was merely offered the
choice of changing from 1 p m. to 12 noon. However, Respondent of-
fered no testimony or other evidence in support of this contention, and
Lee's testimony stands =rebutted that, at least in his case, he had been
permitted a flexible choice of lunch hour prior to 23 October.
EDP MEDICAL COMPUTER SYSTEMS 1297
The burden then shifts to Respondent to establish that
it would have issued these warnings letters absent Lee's
union and testimonial activities. Respondent has fallen far
short of meeting such a burden. In fact neither Gelb tes-
tified nor Respondent adduced any evidence as to who,
why, or when it made the decisions to issue these warn-
ing letters. No evidence was introduced of Respondent
ever having issued any previous warning letters to any
employees for the type of conduct involved herein. In
fact the record reveals that Lee had never received any
warnings, written or oral, prior to his testifying at the
trial on 3 October.
Moreover, an analysis of the warning letters and the
events underlying their issuance only serve to reinforce
the conclusions that they were unlawful, rather than
meeting Respondent's burden of establishing that it
would have taken the same action absent Lee's protected
conduct.
On 10 October Lee received a warning letter accusing
him of failing to perform assigned clerical work, being
observed walking aimlessly in the production area, and
being belligerent and offensive in discussing his conduct
with Judith Gelb.
The facts, however, reveal that Lee was not assigned
any work to do that morning, but was told by Silvagnoli
and Judith Gelb to sit at a desk and wait until a meeting
concluded in the conference room, where all his work
was located. In fact, Lee protested to Silvagnoli that all
his work was in the conference room, but Silvagnoli in-
sisted that he remain at the desk until the conference
room was free.
In addition, no evidence was adduced that Lee was
observed or was "aimlessly walking in the production
area" or that he was belligerent or offensive in discussing
his conduct with Judith Gelb.
In fact the only evidence in regard to such discussions
was Lee's protest to Gelb when he received the warning
letter that the charges were false and that he wished to
discuss them. Subsequently in Judith Gelb's presence,
Lee confronted employees Nosel and Rhett about their
alleged accusations against him that formed the remain-
ing portion of the letter (i.e., that he had intercepted
phone calls). Both Nosel and Rhett denied knowing any-
thing about any such interceptions by Lee or of having
so notified Judith Gelb.22
The warning letter of 23 October, referring to three
separate incidents, warrants a similar conclusion. Thus,
the claim that Lee refused a work assignment and yelled
loudly on 18 October is refuted by Lee's credible testi-
mony that he merely questioned King as to the value of
doing this work, and that King replied that Lee should
do what he is told and if not he could leave.2
The further assertion in the warning letter that Lee
disappeared from his desk for 42 minutes was also mac-
22 I also note that it was during the course of this day that Judith
Gelb, in answer to Lee's request for vacation information, told Lee that
she could not talk to him because he had a "union representative."
22 Note that I have previously found that the assignment of this work
to Lee, as well as the change in his work station to perform it, was dis-
miminatorily motivated.
curate, as in fact he was only gone 5-6 minutes to use
the restroom in the production area.24
The additional allegation in the letter that Lee refused
to comply with the order to change his lunch hour was
pure fabrication. The record contains no evidence that
Lee so refused.
Finally, the letter accused Lee of screaming and dis-
turbing the office when being given simple instructions.
In fact the record reveals with respect to this incident
that King precipitated the incident by yelling at Lee, re-
ferring to him as "hey, hey," and threatening him with
discharge if he did not perform the assignment in a
manner in which he had not been previously instructed.
The 4 November warning, dealing with Lee's actions
regarding Joe Diggs' briefcase, accused Lee of interrupt-
ing the office and getting involved in matters not of his
concern, wherein Diggs allegedly was merely concerned
with knowing the location of his briefcase. In fact, as I
have found, Lee had previously borrowed the briefcase
from Diggs, and Diggs had specifically asked that it be
returned to him. Thus, it was not unreasonable for Lee
to believe that he who had borrowed it was responsible
for returning the briefcase to Diggs.
Finally, the 7 November warning letter contended that
Lee, in a dispute with employee Mais' onave over per-
forming xerox work, screamed and insulted Maisonave
and disturbed the entire office. The record does not es-
tablish that Lee either screamed at or insulted Maisonave
during this incident. While Lee does admit to making the
comment to Bernard Gelb to the effect that he was not
going to do any more thinking, as reflected in the warn-
ing letter, the record also establishes that shortly prior
thereto Gelb had told Lee that Gelb did not want Lee to
think, because Lee was "nuts."
I am convinced that these warning letters were fabri-
cated and unjustified, or based on relatively trivial con-
duct. I find that they were part of a pattern of Respond-
ent's conduct to harass Lee into quitting and/or to build
up a disciplinary record in order to justify his eventual
discharge, for the purpose of punishing him for his union
activity and his testimony under the Act. Riley-Beaira
Inc., 259 NLRB 1339, 1351 (1982); Roadway Express, 274
NLRB 357, 370, 371 (1985); La Reina, supra.
I am also persuaded that Respondent's conduct in
regard to several of these incidents in closely supervising
and harassing Lee and attempting to provoke him into
misconduct is independently violative of the Act. I find
that the conduct of King and Judith Gelb on 10 October,
and King again on 18 and 23 October, of either unjustly
criticizing and or yelling at Lee and then suggesting that
Lee quit or go home or leave or be fired, is violative of
the Act.22
24 I note that Bernard Gelb badgered and mtimidated Lee Into admit-
ting that he was gone for 45 minutes, and I conclude that Lee so admit-
ted in order that Gelb would leave him alone.
22 Indeed the suggestion to Lee that he quit, I find to be motivated by
his union and protected conduct, and also to be violative of the Act in
and of itself. Nueva Engineering, 269 NLRB 999, 1004 (1984), enfd. 761
F.2d 96 (4th Cir. 1985). I note that I have found in my prior decision that
Respondent violated Sec. 8(a)(1) of the Act by virtue of Bernard Gelb
making similar remarks to employees Beradino and Valentine. See 284
NLRB 1232, 1267 and cases cited therein
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Similarly, I find that Bernard Gelb's action with
regard to falsely accusing Lee of being absent from work
for 45 minutes and badgering him into admitting that he
had done so was motivated by Lee's protected conduct
and was also violative of the Act.
I conclude therefore that these actions of Respondent,
of close supervision, harassment, and/or abusive conduct
toward Lee, were effectuated in conjunction with the
subsequent warnings themselves and were also deliber-
ately and unlawfully devised by Respondent to either
provoke Lee to voluntarily resign or to remove him by
eventual termination. La Reina, Inc., supra; Riley-Beaird,
supra; Bonanza Sirloin Pit, 275 NLRB 310 (1985); Sure
Tan, Inc., 234 NLRB 1187, 1191 (1978).
Additionally, I find that Silvagnoli's actions on 7 and 8
November, with regard to "pulling" a knife on Lee, con-
stituted implied threats of bodily harm and were also
motivated by his union activity and his giving testimony
under the Act. 26 Such conduct is violative of Section
8(a)(1) of the Act. Davis Coal Co., 266 NLRB 1072, 1073
(1983); Pyro Mining Co., 230 NLRB 782 (1977); Sackett's
Welding, 207 NLRB 1030 (1973); Courtesy Volkswagen,
200 NLRB 84, 92 (1972).
On 18 November Lee was terminated by Respondent.
Lee was confronted by Bernard Gelb with a letter that
Respondent accused Lee of writing to one of its custom-
ers. Notwithstanding Lee's unequivocal denial of any in-
volvement in the letter, Gelb insisted that Lee was re-
sponsible for its being written and sent and discharged
him on the spot. Gelb then ordered Lee to vacate the
premises immediately and failed to send him a written
letter of termination as Lee had requested.
In evaluating Lee's discharge, it once again is neces-
sary to use the Transportation Management and Wright
Line analysis. Once again, a strong and compelling prima
facie case of discriminatory motivation has been estab-
lished. Thus the timing of Lee's 3 October testimony, the
aforementioned pervasive antiunion campaign conducted
by Respondent, and Respondent's unlawful conduct of
changing Lee's job assignments, lunch hour procedures,
closely supervising, harassing, and issuing him four dis-
criminatory warning letters in the space of 35 days, all
serve to establish beyond any question, that Lee's testi-
mony at the hearing, as well as his union involvement,27
were motivating factors in Respondent's decision to dis-
charge him on 18 November.
Once more, Respondent bears the burden of establish-
ing that it would have taken the same action against Lee
(i.e., termination), absent Lee's engaging in protected
conduct. As was the case in regard to prior actions taken
by Respondent, it has fallen short of meeting such
burden. It once again bears emphasis that neither Ber-
nard nor Judith Gelb testified herein. Additionally, no
one testified on behalf a Respondent as to who made
26 While Silvagnoli made no reference to the Union or Lee's testimo-
ny, at either of these incidents, based on the context of the antiunion
campaign, the unprecedented and bizarre nature of Silvagnoli's conduct,
as well as the absence of any other explanation, I can only conclude that
they were so motivated Bronx Metal Polishing Co., 268 NLRB 887, 889
(1984).
27 I also note in this regard the antiunion statements made to Lee by
both Bernard and Judith Gelb during the month of October.
the decision to discharge Lee, when such a decision was
made, nor what factors were taken into consideration
therein. Moreover, while presumably Respondent's asser-
tion that Lee was responsible for sending letters to its
customer was at least a contributing factor to its actions,
it presented scant testimony in that regard. Thus, Re-
spondent failed to adduce any testimony or evidence that
these letters were ever actually received by its customer,
nor how the customer reacted to them, nor what affect,
if any, these letters had on its relationship with the cus-
tomer.
While Respondent did adduce some testimony that
Lee was aware of the names of the individuals of the
hospital, was familiar with the term "DRG proposal,"
and had used a typewriter in the past, no testimony was
introduced that, based on these and or other factors, Re-
spondent suspected Lee of sending the letters.
Respondent argues in its brief that Lee was terminated
for a series of incidents culminating in Lee's conduct of
sending the letters to its client, the Bronx Lebanon Hos-
pital. The brief makes reference to the various warning
letters issued to Lee and the incidents underlying same.
Because as I have found above these warning letters
were discriminatorily motivated, they, of course, cannot
be relied on to justify Lee's subsequent termination.
Respondent's brief also refers to a number of other in-
cidents that allegedly contributed to its decision to termi-
nate Lee. The record does contain some testimony to the
effect that Lee became upset sometime in September
when he discovered that other employees were making
more money than he. According to Respondent, Lee
shortly thereafter after being denied a raise, "unilaterally
changed his working hours, turned in his keys, refused to
open up the office at 7 in the morning, refused to pick up
the mail and refused to stay late." However, Lee con-
tends that he did turn in his keys to Judith Gelb because
he would not be in the next day, and never asked for
them back.
While I find Lee's explanation of this incident to be
rather unpersuasive, I am not convinced that Lee's con-
duct in this regard had any bearing on Respondent's de-
cision to terminate him. Aside from the most obvious
fact, that no record testimony even suggests that Lee's
conduct in "unilaterally changing his hours" motivated
Respondent's termination decision, it is also noted that
Respondent failed to issue a written or an oral warning
to Lee based on this allegedly improper conduct.
Respondent's brief also refers to Lee's conduct in
making unwarranted advances to fellow employee Mari-
lyn Nosel. While there is some record testimony support-
ing such contention, including admissions by Lee him-
self, once again Respondent has not proven any cornice-
tion between this conduct of Lee and his discharge.
Once more, the record fails to disclose that Respondent
issued any written warnings to Lee relating to his con-
duct towards Nosel. It is difficult to imagine how Re-
spondent could assert that it discharged Lee for this
reason, when it issued four written warnings to Lee over
other matters, and failed to do so with respect to his
conduct vis a vis Nosel. Additionally of course, the
record is again totally silent as to any testimony or evi-
EDP MEDICAL COMPUTER SYSTEMS 1299
dence that Lee's relations with Nosel was considered by
Respondent in its decision to terminate him.
Respondent's brief also refers to the admitted threat
made by Lee to Silvagnoli that he had a gun and "that's
equivalent to one bullet and everybody is dead." While
in and of itself, one could consider such a remark to
have warranted some disciplinary action, Lee's statement
must be evaluated in the context of his treatment by Re-
spondent in general, and Silvagnoli in particular.
Thus, I have found that Respondent engaged in an in-
tensive unlawful campaign of harassment, work changes,
closer supervision, and four written warning notices, in
an attempt to provoke Lee into quitting and or to build
up a record justifying his discharge. In this context, Sil-
vagnoli provoked Lee further by threatening him with a
knife for similar unlawful reasons.
Particularly, where as here, Lee explained credibly
that he made his remark to Silvagnoli, to induce Silvag-
noli to avoid and not to harass or harm him, I find that
Lee's statement was not so unreasonable in relation to
Respondent's provocative harassment as to justify dis-
charge. E. I. DuPont, 263 NLRB 159, 160 (1982), and
cases cited therein.
In any event, as in the case of the prior two incidents
referred to above, no written warnings were issued to
Lee pertaining to this behavior of Lee, nor does the
record contain any evidence that this "threat" made by
Lee was considered by Respondent in deciding whether
to discharge him.
Finally, Respondent in its brief refers to the final inci-
dent involving the letters allegedly sent by Lee to its
client. Respondent asserts therein that Lee admitted to
sending these letters to the hospital, and that his "cava-
lier response that the letters were funny merely repre-
sents one other incident in his irresponsible and irrational
work conduct." Because I have not credited Silvagnoli's
testimony that Lee admitted sending the letters, and
credited Lee's testimony that he unequivocally denied
any involvement in the letter 28 when confronted by Re-
spondent, Respondent cannot rely on this alleged admis-
sion to meet its burden of proof.
As to Respondent's further contention in its brief that
the letters "seriously jeopardized our client relationship,"
the record is bereft of any testimony or evidence to this
effect Indeed, the record fails to even establish that the
customer received the letters, much less that the letters
had any effect on Respondent's relationship with the hos-
pital.
Finally, Respondent has failed to introduce any testi-
mony as to who suspected that Lee wrote these letters,
why that person so believed, or what investigation Re-
spondent conducted as to Lee's alleged involvement.
This failure, coupled with the aforementioned absence of
any record testimony as to who, when, or why Respond-
ent decided to discharge Lee, further reinforces my con-
clusion that it has not met its burden of establishing that
28 As noted Lee was only confronted with one of the two letters at
the time of his discharge. He first became aware of the second letter
when it was brought up by Respondent at the subsequent unemployment
insurance hearing.
it would have terminated Lee absent his protected con-
duct.
Accordingly, Respondent has violated Section 8(aX1),
(3), and (4) of the Act by discharging Lee. I so find.
B. David Burgos
As noted above and in my prior decision, David
Burgos was out on bereavement leave when Local 888
made its initial public appearance at Respondent's prem-
ises on 28 February. When he returned to work on 4
March, he was unlawfully warned by Silvagnoli not to
get involved with the Union. Burgos, however, dis-
obeyed these instructions and shortly thereafter attended
union meetings, signed union cards, and appeared at the
representation hearing a union supporter. Burgos was
part of the group of employees whose hours were there-
after reduced in violation of Section 8(a)(1) and (3) of
the Act.
Thereafter, on 26 April, Respondent further violated
Section 8(a)(1) and (3) of the Act by "calling" in Burgos'
loan and deducting moneys from his salary without his
consent.
Respondent's campaign of intimidation and unlawful
conduct with regard to Burgos continued on 6 June, the
day of the election. At that time Respondent violated
Section 8(aX1) of the Act by two attempts of its agents
to persuade Burgos not to vote in the election, by prom-
ising him benefits, including a raise and that "everything
will be forgotten." However, once again Burgos ignored
Respondent's unlawful entreaties to cease engaging in
union activities, and not only voted in the election, but
acted as the union observer.
It is again not very astounding that Respondent, obvi-
ously angered by Burgos' failure to obey its instructions
with regard to union activities, issued an unlawful warn-
ing to Burgos on 25 July, in violation of Section 8(a)(1)
and (3) of the Act.
On 24 September, Burgos gave testimony at the prior
NLRB hearing, detailing the above events, which gave
rise to my finding the above-described violations of the
Act in my decision.
In early October, during a collection department meet-
ing, Supervisor King while looking straight at Burgos,
stated, "I am not afraid of any Labor Board or any labor
movement whatsoever." I fmd these remarks of King to
be an obvious reference to Burgos' testimony at the hear-
ing and to establish additional evidence of Respondent's
animus towards such activities. This comment, coupled
with the timing of Burgos' discharge in regard to the
hearing, Respondent's previous unlawful treatment of
Burgos, the above-described unlawful actions taken in
regard to Lee, as well as Respondent's pervasive and in-
tense antiunion campaign, demonstrates that Burgos' tes-
timony at the hearing and his union activity were moti-
vating factors in Respondent's decision to terminate him
on 10 October.
An examination of the purported reasons for Respond-
ent's termination of Burgos once more only serves to re-
inforce that conclusion, rather than meeting Respond-
ent's burden of establishing that it would have dis-
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charged Burgos absent his engaging in such protected
conduct.
Respondent argues in its brief that Burgos was termi-
nated for cause, because Burgos was found to be in pos-
session of marijuana. Respondent stresses the fact that
Burgos never denied that the cigarettes found in his
drawer belonged to him. This contention is simply not
supported by the record. According to the credible and
uncontradicted testimony of Burgos, when asked by the
police whether the cigarettes were his, he replied no and
added that he had never seen them before. Notwith-
standing this denial and the police officer's failure to
arrest Burgos, as Respondent had requested, Burgos was
terminated. Indeed it is clear that Respondent had made
up its mind to discharge Burgos before calling the police,
and that this decision was made without any inquiry
being made by Respondent of Burgos as to his knowl-
edge or ownership of the cigarettes.
Indeed, it must again be emphasized that, as in the case
of Lee, no testimony or evidence was offered by Re-
spondent as to its decisionmaking process in deciding to
discharge Burgos. Thus no evidence was presented re-
garding how Respondent became aware of the alleged
marijuana cigarettes, or what investigation it thereafter
conducted, including whether it inquired of the other
employee who utilized the desk whether he was familiar
with the cigarettes.
Thus Respondent has fallen far short of establishing
that it reasonably believed that the cigarettes belonged to
Burgos, much less that in fact he was in "possession" of
the marijuana as it contends.
Moreover, both the police who failed to arrest Burgos
and referred to Respondent's charges as "bullshit," 29 and
the unemployment judge," relying on the fact that
Burgos was not found to have placed the cigarettes in
the desk, concluded that it was not established that
Burgos was in possession of the marijuana.
Finally, assuming arguendo that Respondent had estab-
lished that Burgos was in "possession" of the marijuana
cigarettes, I conclude that it still failed to meet its burden
of establishing that it fired him for this reason. Even
apart from its failure to adduce testimony as to its deci-
sionmaking process, Respondent adduced no testimony
or other evidence of the existence of any rule at Re-
spondent forbidding the possession or use of drugs by its
employees.
In this regard, Respondent's brief refers to a two-page
document attached thereto, entitled "Rules and Regula-
tions," dated 29 July 1985. This document states that vio-
lators of these rules will be subject to disciplinary action
up to and including discharge. One of the items included
on such a list refers to "possession or sale of illicit drugs
on company property." However, this document was
never authenticated nor introduced into the record at the
trial herein, and was one of the documents that I have
29 I note that the police report stressed that a number of employees
use the desk where the cigarettes were found
" While unemployment decisions are not controlling, they do have
some probative value, and I have considered these findings as corrobora-
tive of the conclusions that I have reached herein, that Respondent has
not proven that the cigarettes belonged to Burgos. Leshner Corp. 260
NLRB 157, 159 (1982).
stricken from the record, based on General Counsel's
motion described above. Therefore, Respondent cannot
place any reliance on such a document in meeting its
burden of proof.
Morever, Respondent has failed to establish that it has
ever disciplined or terminated any employee for posses-
sion or use of drugs. In fact, as set forth in detail in the
prior record, and in my prior decision, employee Law-
rence Wilson was arrested for possession of marijuana, as
well as fare-beating while performing his job as a mes-
senger on 3 June. Not only did Respondent not discipline
or discharge Wilson at that time, but 2 days later on 5
June offered to forget Wilson's past conduct if he took
an extra sick day and failed to vote in the union election
on 6 June. By this conduct Respondent has demonstrated
that it was willing to overlook its employees' miscon-
duct, such as possession of marijuana, in exchange for
their foregoing union activity. Under these circum-
stances, Respondent cannot successfully raise Burgos' al-
leged conduct as the reason for his discharge. United Art-
ists Theatres, 275 NLRB 158 (1985).
Accordingly, based on the above analysis, I conclude
that Respondent has failed to demonstrate that it would
have terminated Burgos absent his union activity and his
having given testimony at the NLRB hearing. Therefore,
I find that by terminating Burgos Respondent has com-
mitted unfair labor practices in violation of Section
8(a)(1), (3), and (4) of the Act.
CONCLUSIONS OF LAW
1. Respondents EDP Medical Computer Systems, Inc.,
Consumers Subscription Center, Inc., and Consumers
Subcription Service, Inc., and each of them are employ-
ers engaged in commerce within the meaning Section
2(6) and (7) of the Act.
2. Local 888, United Food and Commercial Workers
International Union, AFL-CIO, the Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By suggesting that employees quit or resign their
employment, and by threatening employees with bodily
harm, in reprisal for their activities on behalf of or sup-
port for the Union or because of their having given testi-
mony under the Act, Respondents have violated Section
8(a)(1) of the Act.
4. By verbally harassing employees, more closely su-
pervising their work, changing employees' work assign-
ments and work station, changing their lunchbreak pro-
cedures, issuing warning letters, and discharging and re-
fusing to reinstate their employees, because of
(a) the employees' support for and activities on behalf
of the Union, Respondents have violated Section 8(a)(1)
and (3) of the Act.
(b) the employees' having given testimony at an
NLRB hearing, Respondents have violated Section 8(a)
(1) and (4) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6)' and (7) of the Act.
THE REMEDY
Having found that Respondents have violated Section
8(a)(1), (3), and (4) of the Act, I shall recommend that
EDP MEDICAL COMPUTER SYSTEMS 1301
they cease and desist therefrom, and take certain affirma-
tive action designed to effectuate the purposes of the
Act. Having found that Respondents discriminatorily dis-
charged and refused to reinstate David Burgos and Jorge
Lee, I shall recommend that Respondents be ordered to
offer these employees immediate and full reinstatement
to their former positions of employment or, if these posi-
tions are not available, to substantially equivalent posi-
tions, without prejudice to their seniority or other tights
and privileges previously enjoyed.
Respondents shall also be ordered to make whole these
employees for any losses they may have suffered by
reason of the discrimination against them The loss of
earnings for Burgos and Lee shall be computed in the
manner prescribed in E W. Woolworth, 90 NLRB 289
(1950), and shall include interest as set forth in Isis
Plumbing Co., 138 NLRB 716 (1962), and Florida Steel
Corp., 231 NLRB 651 (1977).
I shall also recommend that Respondents remove from
their files any reference to the discharge of Burgos, as
well as the discharge of and warning letters issued to
Lee, and notify these employees in writing that this has
been done and that evidence of these actions will not be
used by Respondents as a basis for future personnel ac-
tions agains. them. See Sterling Sugars, 261 NLRB 472
(1982).
In my prior decision, I found that in view of the fla-
grant and multiple violations committed by Respondents
therein, which emanated principally from their president,
Bernard Gelb, that Gelb should be required to personally
read a copy of the notice to employees that shall contain
a broad cease-and-desist order to its employees in the
presence of a Board agent. Since the instant case reveals
that Respondents have continued to engage in similar un-
lawful conduct, for the reasons and authority cited in my
prior decision, it is appropriate that Gelb should be simi-
larly ordered here.
The complaint requests that the remedy should include
a visitatorial clause authorizing the Board, for compli-
ance purposes, to obtain discovery from Respondents
under the Federal Rules of Civil Procedure. I find it un-
necessary to include such a clause in my recommended
Order. See Bridgeway Oldsmobile, 281 NLRB 1246
(1986); Northwind Maintenance Co., 281 NLRB 317
(1986).
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edoi
ORDER
The Respondents, EDP Medical Computer Systems,
Inc., Consumers Subscription Center, Inc., and Consum-
ers Subscription Service, Inc., Jamaica, New York, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
31 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findmgs, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Suggesting that employees quit or resign their em-
ployment, or threatening employees with bodily harm, in
reprisal for their activities on behalf of or support for
Local 888, United Food and Commercial Workers Inter-
national Union, AFL-CIO, or because of their having
given testimony under the Act.
(b) Verbally harassing their employees, subjecting
them to closer supervision, changing their employees'
work assignments, work locations, or lunch hour proce-
dures, because of the employees' support for or activities
on behalf of the Union, or because the employees gave
testimony under the National Labor Relations Act.
(c) Issuing warnings letters to or discharging or other-
wise discriminating against their employees because of
the employees support for or activities on behalf of the
Union or because they gave testimony under the Nation-
al Labor Relations Act.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization to form, join, or assist the Union or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from the exercise of such activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer David Burgos and Jorge Lee immediate and
full reinstatement to their former positions of employ-
ment or, if these jobs no longer exist, to sUbstantially
equivalent positions, without prejudice to their seniority
and other rights and privileges previously enjoyed.
(b)Make whole David Burgos and Jorge Lee for any
loss of earnings and other benefits suffered by them as a
result , of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(c) Remove from their files any reference to the dis-
charges of David Burgos and Jorge Lee and he written
warnings issued to Jorge Lee and notify these employees
in writing that this has been done, and that cvidence of
these unlawful terminations or warnings will not be used
by them as a basis for future personnel actions against
such employees.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at their place of business in Jamaica, New
York, copies of the attached notice marked "Appen-
dix." 32 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by
the Respondents' authorized representative, shall be
posted by the Respondents immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
32 If this Order is enforced by a judgment of a United States court of
appeals, the words m the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcmg an Order of the National
Labor Relations Board."
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) At such reasonable time after entry of this Order as
the Board may request, convene during the working
time, and by departments and shifts if necessary, all em-
ployees at their facility and have the attached notice
marked "Appendix" read to the employees by President
Bernard Gelb. The Board shall be afforded a reasonable
opportunity to provide for the attendance of a Board
agent.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondents
have taken to comply.