Accent Maintenance Corp.

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 294 (N.L.R.B. 1991)

294
303 NLRB No. 39
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 25, 1991, the judge issued an erratum.
2 The General Counsel has excepted to the judge’s omission of Jose Mejias
from the group of employees who were discriminatorily discharged by the Re-
spondent on October 30, 1989. Mejias was included in an amendment to the
complaint listing the names of the employees whom the General Counsel al-
leged were discriminatorily discharged. The evidence shows that, like the 18
employees whom the judge named in his recommended Order, Mejias signed
a union authorization card on October 26; his last day of work was October
27; he was terminated on October 30; and his timecard shows a capital ‘‘T’’
after his last day of work. Supervisor Orestes Paiva indicated that the October
30 discharges occurred because those employees had signed authorization
cards. The Respondent has provided no evidence that Mejias was not unlaw-
fully discharged on October 30, 1989. We agree with the General Counsel that
the judge’s omission of Mejias was inadvertent, and we shall include him
among those employees who were discharged in violation of Sec. 8(a)(3).
We shall also modify par. 1(c) of the judge’s recommended Order to correct
an inadvertent error.
Accent Maintenance Corp. and Service Employees
International Union, Local 32E, AFL–CIO.
Case 2–CA–23930
May 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On January 8, 1991, Administrative Law Judge Ray-
mond P. Green issued the attached decision.1 The Gen-
eral Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ac-
cent Maintenance Corp., White Plains, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) Discharging employees in order to discourage
membership in or activities on behalf of Service Em-
ployees International Union, Local 32E, AFL–CIO.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Offer immediate and full reinstatement to the
employees named below to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them
in the manner set forth in the remedy section of the
decision.
William Arroyave Christian Lopez
Alfonso Celis Miguel Rodriguez
Cynthia Cortez Beatriz Pescador
Jose Flores John Truyol
Patricio Levia Roberta Uriosteque
Pablo Marino Gladys Villanueva
Paola Mena Augustin Zepeda
Claudio Quijada Carlos Orellana
Maria Nunez Christian Leiva
Jose Mejias
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to report our employees to
the immigration service, in order to induce them to re-
frain from union activities.
WE WILL NOT promise to rehire employees if they
withdraw from the Union.
WE WILL NOT discharge our employees in order to
discourage membership in or activities on behalf of
Service Employees International Union, Local 32E,
AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to the employees named below im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
295ACCENT MAINTENANCE CORP.
1 After the hearing closed, I issued an order denying certain amendments
that were proposed by the General Counsel during the course of the hearing.
It was my opinion that these amendments were not closely related to the alle-
gations of the unfair labor practice charge and were therefore precluded by
Sec. 10(b) of the Act. A copy of my Order is attached hereto as Appendix
A. I also denied a subsequent motion to reopen the record and to consolidate
a new complaint with the instant case. A copy of that order is attached hereto
as Appendix B.
2 About a week before Paiva testified he was still employed by the Com-
pany and was its third highest official. To the surprise of the Respondent, he
testified on behalf of the General Counsel. I found his testimony to be de-
tailed, credible, persuasive, and totally consistent with the objective facts of
the case. I reject the contention that his testimony should be disregarded be-
cause he spoke with the General Counsel prior to testifying about the events
in this case including his pretrial discussions with Respondent’s attorneys. The
Respondent makes the argument that this conduct by the General Counsel con-
stituted a breach of the attorney-client privilege and tainted Paiva’s testimony.
In this regard, I think the Respondent misconstrues the privilege which pre-
cludes only the testimony about attorney-client communications. And in that
respect, I refused to permit Paiva to testify about any pretrial communications
he may have had with the Company’s attorneys.
in the manner set forth in the remedy section of the
decision.
William Arroyave Christian Lopez
Alfonso Celis Miguel Rodriguez
Cynthia Cortez Beatriz Pescador
Jose Flores John Truyol
Patricio Levia Roberta Uriosteque
Pablo Marino Gladys Villanueva
Paola Mena Augustin Zepeda
Claudio Quijada Carlos Orellana
Maria Nunez Christian Leiva
Jose Mejias
WE WILL remove from our files any reference to the
unlawful discharges of the persons named above and
notify them in writing that this has been done and that
the discharges will not be used against them in any
way.
ACCENT MAINTENANCE CORP.
Margit Reiner, Esq., for the General Counsel.
Richard M. Greenspan, Esq. (Richard M. Greenspan P.C.)
and Stuart Weinberger, Esq., for the Respondent.
Scott P. Trevella, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on various days in Au-
gust and October 1990. The charge was filed on November
7, 1989, and the complaint was issued on January 24, 1990.
In substance the complaint alleged:1
1. That in mid-October 1989 the Union commenced an or-
ganizational campaign amongst Respondent’s employees em-
ployed at various buildings in White Plains, New York.
2. That on October 30, 1989, the Respondent discharged
all of the employees described above.
3. That on or about November 8, 1989, the Respondent,
acting through its agent, Orestes Paiva, promised certain em-
ployees reinstatement and possible promotion if they aban-
doned their support for the Union.
4. That on or about November 8, 1989, the Respondent by
Orestes Paiva created the impression that the Employer was
engaged in surveillance of its employees’ union activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent is engaged in the business of providing
cleaning services on a contract basis for commercial cus-
tomers in Westchester, New York, and Connecticut. The
events described herein all occurred at a group of adjacent
office buildings all owned by Schulman Realty Group and
located off the Cross Westchester Expressway in White
Plains, New York.
The Union was initially contacted by employee Claudio
Quijada whose brother Jose was one of the supervisors. On
October 26 and 27, 1989, Union Agent Reinaldo Roman met
with many of the employees in the parking lot and talked to
them about the benefits of joining. Many of the Company’s
employees signed union cards on those dates.
In late October 1989, Orestes Paiva was one of the Com-
pany’s managers. He testified that on October 29, 1989, he
received a call from another manager, Aramis Cordal, who
said that the owner (Edith Messer) knew that the employees
were signing up with the Union. Paiva testified that Cordal
asked if there was any way to replace all these people; stat-
ing that the Company needed about 20 new people by Mon-
day. According to Paiva, he then began contacting people he
knew to find replacements.2
Paiva testified that early on the morning of October 30
(Monday) he spoke to Cordal and told him that he had ob-
tained 14 people whom he would bring to the buildings by
company van. He states that he and Cordal, given the num-
ber of replacements that had been obtained, decided to dis-
charge most, but not all, of the current employees. Thus,
Paiva testified that the employees at 2 and 4 Corporate Park
and those at 3 and 4 Gannett were discharged. He states that
the employees at 2 Gannett were not discharged, but only be-
cause he was short of personnel for that building.
Paiva also testified that although he did not discharge Car-
los Orellana with the other employees on October 30, he did
not do so because Orellana was a foreman and he didn’t
have enough substitutes to fill all the jobs. Paiva states that
when he learned that Orellana had signed a union card, he
discharged him in December.
On or about November 2 or 3, 1989, Claudio Quijada
went to pick up his check and spoke with Paiva at the job-
site. Both agree and I conclude that Paiva said that the em-
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The Respondent contends that the allegation regarding the threat to report
employees to the I.N.S., not being part of the charge, should be barred by Sec.
10(b). However, as this allegation occurred in conjunction with the events of
October 30, 1990, and considered by me to be part of a single plan of action,
I conclude that the allegation is ‘‘closely related’’ to the charge and is there-
fore not barred under Nippondenso Mfg., 299 NLRB 545 (1990).
4 For reasons not relevant to this particular proceeding, Paiva volunteered
to talk to the General Counsel and related the facts as he knew them. As this
occurred 1 or 2 days before the resumption of the trial on October 4, 1990,
the General Counsel had little time to go over his testimony before putting
him on the stand. This lack of pretrial preparation manifested itself when it
became obvious that the General Counsel and Paiva were not communicating
with each other regarding events that occurred after the discharges at issue in
this case. Seeing that the General Counsel was soliciting testimony without
knowing what to expect as answers, I expressed my annoyance that she was
cluttering the record with irrelevant material. I therefore told her that she
should, during the lunchbreak, prepare Paiva regarding the testimony she ex-
pected to elicit from him on direct examination. As this was done prior to the
commencement of cross-examination, I do not see the impropriety that is sug-
gested by the Respondent. Nor do I see how this could possibly have preju-
diced Respondent’s right to cross-examine this witness. (This was not a situa-
tion where the General Counsel was allowed to talk with this witness after
cross-examination had started.)
5 On cross-examination, Donoso conceded that on October 27 he was told
by the supervisor that he might be fired because he had complained about
doing certain work.
ployees should withdraw from the Union in order to get their
jobs back, and that if Quijada did not withdraw from the
Union, he would be reported to Immigration. In my opinion
the former statement promising reinstatement for with-
drawing from the Union constitutes a violation of Section
8(a)(1). A-1 Schmidlin Plumbing Co., 284 NLRB 1506
(1987). I also conclude that Paiva violated Section 8(a)(1) by
threatening to report Quijada to the immigration authorities.
Carl’s Jr., 285 NLRB 975, 987 (1987).3
Based on demeanor factors as well as the entire record, I
shall credit the account of Orestes Paiva regarding the events
described above.4 Therefore, while I recognize that the Com-
pany produced evidence indicating the need to make mana-
gerial and supervisory changes at the affected buildings, I do
not credit the Respondent’s assertion that the discharges of
the rank-and-file employees were necessitated or motivated
by the circumstances giving rise to those changes. Instead,
given the detailed and credible testimony of Paiva, it is con-
cluded that the discharges that occurred on October 30, 1989,
were motivated by antiunion considerations. Therefore based
on the testimony of witnesses and other documentary evi-
dence, I conclude that the following employees were illegally
discharged on October 30, 1989.
William Arroyave Christian Lopez
Alfonso Celis Miguel Rodriguez
Cynthia Cortez Beatriz Pescador
Jose Flores John Truyol
Patricio Leiva Roberta Uriosteque
Pablo Marino Gladys Villanueva
Paola Mena Augustin Zepeda
Claudio Quijada
Based on the credited testimony of Paiva I shall also con-
clude that certain of the employees alleged to have been
discriminatorily discharged on October 30 were not in fact
discharged on that date. Thus, Paiva credibly testified that
Jorge Donoso, a foreman, was discharged on Friday, October
27, 1989, for reasons totally unrelated to the Union.5
I also credit Paiva’s testimony that Antonio Pais’ dis-
charge was unrelated to the Union and occurred on October
27 because of his unexcused absences since October 20.
Paiva credibly testified that on Friday, October 27, he told
Foreman Leandro Leiva that he was going to make him a
cleaner whereupon Leiva quit. As Paiva’s testimony shows
that this event had nothing to do with the Union, I shall dis-
miss the allegation that this individual was discriminatorily
discharged.
In the case of Claudio Quijada, Paiva testified that on Oc-
tober 27 he told Quijada about a job change whereupon the
latter said that he might quit on Monday. However, as Paiva
received instructions to fire employees on Sunday, this re-
sulted in his Quijada’s discharge before he could indicate
whether he would stay or leave. Because of the intervening
discharge, it is speculative as to whether Quijada would have
quit or remained on the job. I therefore reject the Respond-
ent’s assertion that Quijada quit prior to the discharges of
October 30. I also reject any contention that Quijada would
have been discharged because he had used a false name on
his employment application.
The situation involving Christian Leiva is somewhat
unique. In this case, Christian Leiva had gone to Chile and
was out of the country on October 30. It appears that he ar-
ranged for another person to do his job. Therefore, it was
this person (who was never hired by the Company) who was
discharged on October 30, 1989. It is not known by me
whether Leiva made this arrangement without or without per-
mission.
With respect to Christian Leiva, I think that the evidence
shows that Paiva intended to discharge him but unwittingly
discharged an unknown person who was on the job instead.
Thus, I would conclude that there was an 8(a)(3) violation
in this transaction. However, for the period of time that
Leiva was not present in the country, he was unavailable for
work and therefore not entitled to backpay. Nor, might I add,
do I think that the person who filled in for him and who was
not ‘‘employed’’ should be entitled to backpay.
There is also some dispute about an employee named
Maria Nunez. The only evidence regarding this employee are
her employment records which indicate that she was em-
ployed at 4 Corporate Park. These records indicate that she
worked the week ending October 27; that she did not work
the week ending November 3; and that she resumed working
the following week. Unlike most of the records for other em-
ployees which have a T after the week ending October 27
(indicating to me termination), hers does not.
Although the facts in the case of Maria Nunez may be
somewhat ambiguous, I feel that the General Counsel has
met her burden of proof whereas the Employer has not coun-
tered with evidence showing that she was not discharged
with the others. I shall therefore conclude that she too was
discriminatorily discharged on October 30.
As noted above, Paiva testified that a foreman named Car-
los Orellana, who was not fired on October 30, was dis-
charged in December 1989 when he (Paiva) found out that
Orellana was involved with the Union. This raises a number
of issues as follows.
The Respondent contends that an allegation regarding
Orellana was not properly made and that the circumstances
of his discharge were not fully litigated. At the outset of the
hearing the General Counsel included Orellana’s name as
297ACCENT MAINTENANCE CORP.
6 It is unknown by me whether such offers were made in writing. If they
were, they were not produced or offered at this hearing.
7 The Respondent contends that certain employees were illegal aliens and
therefore should not be entitled to reinstatement or backpay. Evidence on such
an issue, to the extent that it would be relevant under Sure Tan Inc. v. NLRB,
467 U.S. 883 (1984), and subsequently decided cases, should be left to the
compliance stage of this proceeding. Any other contentions regarding the ap-
propriateness of reinstatement for any of the employees found herein to have
been unlawfully discharged should similarly be dealt with in compliance.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
one of the alleged discriminates. After obtaining records sub-
poenaed from the Respondent which showed that Orellana
was not discharged on October 30, she withdrew his name
from the 8(a)(3) allegation. However, when Paiva’s evidence
became available, the General Counsel learned that Paiva had
discharged Orellana in December 1989 because of his union
activities. She therefore moved to amend the complaint to re-
vive the allegation concerning Orellana. Although I reserved
ruling on this and a number of other motions to amend the
complaint (see Appendix A), I also indicated that I would re-
ceive this testimony. Therefore, Respondent was on notice
that evidence regarding this allegation was going to be re-
ceived and relied upon if I felt that the motion to amend was
appropriate. As this allegation relates to another discharge by
Paiva, motivated by identical considerations and involving an
event that is essentially a continuation of the other conduct
found to be illegal, it is my opinion that the allegation in-
volving Orellana is ‘‘closely related’’ to the charge and is
not barred by Section 10(b) of the Act.
Respondent also contends that the allegation regarding
Orellana should be dismissed because he was a supervisor.
However, based on the credited testimony of Paiva, I con-
clude that the individuals who were classified as foremen
were leadmen and not supervisor’s within the meaning of
Section 2(11) of the Act. See Carl’s Jr., 285 NLRB 975, 978
(1987). Thus, the credible evidence shows that foremen did
not have the authority to hire or fire and that they did not,
except in a routine manner, assign or direct the work of oth-
ers. The contrary testimony of Ruggeri is discounted as she
admittedly had very little to do with operations and therefore
had no personal knowledge of how foremen related to the
rank-and-file work force.
There was some testimony regarding whether or not cer-
tain of the employees discharged on October 30, 1989, were
given valid offers of reinstatement.
William Arroyave, an employee who was discharged on
October 30, testified that about a week later he was rein-
stated and was thereafter made a foreman.
The Respondent solicited testimony on cross-examination
from employees Cortez and Villanueva that they were of-
fered reinstatement.6 In the case of Villanueva, she testified
that she did not accept the offer because she was offered a
job at a different location that was much further away from
her home. In the case of Cortez, she testified that the job she
was offered paid less than the job from which she was dis-
charged. Finally, documentary evidence in the form of time-
cards for employee Mejias indicates that she returned to
work but at a lower hourly rate.
Issues of backpay and reinstatement ordinarily are dealt
with at the compliance stage of unfair labor practice pro-
ceedings. To the extent that the Company contends that var-
ious employees (not named above) were given valid offers
of reinstatement, that should be dealt with in compliance.
Also, to the extent that evidence was received regarding rein-
statement offers and/or acceptances by Arroyave, Villanueva,
Cortez, and Mejias, I do not believe that the issue of whether
or not such offers were valid was fully litigated. It therefore
is my opinion that such issues also belong in the compliance
stage of this case.7
As there was no evidence supporting the surveillance alle-
gation, I shall recommend that this contention be dismissed.
CONCLUSIONS OF LAW
1. By threatening to report employees to the Immigration
Service, in order to induce them to refrain from union activi-
ties, the Respondent has violated Section 8(a)(1) of the Act.
2. By promising to rehire employees if they withdraw
from the Union, the Respondent has violated Section 8(a)(1)
of the Act.
3. By discharging the following named employees in order
to discourage employees from joining or supporting Service
Employees International Union, Local 32E, AFL–CIO, the
Respondent has violated Section 8(a)(1) and (3) of the Act.
William Arroyave Christian Lopez
Alfonso Celis Miguel Rodriguez
Cynthia Cortez Beatriz Pescador
Jose Flores John Truyol
Patricio Leiva Roberta Uriosteque
Pablo Marino Gladys Villanueva
Paola Mena Augustin Zepeda
Claudio Quijada Carlos Orellana
Maria Nunez Christian Leiva
4. Accept as found herein, the Respondent has not violated
the Act in any other manner encompassed by the complaint.
The aforementioned violations of the Act affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Accent Maintenance Corp., White Plains,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(a) Threatening to report employees to the Immigration
Service in order to induce them to refrain from union activi-
ties.
(b) Promising to rehire employees if they withdraw from
the Union.
(c) Discharging employees in order to discourage member-
ship in or activities on behalf of the Service Employees
International Union, Local 32E, AFL–CIO, the Respondent
has violated Section 8(a)(1) and (3) of the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to the employ-
ees named below to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the rem-
edy section of the decision.
William Arroyave Christian Lopez
Alfonso Celis Miguel Rodriguez
Cynthia Cortez Beatriz Pescador
Jose Flores John Truyol
Patricio Leiva Roberta Uriosteque
Pablo Marino Gladys Villanueva
Paola Mena Augustin Zepeda
Claudio Quijada Carlos Orellana
Maria Nunez Christian Leiva
(b) Remove from its files any reference to the unlawful
discharges of the persons named above, and notify them in
writing that this has been done and that the discharges will
not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at the White Plains, New York office buildings
where the above-named employees worked, and at its prin-
cipal office and place of business copies of the attached no-
tice marked ‘‘Appendix C.’’9 Copies of the notice, on forms
provided by the Regional Director for Region 2 after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
ORDER
The hearing in this matter opened on August 20, 1990, and
closed on October 5, 1990.
The charge filed on November 7, 1989, alleged that the
Respondent discharged employees on October 31, 1989, be-
cause of their support for the Union. Based on that charge
a complaint was issued on January 24, 1990, alleging:
1. That in mid-October 1989 the Union commenced an or-
ganizational campaign amongst Respondent’s employees em-
ployed at various buildings in White Plains, New York.
2. That on October 30, 1989, the Respondent discharged
all of the employees described above.
3. That on or about November 8, 1989, the Respondent
acting through its agent, Orestes Paiva, promised certain em-
ployees reinstatement and possible promotion if they aban-
doned their support for the Union.
4. That on or about November 8, 1989, the Respondent by
Orestes Paiva created the impression that the Employer was
engaged in surveillance of its employees’ union activities.
Prior to and at the hearing, the General Counsel amended
the complaint to specify the names of individuals whom she
alleged were discriminatorily discharged on October 30,
1989.
At the resumption of the hearing on October 4, 1990, the
General Counsel, having requested permission to reopen her
case, presented Orestes Paiva as her witness. As Paiva was
the second highest official of the Company, his testimony on
behalf of the General Counsel came as quite a surprise to the
Respondent. In support of the General Counsel’s allegations,
Paiva testified, inter alia, about instructions he allegedly re-
ceived and implemented to replace the employees at the loca-
tions in question because they were signing union cards.
The General Counsel then proceeded to ask Paiva ques-
tions regarding his pretrial preparation by the Respondent
and its attorneys; about the circumstances surrounding his
quitting on or about October 1, 1990; and about the alleged
discharge of his sister at about the same time. When inquiry
was made as to the relevance of these questions, the General
Counsel indicated that she intended to amend the complaint.
Later in the day, she tendered a written motion to amend the
complaint which was opposed by the Respondent. Summa-
rizing these proposed amendments, the General Counsel con-
tended:
1. That the Respondent instructed Paiva to give false testi-
mony.
2. That the Respondent constructively discharged Paiva on
October 1, 1990, because he refused to give false testimony
regarding the underlying case.
3. That the Respondent discharged Paiva’s sister, Dione
Paiva, because Orestes Paiva refused to give false testimony.
4. That the Respondent threatened that it would report
Dione Paiva to the Immigration Service because Orestes
Paiva refused to give false testimony.
At the remainder of the hearing on October 4 and 5, 1990,
I permitted the General Counsel to inquire into these matters
while reserving ruling on whether to permit the complaint to
be amended. The principle reason for not giving a firm rul-
ing on this matter was my doubt as to the validity of the mo-
tion under the Board’s recent decision in Nickles Bakery of
Indiana 296 NLRB 927 (1989). In any event, the Respondent
299ACCENT MAINTENANCE CORP.
put on some evidence to rebut aspects of Orestes Paiva’s tes-
timony, but it it did not address, through its own witnesses,
substantial portions of the proposed amendments. As such,
the allegations of the proposed amendments clearly have not
been fully litigated.
On October 11, 1990, the Respondent’s counsel renewed
its objections to the proposed amendments. Counsel also pro-
posed that in the event that I granted the motion to amend
the complaint, the hearing should be reopened to allow the
Respondent to litigate fully the merits of these allegations.
By letter dated October 19, 1990, the General Counsel re-
sponded to the Respondent. She set forth the Government’s
position that the proposed amendments were closely related
to the allegations of the original charge and that the hearing
should not be reopened because the merits were fully liti-
gated.
By letter dated October 23, 1990, the General Counsel in-
formed me that she no longer opposed the reopening of the
case, ‘‘as reopening will cure any procedural problems that
may arise.’’ She also notified the parties that the Region
would obtain a new unfair labor practice charge covering the
allegations set forth in the proposed amendments ‘‘as well as
covering new allegations of retaliatory conduct against Ores-
tes Paiva, which have occurred after Orestes’ constructive
discharge and which have only recently been brought to the
General Counsel’s attention.’’
In effect, the General Counsel seems to acknowledge that
the proposed amendments may very well be outside the
scope of the original charge, but that the amendments would
be ‘‘cured’’ by the filing of a new charge at some point in
the future.
In Nickles Bakery of Indiana, supra at 928–929, the Board
stated:
Having reexamined Board precedent in this area in
light of the court’s decision in Galloway and our own
decision in Redd-I, we find no sufficient basis in law
or policy for continuing to exempt 8(a)(1) complaint al-
legations from the requirements of the traditional
‘‘closely related’’ test. On the contrary, we believe that
a uniform requirement in all 8(a) cases that a complaint
allegation be factually related to the allegation in the
underlying charge will end the disparity that currently
exists in our case law. . . . Allowing the boilerplate
‘‘other acts’’ language to support unrelated 8(a)(1)
complaint allegations contravenes 10(b)’s mandate that
the Board ‘‘not originate complaints on its own initia-
tive.’’ In addition, such an approach virtually renders
meaningless the specificity required by Section
102.12(d) of the Board’s Rules and Regulations that a
charge contain a ‘‘clear and concise statement of the
facts constituting the alleged unfair labor practices af-
fecting commerce.’’
Finally, we recognize that matters raising unfair
labor practice issues often are discovered or occur after
the original charge is filed. In those circumstances, it is
customary for a charging party to file an amended
charge or an entirely new charge. Obviously, nothing in
our decision today limits in any way a charging party’s
ability to file a timely new or amended charge. There-
fore, our holding will impose no significant hardship on
a charging party, who continues to remain free to raise
additional timely allegations for Board consideration.
[Citations omitted.]
Most recently, in Nippondenso Mfg., 299 NLRB 545
(1990), the Board held that a charge alleging that the em-
ployer violated Section 8(a)(1) by interfering with the rights
of employees to distribute union literature and wear union
buttons was not sufficient to sustain a complaint allegation
that the employer violated Section 8(a)(3) by discharging an
employee. In refusing to find that the discharge allegation
was closely related to the charge, the Board held that the al-
legations did not have a ‘‘sufficient factual or legal nexus’’
linking the charge and complaint even though the discharge
arose in the context of the same organizing campaign.
Pursuant to the above-cited cases, it is my opinion that the
proposed amendments raise issues which are factually and le-
gally distinct from the allegations of the charge. It is clear
to me that these new allegations, which occurred almost 1
year after the events alleged as unlawful in the initial charge,
set forth factual and legal transactions requiring substantially
different and distinct modes of defense. As such, it seems to
me that the Respondent has not been given sufficient notice
regarding these allegations and has not been given the oppor-
tunity to participate (or not participate) in an investigation of
these matters upon the filing of a timely unfair labor practice
charge.
While I can fully appreciate why the General Counsel
chose to go forward as she did, given the sudden appearance
of a management official willing to give important testimony
for the Government, it seems to me that these new allega-
tions are sufficiently distinct from the original charge so that
the proposed amendments would amount to the origination of
a complaint on the Board’s own initiative. Indeed, I think
that the General Counsel virtually concedes this to be the
case as she now indicates that a new charge covering these
allegations is being solicited.
By denying the General Counsel’s motion to amend the
complaint, this would not preclude her from issuing a new
complaint if a new charge is in fact filed, investigated, and
found to warrant further proceedings. In this regard, I note
that the events alleged to be unlawful took place well within
the 6-month statute of limitations. Moreover, if a new com-
plaint is issued, this Order would not preclude a motion to
consolidate cases coupled with a motion to reopen the
present record. Such a motion, if filed, would be considered
by me on its own merits and might or might not be granted
depending on all the circumstances then extant.
APPENDIX B
ORDER
On November 21, 1990, the General Counsel made a mo-
tion to consolidate Case 2–CA–24733 with Case 2–CA–
23930. This motion is denied for the following reasons:
The hearing in Case 2–CA–23930 opened on August 20,
1990, and closed on October 5, 1990. That case involved the
alleged unlawful discharge of numerous employees.
The complaint in Case 2–CA–24733 alleges that the Em-
ployer instructed a managerial employee, Orestes Paiva, to
testify falsely in the above-described hearing and that it re-
taliated against him and his sister because he refused to do
so. While related to the prior case, the events of the com-
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plaint are also distinct and involve separate issues of law and
fact.
Section 10(m) of the Act states that charges under Sections
8(a)(3) and 8(b)(2) are to be given priority over all other
cases except those of like character or charges given priority
pursuant to Section 10(l) of the Act. As the record in Case
2–CA–23930 is ripe for decision, it seems to me that the
Employer, the Union, and the employees are entitled to have
their respective rights and obligations determined with rea-
sonable dispatch. It is my opinion that a reopening of the
record would not be necessary to determine the outcome of
the new complaint and would only cause substantial and un-
necessary delay in deciding the initial case.
Insofar as the parties requested an extension of time to file
briefs in Case 2–CA–23930, I shall set the time for filing as
December 15, 1990. No further extensions will be considered
except for extraordinary circumstances.