D & J Ambulette Service

National Labor Relations Board - Administrative Judge Opinions

Jun 12, 2012

02-CA-040254 (N.L.R.B. Jun. 12, 2012)

JD(NY)–18–12
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
D&J AMBULETTE SERVICE, INC.
and Case No. 2-CA-040254
ANGEL MORENO, CHRISTOPHER RODRIGUEZ,
YHOE TEJEDA AND CARLOS VALENTIN
(Individuals)
Greg Davis, Esq., Jeff F. Beerman, Esq. and
Rebecca Leaf, Esq., Counsel to the General
Counsel
Denise Forte, Esq. and Scott Trivella, Esq.,
Counsel for the Respondent
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in New York City on
January 17, 18 and 19 and March 5, 6 and 7, 2012. The charge and amended charges were
filed on December 10, 2010 and January 20 and March 31, 2011. The Complaint, which was
issued on October 30, 2011 and amended at the hearing, alleges as follows:
1. That in or about August 2010, the Respondent by Luis Montas, its lead mechanic, (a)
interrogated an employee about his activities for Local 854, International Brotherhood of
Teamsters, (b) threatened employees with unspecified reprisals for supporting the union, (c)
told employees that the discharge of Angel Moreno was because of his union activities (d)
threatened employees with discharge because of their support for the union and (e) created the
impression that its employees union activities were under surveillance.
2. That in August 16, 2010, the Respondent by Eli Talvy, its supervisor, (a) told an
employee that the reason for his discharge was because of his support for the Union (b)
interrogated employees about their union activities and (c) impliedly threatened employees with
unspecified reprisals because of their union activities.
3. That on or about February 14, 2011, the Respondent by Joseph Davoli (a)
interrogated an employee regarding his cooperation in the Board’s investigation of this case and
(b) impliedly threatened employees with unspecified reprisals because of their cooperating with
the Board in the investigation.
4. That on the dates listed next to their names, the Respondent discriminatorily
discharged the following employees:
Angel Moreno August 11, 2010
Carlos Valentin August 13, 2010
Christopher Rodriguez August 16, 2010
Yhou Tejada September 21, 2010
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The Respondent admitted at the hearing that Davoli was a supervisor. It denied,
however that Luis Montas or Eli Talvy were statutory supervisors or agents. In all other
respects, the Respondent denied the substantive allegations of the Complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
FINDINGS AND CONCLUSIONS
I. Jurisdiction
The parties agree and I find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act. It also is agreed and I find that Local
854, International Brotherhood of Teamsters is a labor organization within the meaning of
Section 2(5) of the Act.
II. The Alleged Unfair Labor Practice
a. Background and Organizing Activity
The allegations of this case deal with a small group of employees, most of whom are
mechanics. Two of the alleged discriminatees were mechanics, these being Carlos Valentin and
Yhou Tejada. In addition, there was one employee, Angel Moreno, who was employed as a tow
truck driver and another employee, Christopher Rodriguez, whose function was to park vehicles
at the end of the day, collect keys and do odd jobs as needed.
The Company started out by providing taxi services but later branched out to providing
van and small bus services for people who are taken to and from medical appointments or other
kinds of social care facilities. Its place of business is located at Zerega Avenue in the Bronx
where among other things, it parks and repairs its vehicles. The President of the Company is
Joseph Gallitto and the Vice President is Steven Squitieri. Carlos Sacco is the General
Manager and he reports to Gallitto and Squitieri. Under him is Joseph “Skip” Davoli who is in
change of vehicle maintenance and who is the direct supervisor of the mechanics. It is
conceded by the Respondent that these individuals are supervisor and agents within the
meaning of the Act.
The General Counsel asserts that Eli Talvy was the Respondent’s Operations Manager
and therefore a supervisor within the meaning of the Act. In this regard, there was evidence
that he was one of several individuals who performed dispatch functions. The Respondent
denies that he was a statutory supervisor and frankly there is no credible evidence that he had
or performed any of the functions listed in Section 2(5) of the Act. Talvy is also the former
brother in law of alleged discriminate Christopher Rodriguez and in this instance he was
instrumental in getting Rodriguez the job. However, apart from this one situation, where Talvy
recommended him, there was no other evidence that Talvy, as part of his normal duties as a
dispatcher, interviewed, hired or recommends the hiring of employees. He may or may not
engage in such activities, but the record does not support that conclusion.
The General Counsel also asserts that Luis Montas was either a supervisor or agent of
the Respondent. In this regard, the evidence shows that Montas was a senior mechanic who
speaks English and Spanish. From time to time, he will transmit instructions from Sacco and
will also be used to translate between Sacco who speaks English and those employees who
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speak Spanish. Typically about half of the mechanics employed by the Respondent speak
mostly Spanish and need a person to translate for them. (There is a degree of turnover among
mechanics and the Company generally employs about seven mechanics at any given time).
Other than that, the credible evidence does not demonstrate that Montas had any of the powers
or authorities set forth in Section 2(11) of the Act and that to the extent that he sometimes gave
working instructions to other mechanics, these were routine and of a kind usually attributable to
a lead man.1 For example, in a pre-trial affidavit taken from Yhou Tejeda, it states: “Skip would
tell Luis what needed to be done and Luis would tell the mechanics.”
Regarding the issue of non-supervisory agency, there was no evidence that Montas was
asked to translate on any matters dealing with union or employment issues. There was no
evidence that the Company authorized him to speak on its behalf regarding the issue of
unionization or that its managers ever engaged in any conduct designed to give the employees
the impression that Montas was authorized to speak on its behalf regarding such matters. None
of the statements he allegedly made to employees were consistent with any statements made
either by the Company’s owners or it’s conceded supervisors. There is no evidence that the
employer conducted any anti-union propaganda meetings where he participated.
In short, I conclude that neither Talvy nor Montas were supervisors as defined in the Act.
Nor do I find that they were general agents whose remarks if any, to employees about
unionization, should or could be attributed to the Respondent.2 Further, as I do not conclude
that either man has been shown to be a supervisors or agent, I cannot conclude that any
knowledge that they may have had regarding the employees’ union activities can be attributed
to the Respondent.
At the time of these events the Company had about 150 to 170 vans and buses plus one
tow truck. It employed approximately 175 drivers, all of whom are represented by another
union, namely Local 124, International Union of Journeymen and Allied Trades. It is noted that
the drivers are required to have a Commercial Driving License (CDL) with a 19(a) certification
that permits a person to transport children or individuals with medical issues. (Having a CDL,
the 19(a) certification is fairly easy to obtain and involves a written test, a physical and a road
test).
In addition to drivers, the Company employs about 65 persons are matrons and who
were not covered by the contract covering the drivers. Also, the Company employed
dispatchers, office workers and one tow truck driver who was utilized to bring damaged vehicles
back to the garage. This was supplemental to its use of outside tow truck companies and was
originally intended to cut towing costs by having a company employee do some of this work
instead of always using an outside tow truck company.

1 In Rochelle Waste Disposal LLC v. NLRB, 7th Cir., 3/8/12, the Court found that substantial evidence
supported the Board’s finding that an employee named Jarvis, despite having a supervisory title, was not
a supervisor as defined by Section 2(11) of the Act because he lacked the authority to “responsibly direct”
the work of other employees. The Court noted that the record did not show that Jarvis took actions to
correct other employees' work or that he was held accountable for their performance. See also Oakwood
Health Care Inc., 348 NLRB 686, 689 (2006) and Lynwood Manor, 350 NLRB 489, 490-91 (2007).
2 Judge Fish in AFL Web Printing, JD(NY)-16-12, wrote an exhaustive review of case law where the
Board determined that a non-supervisory person was nevertheless an agent. His conclusion that the
individual in that case was an agent was based on a variety of factors beyond what are present in the
present case. In my opinion, the mere fact that an individual is used to translate routine day to day work
instructions from supervisor to employees, cannot by itself, be the basis for finding that he or she is an
agent within the meaning of Section 2(13) of the Act.
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On April 27, 2010, Local 854 Teamsters filed a petition in Case No. 2-RC-23477,
seeking an election for the matrons. The Company entered into a Stipulated Election
Agreement on May 18, 2010 and an election was held in this unit on June 7, 2010. 3 The Union
won the election and was certified on June 15, 2010. Thereafter, the parties commenced
negotiations. At the time of the hearing in this case, no contract had been reached. 4
On April 27, 2010, Local 854 also filed a petition in Case No. 2-RC-23478. In this
petition, the Union sought an election in a unit of drivers and mechanics. However, as the
Company already had a contract covering the drivers, the Union withdrew this petition on May
17, 2010.
About three months later, in July, Angel Moreno, the tow truck driver, talked to an
organizer from Local 854 and obtained a group of authorization cards. He proceeded to solicit
the mechanics and the parking lot employee, On July 30, Moreno signed a card and he
obtained other employee signatures on either that date or on August 2, 2010. Among the
people he solicited was Luis Montas, who as noted above, was a senior mechanic. Montas
refused to sign a card and the evidence indicates that he was dismissive of unionization. The
other employees who did sign cards were Christopher Rodriguez, Eduardo Jurgo, Carlos
Valentin and Yhou Tejeda.
Montas was clearly aware of the organizing because he was directly solicited by
Moreno. However, there was no other direct evidence that the Company was aware of this
activity. And unless, the General Counsel can show that Montas was either a supervisor or
agent, knowledge of union activities by him cannot legally be attributed to the Employer. The
General Counsel points to the fact that the building has a number of security cameras. But there
was no showing that these cameras recorded sound or that they recorded conversations or
transactions between union business agents, Moreno or the group of employees solicited by
Moreno.
Carlos Valentin testified that several days after he signed a card (on August 2), Montas
spoke to him near the car lift and said that they “were crazy for having signed the card,” and that
they would get kicked out for signing cards. Valentin states that his response was, “kick us out.”
According to Valentin, Yhou Tejeda was present during this conversation but Tejeda’s testimony
was somewhat different. In this regard, Tejeda testified that on or about August 4, he had a
conversation with Montas who asked him if he had spoken to Moreno who was promoting a
card and who stated that he should be careful. Tejeda stated that there was no one else
present during this conversation. He did not testify that Montas said that anyone who signed a
card would be “crazy” or that Montas threatened him with discharge.
Apart from a conversation with Moreno where he rejected the card solicitation, Montas
denied that he spoke to the other employees about a union or union cards. He also credibly
testified that he never reported to his bosses that he had been approached by Moreno to sign a
union card.

3 It is noted that Luis Montas who had been out recuperating from a heart attack, returned to work at
about the same time that the election was held. He testified that as the election involved non-mechanics,
he paid no attention to it.
4 No contention is made in this case that the Employer has bargained in bad faith.
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Eduardo Jurgo, an employee who is still employed by the Respondent, was a reluctant
witness who testified after being compelled to do so by a United States District Court. He was
called by the General Counsel and his answers were vague and evasive. The Generally
Counsel asked him to testify about an alleged conversation that he had with Eli Talvy who is
employed as one of the Respondent’s dispatchers. In his affidavit, Jurgo described Talvy as a
manager but did not specify what if any managerial or supervisory duties he had. After being
shown his affidavit,5 Jurgo testified that sometime in August, Talvy asked him about union cards
and that he responded that he had signed a card. Jurgo testified that Talvy told him that it was
no-one’s business what Jurgo signed. Jurgo acknowledged that in his affidavit, it stated that
Talvy told him that if the bosses asked him about signing a card, he should tell them that he
didn’t understand what he signed.
Jurgo further testified that he received a subpoena from the Regional Office in February
2011 and that he may have spoken to Talvy about it so as to get the day off to go to the NLRB.
(At this time, Jurgo was involved in a custody battle and had spent a good deal of work time in
family court). After being asked to review his affidavit, Jurgo testified that he may also have
spoke to Skip Davoli. Jurgo could or would not recall anything that was said between himself
and Davoli but acknowledged that his affidavit stated that Davoli asked him where he was going
and what he was going to tell the Labor Board, to which he (Jurgo) responded that he was going
to get fired like Angel Moreno for the Union thing. When confronted with this statement in his
affidavit, Jurgo testified that he had no recollection of the conversation.6 Parenthetically, I note
that even assuming that this was accurately notated by the Board agent, the conversation
makes very little sense to me. Thus, according to the affidavit, Jurgo, out of the blue,
volunteered that he was going to tell the Labor Board agent that he was going to be fired just
like Angel Moreno. This is not something that Davoli is alleged to have said to Jurgo, but
something that Jurgo is alleged to have said to Davoli. Davoli, for his part, denied that he had
such conversation with Jurgo. I credit Davoli.
b. Angel Moreno
Angel Moreno was hired as a tow truck driver in February 2009. Prior to his hire, the
Company had purchased a used tow truck in or about 2008 but did not use it until after getting a
variety of permits. Moreno was not the first driver of the tow truck, but he was hired after the
original driver did not work out. The impetus for having a company owned and operated tow
truck was to save money by being able to reduce its reliance on outside towing companies. 7 At

5 Jurgo gave an affidavit to a Board agent that is dated March 4, 2011. This affidavit was taken
seven months after the incidents described and was the result of a subpoena issued to him during the
investigation of this case. Jurgo testified that he answered the questions posed to him and that he rather
cursorily reviewed the affidavit because his car was parked at a meter. (He stated that he got ticket).
6 Since the affidavit was taken and executed about seven months after the events described, it
cannot be considered to be an example of a past recollection recorded. Rule 803 (5) includes as a
hearsay exception a “memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown
to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to
reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an adverse party.”
7 The Company’s principle outside tow truck operator is Crown Towing. I note that in New York City,
if a vehicle breaks down on a highway such as the East River Drive, there are a group of tow truck
companies that are given exclusive licenses to remove vehicles from the highway and place them on the
nearest adjacent street. From that point, it is the Respondent’s obligation to have the vehicle towed to its
facility and prior to having its own tow truck, it used Crown which is a company located in the same
Continued
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the time that the Company started using its own tow truck, its fleet was fairly old inasmuch as
when it expanded its business, it purchased a fleet of used vehicles.
Moreno’s original schedule was from 8:00 a.m. to 6:00 p.m. Sometime in March 2010,
Moreno asked to have his schedule changed to 7:00 a.m. to 5:00 p.m. because he was taking
an EMT course. This change was made. When hired, Moreno was paid $12 per hour. In June
or July he received a raise to $14 per hour.
As noted above, Moreno successfully solicited cards from some of the mechanics and
the car parker on July 30 and August 2, 2010. Among the people he solicited was Montas who
expressed no interest in joining Local 854.
On August 11, 2010, Moreno was told by Davoli that the Respondent had decided to
“park the truck” and that his services were no longer needed.
Yhou Tejeda testified on or about August 4, Montas asked him if he had spoke to the
tow truck driver to which he responded; “about what?” Tejeda testified that Montas said that it
was about a card that he was promoting and that Tejeda should be careful “if you sign it.”
Tejeda also testified about another conversation he had with Montas that took place on
the day that Moreno was let go. He testified that Montas told him that the company had fired
the tow truck driver and that it “was because of the signing of the Union.” According to Tejeda,
Montas then said that “everybody who signs is going after.” Tejeda testified that he asked
Montas if he was going to be let go and that Montas told him not to worry because he was going
to speak to one of the bosses and tell him that he (Tejeda) had “nothing to do with that because
I had very little time there.” According to Tejeda, Montas told him later in the day that he had
spoke to “Papa” and that he needn’t worry.
Montas denied both of these alleged conversations.8
The Respondent’s witness testified that even though it had hired Moreno in order to
reduce towing expenses, it was not working out as planned. They assert that on several
occasions, Moreno after his schedule had been changed, he refused to go out in the afternoon
and pick up a vehicle if it would mean that he would not get back to the facility before 5:00 p.m.
In this regard, Moreno conceded that this did happen on one occasion. The upshot was that if
Moreno wasn’t willing to go out to pick up a vehicle during the afternoon, then that vehicle would
have to be towed by Crown, thereby obviating to some degree, the reason for Moreno’s
employment.
_________________________
neighborhood. After starting to use its own tow truck, the costs for removing vehicles from highways
remained the same but the expectation was that the cost of utilizing Crown would be reduced. Based on
Respondent Exhibit 17 which is a statement of expenses for Crown, it looks like Crown charged, on
average, about $75 per hour. There is therefore no dispute that because Crown gets paid a much higher
hourly rate than Moreno, the less it is used, the lower the overall cost to the Respondent if Moreno is
available and willing to do the work.
8 Although perhaps not relevant, I note that Montas testified that Tejeda’s father was his neighbor and
that he, (Montas), as a favor to the father, arranged for Tejeda to be interviewed for the job. This type of
transaction is not unusual and does not, in my opinion, establish that Montas had, as a part of his job, the
authority to recommend hiring or that he was an agent for other purpose other than translating routine
work orders.
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The Respondent also asserts that it started buying new vehicles in 2009 in an effort to
upgrade its aging fleet. It contends that as its fleet of vehicles became newer on average, the
rate of road breakdowns would go down thereby reducing the need for towing services. Given
these factors, the Respondent contends that it decided to “park the truck.” It denies that union
considerations played any role in Moreno’s layoff and the evidence shows that the Company’s
14 year old tow truck has not been utilized for towing services since August 11.9
I also note that although there is some difference as to when this occurred, Moreno
testified that at the time of his leaving, the Respondent offered him a job as a van driver.
Moreno testified that he rejected this offer because he did not have the 19(a) certification that
was needed to transport ill or injured people. However, he did have a commercial driver’s
license and it is not particularly difficult or time consuming to obtain the necessary certification to
be a van driver. In any event, if the Company was looking to rid itself of the key union
supporter, it is not likely that it would offer him another job. (As a driver, Moreno would be
covered by the collective bargaining agreement with Local 124, International Union of
Journeymen and Allied Trades).
c. Carlos Valentin
Initially Carlos Valentin was hired as a maintenance worker at $8 per hour. In or about
late April or early May, Skip Davoli told him that there was an opening for a mechanic and asked
him what he could do. Valentin told Davoli that he wasn’t a technician but that he did know how
to change brakes, transmissions, water pumps, batteries and alternators. In early June Valentin
was promoted to a mechanic and was given a raise to $12 per hour.
According to Valentin, he was solicited to sign a card for Local 854 by Angel Moreno. He
signed the card on August 2, 2010.
Valentin testified that on or about August 4, he and two other mechanics, (including
Tejeda), participated in a conversation with Montas at the car lift where Montas said that; “we
were crazy for having signed the card, because they were kick out for having signed them.”
This was denied by Montas and not corroborated by Tejeda. (In an affidavit given by Valentin on
April 18, 2011, it stated that on August 11, 2010, Carlos, a mechanic, told us that we were crazy
that we had signed the paper for the Union.)
According to Valentin, he had a second conversation with Montas on or about August 9.
He states that Montas told him that the Company was “investigating who had filled out the union
card.” Valentin testified that he responded by saying “kick us out.” Montas denies this
conversation and Valentin states that no one else was present.
Valentin also testified that the day before Moreno was fired Montas again approached
him and said that the Company knows who had signed the cards. He claims that no one else
was present and Montas denied the conversation.
According to Valentin, on August 13, he was called into the office by Davoli, given a
check and told that he was being laid off. He testified that Davoli said that he was sorry that
they had “kicked me out.” When asked what happened, he claims that Davoli said that he didn’t
know. Valentin also states that Davoli offered him a job at a car wash that Davoli owned.

9 The only evidence is that the tow truck, has on occasion, been used within the Respondent’s own
facility. No new tow truck driver has been hired.
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The Company’s witnesses testified that Valentin was given the chance to work as a
mechanic but was unable to perform the job. They state that he could not do repairs accurately
or quickly and that shortly before he was let go, he improperly put calipers on the brakes
thereby making them inoperative and dangerous. Davoli testified that he made the decision to
let Valentin go because of the brake job after previous deficiencies. He testified that he decided
not to put Valentin back to his old job because that position had been filled in the interim and
would have required Valentin to take a $4 cut in pay. Davoli testified that he personally liked
Valentin and that was the reason he offered him a job elsewhere at a company that he owned.
Notwithstanding Valentin’s testimony that he received no warnings or criticism of his
work, the evidence shows that prior to this job, he did not have any meaningful training or
experience to work as an auto mechanic. At most, he enrolled in a course in Puerto Rico, which
he did not complete. His assertion that he occasionally worked on cars for his friends does not
persuade me that he had acquired competence as a mechanic. This is therefore consistent with
the Respondent’s contention that Valentin could not do mechanic’s work and that he messed up
a brake job shortly before he was laid off.
d. Christopher Rodriquez
Rodriguez is related by former marriage to Eli Talvy. And because of this relationship,
Rodriguez was hired by the Company on January 11, 2010 10 His job was to park vehicles in
designated spots when they came back to the facility and to take the driver’s keys. He testified
that he closed the facility at night after the last vehicle came in around 9:00-10:00 o’clock.
Rodriguez states that he would close the exterior gates and make sure that everything was
locked. He had the nickname of cake, apparently because other employees considered that his
job was a “piece of cake.”
Angel Moreno solicited a card from Rodriguez which he signed on July 30. According to
Rodriguez, Moreno explained that the Teamsters could help get overtime and benefits.
Rodriguez states that he told Moreno that he was concerned about losing his job if he went
behind the employer’s back and that Moreno said that he didn’t have anything to worry about
because the Teamsters would not let anyone know who signed the cards.
The Respondent offered the testimony of John Oliveri regarding Rodriguez’s failure to do
his job. In this regard, Oliveri is not directly employed by the Respondent. He had previously
been a manager of D&J and now works for another company owned by Steven Squitieri, one of
the Respondent’s owners. In this capacity, Squitieri has given Oliveri the responsibility of
checking on the D&J facility at night.
In any event, Oliveri testified that on Saturday, August 7, 2011, he went to the facility
and noticed that the lot and garage doors were open. He testified that when he entered the
facility, he saw that some vehicles still had their keys in them and that some were not in their
designated spots. According to Oliveri, he attempted to locate Rodriguez but could not.
Oliveri testified that on Monday, August 9, he spoke to Rodriguez and asked him what
had happened on Saturday. He states that Rodriguez stated that he shouldn’t worry about it;

10 The fact that Talvy as Rodriguez’s brother in law, recommended that the Company hire him, does
not establish, in my opinion, that Talvy, as a regular part of his job, was authorized to hire employees or
effectively recommend hiring..
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that he had issues with his girl friend and that he had to run out. Oliveri states that he then
spoke to Carlo Sacco and that Sacco asked if this was the first problem he had with Rodriguez.
Oliveri responded that there was nothing drastic in the past but that he was concerned.
According to Oliveri, Sacco told him to tell Rodriguez to not let it happen again and that this
would suffice for now.
Rodriguez testified that a week later on Saturday, August 14, he was sent by Talvy to
finish cleaning up a parking lot that was owned by the Company. He states that he called Talvy
and told him that the bus wash crew had left and that he was on the way to clean the lot.
According to Rodriguez, he told Talvy that the facility was still open and that Talvy told him to
leave it open because some mechanics were still there and that they still had drivers coming in.
Rodriguez testified that at around 2:00 or 2:30 p.m., Talvy called and asked if he had finished
with the lot. According to Rodriguez, Talvy told him that he was almost done whereupon Talvy
explained that Johnny [Oliveri] was asking where he, (Rodriguez), was and why the facility was
still open. Rodriguez testified that Talvy told him that he took care of the situation and not to
worry about it. According to Rodriguez, after he finished cleaning the lot, he drove back to the
facility and noticed that the facility was closed and that there were vehicles left out on the street.
(On Saturdays, the facility closes in the afternoon).
Oliveri’s version is as follows. He testified that on Saturday, August 14, he visited the
facility shortly before 1:00 p.m., asked a dispatcher where Rodriguez was and was told that he
was at the lot. According to Oliveri, he drove over to the lot which was a few minutes away and
could not find Rodriguez. He states that he then returned to the main office where he found
Rodriguez and asked him where he had been. Oliveri testified that Rodriguez responded in a
flip manner and made comments to the effect that Oliveri had no authority over him and that he
shouldn’t be asking these questions. According to Oliveri, Rodriguez said: “Don’t worry about it,
I had it covered. I’m, you know, I’m cool, you know.” Oliveri testified that he responded by
saying that he didn’t think that Rodriguez belonged there right now. He states that Rodriguez
responded by saying: “You know, man, leave me alone” to which he told Rodriguez: “Why don’t
you get out of here now…” According to Oliveri, Rodriguez picked up the phone and called Ely
Talvy and said: “Yo E, this nigger’s sending me home.” Oliveri states that he then stopped
Rodriguez and said: “No, no, no, you’re wrong. This nigger isn’t sending you home, this nigger
is throwing you out. You’re fired.”
Although the evidence does not suggest that Oliveri would normally have much contact
with D&J’s employees or that he would be authorized to discharge an employee, he testified
that he called Squitieri, who after being told about the events, authorized the discharge.
Talvy’s testimony was that on Saturday, he was at home when he received a phone from
Rodriguez who told him that he had an argument with Oliveri and that Oliveri had told him that
he was terminated. Talvy states that Rodriguez was very angry and said; “this asshole just told
me I was fired.” According to Talvy, he told Rodriguez there was nothing he could do right now
because he wasn’t at work and didn’t know the situation.
On Monday, August 16, Rodriguez came to the facility and was told by Talvy that he
didn’t know what Oliveri told Squitieri but that he was fired. According to Rodriguez, he then
went to the office and asked the owners if he could speak about what happened on Saturday.
He states that their response was that there was nothing to speak about.
Rodriguez testified that as he was leaving the office, he spoke with Talvy who said, “they
have a list.” Rodriguez states that when he asked what Talvy was talking about, the latter
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responded by saying: “Stevie knows. Stevie has a list of people who signed and you and Angel
are one of them that popped up. That’s the real reason why you’re fired.”
Not surprisingly, Talvy denies making any such statements to Rodriguez, To the
contrary, he testified that when Rodriguez asked for his assistance to keep his job, he told
Rodriguez that there was nothing he could do and that “you broke company rules and that’s
pretty much it.” Based on the demeanor and the record as a whole, I credit Talvy.
Yhou Tejeda
Yhou Tejeda was hired in July 2010 and he was recommended for this job by Montas
who is a friend of his father. He was employed as a mechanic and worked the evening shift from
2:00 p.m. to 10:00 p.m. He also worked on Saturdays.
Tejeda signed a union card on August 2, 2010 but was not discharged at the same time
as Moreno, Rodriguez and Valentin. It is speculated by the General Counsel that the reason he
kept his job was because Montas intervened on his behalf and convinced the owners that as a
new employee, Tejeda didn’t know what he was signing.
Tejeda testified that on September 21, he arrived at the shop and started working on a
vehicle. Tejeda states that soon thereafter, Montas told him to speak to a driver who had just
come in and that he refused, stating: “Luis, how do you expect me to speak to him? I don’t
speak English and he has already spoken to you.” According to Tejeda, one of the other
mechanics who was present said that the driver only wanted to have air put in the tires, to which
he said to Montas: “But Luis… how can it be that while I’m fixing a motor you’re going to tell me
to put air into a tire?” According to Tejeda, Montas insisted that he do this and that finally, he
said to go home. Tejeda states that he asked Montas if he was being thrown out and Montas
said; “I already told you. Go home.” At this point, according to Tejeda, he went to get his tools
while Montas went to Skip Davoli’s office. He states that when Davoli came out of the office, he
told him that he wanted his uniform back. Tejeda states that he then left the facility. He testified
that he never said or indicated that he was resigning.
Montas testified that on this date Tejeda arrived at 2:00 p.m. and that he asked him to do
some work because he, (Montas), was tired and he wanted to go home. According to Montas,
Tejeda refused and stated that he too was tired and that he had a backache. Montas testified
that he told Tejeda that if he was so tired because he had another job, he should punch out and
go home. At that point, according to Montas, Tejeda went back to his personal car and started
to drive it out of the garage. He testified that Davoli then asked Montas why he was leaving and
Tejeda said that he was leaving and that he had work at another place.
Davoli’s version is that the incident took place at the end of the shift and that Montas
came and told him that he had asked Tejeda to change a tire and that Tejeda refused. Davoli
states that Montas said that he wanted to go home and that Tejeda refused to do a job after
which Montas told Tejada to go home. According to Davoli, when he saw Tejeda start to drive
out of the garage, he asked him what he was doing. He states that Tejeda said he was leaving
and that he was done there. According to Davoli, he thereupon asked Tejeda to give back his
uniform.
The Respondent contends that Tejeda resigned while the General Counsel argues that
he was fired. In fact, the entire transaction is rather ambiguous although both sides have a
reasonable interpretation of what happened. The issue here is whether the Company engaged
in conduct that was motivated by anti-union considerations. And in this regard, this event in
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September is fairly remote in time to when the employees signed union cards. Moreover, this
incident occurred in the absence of any other union activity by the mechanics.
The Respondent suggested that Tejeda’s reason for resigning was because he had
another job closer to his home in New Jersey. Although Tejeda conceded that he drove from
Jersey City to the top of the Bronx each day, (at least 25 miles), he denied that he had another
job at the time.11
Analysis
The basic allegations of the Complaint are (a) that the Respondent became aware of
union organizing activity within the above group of individuals; (b) that two alleged supervisors
and/or agents interrogated and threatened employees about union activity; and (c) that it
discriminatorily discharged four of the employees soon after they signed union authorization
cards.
The legal test for determining whether an Employer violates Section 8(a)(1) and (3) of
the Act is set forth in Wright Line 251 NLRB l083, (l980) enf'd. 622 F 2d. 899 (1st Cir. l98l), cert
denied 495 U.S. 989. Under that standard, once the General Counsel has established a prima
facie showing of unlawful motivation, the burden is shifted to the Respondent to establish that it
would have laid off or discharged an employee for good cause despite his or her union or
protected activities.
Timing by itself can be construed as circumstantial evidence of both knowledge and anti-
union animus. Best Plumbing Supply, 310 NLRB143, 144 (1993). On the other hand, an
employer may be able to overcome those inferences if it can show that its decision was
motivated by some intervening event that would justify disciplinary action. Dallas & Mavis
Specialized Carrier Co., 346 NLRB 253, (2006).
The timing of three of the four terminations took place in early August and therefore
occurred soon after these employees signed cards for Local 854. However, this element is
mitigated by the facts that the Respondent has had a long standing collective bargaining
relationship covering its drivers and had recently participated in an NLRB election after which it
recognized Local 854 as the representative for about 60 matrons. Further, although Local 854
filed a petition to represent the drivers and mechanics, that petition had been withdrawn and
there is no indication that Local 854 representatives had ever notified the Employer that they
were seeking to represent the group of people involved in this case.
Finally, although the Company had participated in a recent Board election, there was no
evidence to show that during that election process, its supervisors or managers made
statements or engaged in conduct that could be construed as demonstrating anti-union animus.
The General Counsel produced evidence suggesting that the Company was aware of
the employees’ union activities based on the conceded fact that Montas was solicited to sign a
union card. Nevertheless, as I have concluded that Montas was neither a supervisor nor agent
of the Respondent, I shall discount this evidence.

11 To get from Jersey City to the Bronx requires a driver to either go through the Holland or Lincoln
Tunnels or over the George Washington Bridge.
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The General Counsel also produced evidence based on alleged statements by Montas
and Talvy to the effect that the reason that at least three of these employees were discharged
was because they had joined the union and/or they were on a list of people who had signed
union cards. Again, as I have concluded that these two individuals were not supervisors or
agents, their “admissions” cannot be the basis either for finding that these statements violated
Section 8(a)(1) of the Act or for finding the Respondent liable for the discharges alleged.
At best, the General Counsel has made out a weak and circumstantial primae facie
case; a case completely reliant on the timing of three of the discharges that took place within
one or two weeks after these employees signed union cards.
As to Moreno, the Respondent has produced evidence that in late July or early August,
2010, it made a decision to reduce costs and that this included the decision to park the tow truck
because it was not saving or going to save as much money as had originally been anticipated.
The credible evidence was that Moreno refused on at least one and probably more occasions to
go out in the tow truck if he couldn’t return before 5:00 p.m. Further, the Company produced
evidence that it has replaced and continues to replace a substantial number of its older vehicles
with new vehicles, thereby reducing the number of breakdowns that are likely to occur. The
evidence shows that except for some use at the Company’s facility, the tow truck has not been
used to bring vehicles back to the yard and no new tow truck driver has been hired.
There is no direct evidence that the Company’s management or supervisors obtained
knowledge of union activity amongst this set of employees before their discharges. I cannot say
that a decision to cease using its own 14 year old tow truck was either untrue or so
unreasonable so as to warrant a conclusion that a discriminatory motive should be inferred.
Moreover, any inference of bad motive is in my opinion, mitigated by the fact that at the time of
his discharge or soon thereafter, the Company offered Moreno another job.
Accordingly, based on the record as a whole, it is my opinion that the Complaint should
be dismissed insofar as it alleges that the Respondent illegally discharged Angel Moreno.12
The Respondent argues that Valentin was not a competent mechanic and that he
messed up a brake job shortly before his discharge. As the testimony of Valentin demonstrates
that he did not actually have the training or experience to be a mechanic, I credit the testimony
of the Respondent’s witnesses as to their evaluation of his work. Accordingly, I conclude that
the Respondent has demonstrated that even if the General Counsel had shown that it was
aware that Valentin had signed a union card, the Respondent has shown that it would have
discharged Valentin for legitimate reasons.
As to Rodriguez, it is my opinion that the credible evidence shows that his discharge was
not motivated by union considerations. In this instance, the evidence shows that on two
occasions, he failed to be where he was supposed to be and failed to close the facility when it
should have been closed. The fact that Oliveri may not have had the authority to fire Rodriguez
is irrelevant inasmuch as the discharge was subsequently approved by the owners. I also credit
Talvy’s denial that he told Rodriguez that he was discharged because of his union activities or
because he was on a list.

12 There was uncontested evidence that after his discharge, Moreno threatened Montas with physical
harm. However, as I have concluded that his discharge did not violate the Act, it is not necessary to
consider what if any effect this post discharge conduct would have on any reinstatement or backpay
remedy.
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In my opinion, the General Counsel has not made out a primae facie case with regard to
Yhou Tejeda. Unlike the other three, Tejeda was not discharged shortly after he signed a union
card. There was, as far as I can see, no other union activity among the mechanics after the first
three had been discharged. Although there may be some ambiguity as to whether Tejeda
resigned or was discharged, it is my opinion that there is no credible evidence to show that
whatever took place on September 21, was motivated by his union activity.
I have already concluded that neither Talvy nor Montas were supervisors or agents
within the meaning of Sections 2(11) and 2(13) of the Act. Therefore I shall dismiss the
allegations of the Complaint that allege any statements made by them as being violative of
Section 8(a)(1) of the Act. Finally, as I credit Davoli’s testimony regarding the alleged
conversation he had with Jurgo, I shall also recommend that these allegations of the Complaint
be dismissed.
Conclusions of Law
The Respondent has not violated the Act in any respect.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended: 13
ORDER
The Complaint is dismissed.
Dated, Washington, D.C., June 12, 2012.

_______________________
Raymond P. Green
Administrative Law Judge

13 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.