Beverage Plus, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 20, 2008

29-CA-028626 (N.L.R.B. Mar. 20, 2008)

JD(NY)–10-08
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
SCM, USA, a/k/a BEVERAGE PLUS, INC.
and Case No. 29-CA-28626
INDUSTRIAL WORKERS OF THE WORLD,
INDUSTRIAL UNION 460/640
James Kearns, Esq., Counsel for the General Counsel.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on March 4,
2008 in Brooklyn, New York. The Complaint herein, which issued on January 15, 2008, and was
based upon an unfair labor practice charge that was filed on November 9, 20071 by Industrial
Workers of the World, Industrial Union 460/640, herein called the Union, alleges that SCM,
USA, a/k/a Beverage Plus, Inc., herein called the Respondent, violated Section 8(a)(1)&(3) of
the Act by threatening its employees with discharge if they continued to support the Union, and
by discharging its employee, Bernardo Basquez on about October 5 because of his support of,
and assistance to, the Union as well as other protected concerted activities. Respondent failed
to file an Answer in response to this Complaint. By letter dated January 29, 2008 the regional
office wrote to Respondent notifying it of its delinquency, and giving Respondent until the close
of business on February 5, 2008 to file an Answer, stating that unless an Answer was received
by that date, the region would seek a default judgment on the allegations of the Complaint;
however, no Answer was received. Therefore, at the hearing, Counsel for the General Counsel
moved for default judgment, which motion I granted. Based upon the pleadings herein, I make
the following findings of fact and conclusions of law:
1. The charge in this matter was filed by the Union on November 9, and a copy was
served by regular mail on Respondent on November 15.
2. At all material times, Respondent, a domestic corporation, with its principal office and
place of business located at 5887 55th Street, Maspeth, New York, herein called its Maspeth
facility, has been engaged in the business of the wholesale sale and distribution of beverages.
3. During the past twelve month period, Respondent, in the course and conduct of its
business operations, purchased and received products valued in excess of $50,000 from points
outside the State of New York.
4. At all material times, Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
5. At all material times, the Union has been a labor organization within the meaning of

1 Unless indicated otherwise, all dates referred to herein relate to the year 2007.
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Section 2(5) of the Act.
6. At all material times, Mr. Chow, first name unknown, has held the position of
Respondent’s president and has been an agent of the Respondent acting on its behalf.
7. On October 5 the Union filed the Petition in Case No. 29-RC-11511 seeking to
represent a unit of Respondent’s employees.
8. On a date in early September, Respondent, by Mr. Chow, at its Maspeth facility,
threatened its employees with discharge if they continued to support the Union.
9. On or about October 5, Respondent discharged its employee Bernardo Basquez.
10. Since on or about October 5, Respondent has failed and refused to reinstate, or offer
to reinstate, Basquez to his former position of employment.
11. Respondent engaged in the conduct described above in paragraphs 9 and 10,
because Basquez joined, supported or assisted the Union and in order to discourage its
employees from engaging in such activities, or other concerted activities.
12. By the conduct described above in paragraph 8, Respondent has been interfering
with, restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
13. By the conduct described above in paragraphs 9 through 11, Respondent has been
discriminating in regard to the hire or tenure or terms and conditions of employment of its
employees, thereby discouraging membership in a labor organization in violation of Section
8(a)(1) and (3) of the Act.
14. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that it be ordered to cease and desist from engaging in these activities and that it
be ordered to take certain affirmative action designed to effectuate the policies of the Act. In that
regard, having found that the Respondent discriminatorily discharged Basquez, I recommend
that the Respondent be ordered to offer him immediate reinstatement to his former position of
employment or to a substantially equivalent position if his former position no longer exists. I also
recommend that the Respondent be ordered to male Basquez whole for all loss of earnings and
other benefits in the manner set forth in F.W. Woolworth Co., 90 NLRB 289 (1950), along with
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The
Respondent shall also remove from its files all references to the termination of Basquez and
advise him in writing that it has done so.
On these findings of fact, conclusions of law and on the entire record, I issue the
following recommended2

2 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.
Continued
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ORDER
The Respondent, SCM, USA, d/b/a Beverage Plus, Inc., its officers, agents and
representatives, shall:
1. Cease and desist from
(a) Threatening its employees with discharge if they continued to support the Union.
(b) Discharging or otherwise discriminating against any employee for engaging in
activities in support of the Union or other protected concerted activities.
(c) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Decision, offer Basquez full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
(b) Make Basquez whole for any loss of earnings or other benefits suffered as a result of
the discrimination against him, in the manner set forth in the Remedy section of this Decision.
(c) Within 14 days from the date of this Decision, remove from its files any reference to
the unlawful discharge of Basquez, and within 3 days thereafter, notify him in writing that this
has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Maspeth, New York,
copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
_________________________
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 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 Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 15, 2007.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., March 20, 2008
__________________________________
Joel P. Biblowitz
Administrative Law Judge
JD(NY)–10-08
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and
obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten employees with discharge if they continue to support Industrial Workers of the World,
Industrial Union 460/640, or any other labor organization.
WE WILL NOT discharge, or otherwise discriminate against any employee because that employee engaged in
activities in support of a union or any other protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their
rights under Section 7 of the Act.
WE WILL make Bernardo Basquez whole for any loss of earnings and other benefits resulting from his discharge,
less any interim earnings, plus interest.
WE WILL, within 14 days, remove from our files any reference to the unlawful discharge of Basquez, and WE WILL,
within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against
him in any way.
SCM, USA, d/b/a BEVERAGE PLUS, INC.
(Employer)
Dated_______________ By_________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
Two MetroTech Center, 5th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.