Caamano Bros., Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1991

304 N.L.R.B. 24 (N.L.R.B. 1991)

24
304 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has moved to strike the Respondent’s exceptions on
the ground that they fail to meet the specificity requirements of Sec. 102.46(b)
of the Board’s Rules and Regulations. The Respondent has filed an opposition
to the General Counsel’s motion. Although the Respondent’s exceptions do not
conform in all particulars with Sec. 102.46, they are not so deficient as to war-
rant striking them. Further, the General Counsel has not shown prejudice as
a result of the deficiency. Accordingly, the General Counsel’s motion is de-
nied.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
1 All dates refer to the 1989 calendar year unless shown otherwise.
2 Respondent’s direct inflow annually exceeds the nonretail, discretionary
standard established by the Board for exercising its statutory jurisdiction. Ac-
cordingly, I find that it would effectuate the purposes of the Act for the Board
to exercise its jurisdiction to resolve this labor dispute.
Caamano Brothers, Inc. and Food, Industrial and
Beverage Warehouse, Drivers & Clerical Em-
ployees Union Local 630, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO. Case
21–CA–26781
August 12, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On February 19, 1991, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief.1
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,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Caamano Brothers, Inc.,
Los Angeles, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Salvador Sanders, Esq., for the General Counsel.
Charles J. Schufreider, Esq. (Barton, Klugman & Oetting),
of Los Angeles, California, for the Respondent.
Kenneth P. Young, Esq. (Wohlner, Kaplong, Phillips, Vogel,
Shelley & Young), of Encino, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Food,
Industrial and Beverage Warehouse, Drivers & Clerical Em-
ployees Union Local 630, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO (Union) filed unfair labor practice charges
against Caamano Brothers, Inc. (Respondent or Employer) on
May 1, 1989.1 An amended charge was filed on June 1.
On June 15, the Regional Director for Region 21 of the
National Labor Relations Board (NLRB or Board) issued a
complaint alleging Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
National Labor Relations Act (Act). A hearing on the com-
plaint was scheduled before an administrative law judge.
Respondent answered the complaint on August 12 denying
that it engaged in the unfair labor practices alleged.
I heard this matter on October 3 and 4, 1989, at Los An-
geles, California. After carefully considering the record and
posthearing briefs of all parties, I find that Respondent en-
gaged in the unfair labor practices alleged based on the fol-
lowing
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The complaint alleges Respondent, at all material times,
was a member of Associated Produce Dealers and Brokers
of Los Angeles, Inc. (the Association), a multiemployer orga-
nization whose members are engaged in the wholesale pur-
chase and sale of produce. The current Association-Union
agreement applies to the following employee categories: All
sales persons, freezer persons, receiving clerks, dispatchers,
driver/forklift operators, receiver helpers, housemen, semi-
drivers, double drivers, and loaders.
The complaint charges Respondent repudiated the current
agreement by failing and refusing to: (1) answer grievances;
(2) make pension fund contributions; (3) pay overtime rates,
and vacation and holiday benefits; and (4) maintain time
records reflecting hours of work. This conduct, the complaint
asserts, occurred without the Union’s consent or affording it
an opportunity to bargain concerning them.
The complaint also alleges that Respondent failed to fur-
nish the Union, as requested in February, with a seniority
roster of its unit employees, information necessary and rel-
evant to the Union’s representation of unit employees.
Respondent denies violating the Act. Its brief asserts that
it was never bound to the Association-Union agreement be-
cause it never authorized the Association to act on its behalf.
Alternatively, Respondent denies liability under the Act by
claiming that its conduct amounted only to a breach of agree-
ment rather than repudiation as charged in the complaint.
B. The Evidence
1. Background
Respondent, a California corporation owned by Daniel and
Bruno Caamano, is engaged in the wholesale purchase and
sale of fresh produce at the Los Angeles, California produce
market area.2 At relevant times, Respondent operated two fa-
cilities, its principal location on Olympic Boulevard and a
warehouse on South Central Avenue. Eight or nine employ-
25CAAMANO BROS.
3 Pleading lack of knowledge, Respondent denied the Union was a labor or-
ganization within the meaning of Sec. 2(5) of the Act. Based on the findings
and conclusions of law in the prior cases and the record here, I find the Union
is a labor organization within the meaning of the Act.
ees, its clerical force, two commission salesmen and cor-
porate officials worked at Olympic Boulevard; four or five
employees worked at the South Central warehouse.
In two previous cases, the Board found Respondent unlaw-
fully discharged employees for engaging in activities on be-
half of the Union. See Ethnic Produce, 275 NLRB 205
(1985) (Caamano I); Caamano Bros., 275 NLRB 823 (1985)
(Caamano II). I officially notice these prior reported cases.3
In Caamano II, Administrative Law Judge Earldean V.S.
Robbins found that the Union requested Respondent recog-
nize it as the representative of its employees on March 14,
1983. After Respondent refused, the Union commenced pick-
eting Respondent in the early hours of the following day. At
approximately 10 a.m. the Union withdrew the pickets and
sometime that afternoon Daniel Caamano ‘‘signed a collec-
tive bargaining agreement with the Union.’’ Judge Robbins
made no detailed findings on this latter point.
The Association—never mentioned in the prior cases—is
a multiemployer service organization which provides its
member-employers with: (1) collective bargaining, grievance
and other labor relations representation; (2) health care insur-
ance; and (3) customer credit reports. No written Association
authorizations are required; employers become Association
members by verbally requesting its services.
Association members are charged $10 per employee for
each employee covered by the health care insurance program
as Association dues. Consequently, each employer-member
must participate in that insurance program by one means or
another. Because the Association health care insurance pro-
gram is incorporated in the Association-Union collective-bar-
gaining agreement, the Association’s labor relations members
are automatically covered. However, an employer is free to
become an insurance-only member by requesting health care
insurance coverage without labor relations representation;
and, the labor relations members may revert to insurance-
only members by timely written notice to the Association.
The Association negotiates and executes a single collec-
tive-bargaining agreement with the Union on behalf of its
labor relations members; the Association never negotiates
separate agreements with the Union on behalf of any mem-
ber.
The Association-Union agreement in effect when this case
arose was effective by its terms from February 1, 1987, to
January 31, 1990. The predecessor agreement was effective
from February 1, 1984, through January 31, 1987.
2. Respondent’s Association membership
a. Facts
The General Counsel claims Respondent is a labor rela-
tions member of the Association and, as such, is bound by
the Association-Union agreement. Respondent claims it is, at
best, only an insurance member and is not bound to the As-
sociation-Union agreement.
Bruno Caamano’s testimony establishes clearly that some
form of relationship existed between Respondent and the
Union, and some degree of Association involvement in that
relationship. Specifically, Bruno:
1. Acknowledged that he used the Association’s services
in dealing with the Union.
2. Agreed that Association Agent George Huizar ‘‘was
representing us’’ during grievance meetings with union rep-
resentatives concerning the 1988 grievance filed by Respond-
ent’s driver, Alfredo Gonzales.
3. Frequently checked the progress of the Gonzales griev-
ance with Huizar.
4. Prepared and submitted Respondent’s seniority roster—
although incomplete—in compliance with the Union’s Feb-
ruary 1989 request.
5. Met with and submitted some information to an agent
of the contractual pension trust administrator conducting an
audit under the Association-Union agreement.
6. Otherwise regularly met with Union Agents Abelardo
(Lalo) Rodriguez and Alfred Hernandez about employee
work problems.
7. Explained that he met with union representatives upon
request ‘‘since I was Union.’’
8. Bitterly asserted that ‘‘they forced the Union on us in
1985.’’
According to Richard Mount, the Association vice presi-
dent, Respondent became an Association labor relations
member in 1983. Mount claims that Daniel Caamano, one of
Respondent’s owners, was responsible for aligning Respond-
ent with the Association in that fashion. Mount recalled that
Daniel telephoned him at the time saying: ‘‘I want to talk
to you now . . . the Union has hit us.’’ Mount promptly
went to Daniel’s office. At that time Daniel told Mount that
‘‘the Union had him sign a paper saying that [Caamano
Brothers] would be a part of the Teamsters.’’ Caamano fur-
ther told Mount, ‘‘I might as well get into the Association
and be one of the other companies in there.’’ From that time
forward, the Association treated Respondent as one of its
labor relations members. In particular, Mount said Respond-
ent was mailed significant notices concerning Association
collective-bargaining activities.
Association records establish that Respondent made dues
payments to the Association for at least some of its employ-
ees through January 1989. Mount claims all of its members
were represented for labor relations purposes when Respond-
ent joined and that Daniel did not indicate any desire to do
otherwise. On the contrary, the inference suggested by the
timing of its affiliation with the Association—during or im-
mediately after the Union’s strike for recognition—is that
Respondent intended to become a labor relations member.
Daniel Caamano did not testify in this proceeding nor was
his absence in any way explained. In addition, no evidence
was proffered to establish that Respondent maintained a sep-
arate collective-bargaining agreement with the Union at any
time.
b. Analysis and conclusions
Where an employer expressly confers on a joint bargaining
agent the power to bind it in future negotiations or, by its
course of conduct, unequivocally manifests a desire to be
bound in future collective bargaining by group rather than in-
dividual action, the Board deems the employer to be a mem-
ber of the multiemployer group. Greenhoot, Inc., 205 NLRB
250 (1973), and the cases cited therein at fn. 3. Once bound
by group action, an employer may withdraw unilaterally
from the multiemployer group by written notice given prior
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Art. V, sec. 1 of the Association agreement provides that a union and As-
sociation agent may ‘‘inspect time or employment records dealing with the in-
terpretation of this Agreement’’ provided the employer’s business operations
are not interfered with or interrupted.
5 During the hearing and in the briefs these two individuals were alluded
to as relatives of the Caamano owners. Art. IV, sec. 3 of the Association
agreement excludes certain relatives of the owners for limited purposes, but
the record is insufficient to determine the scope of this exclusion or its appli-
cability to these two employees.
to the contractually established date for modification of the
current agreement or the date established to commence group
negotiations. Retail Associates, 120 NLRB 388 (1958). Ap-
plying these principles here, I find that Respondent was
bound to the 1987–1990 Association-Union agreement.
Mount’s testimony that Respondent became a labor rela-
tions member in 1983 at the request of Daniel Caamano is
plausible when considered in connection with the cir-
cumstances reported in Caamano II. The fact that Daniel
Caamano did not appear to contradict Mount’s assertion that
Respondent was a full Association member, coupled with
Bruno’s concession that he was not aware of Daniel’s com-
mitment, strongly supports Mount’s credibility on this ques-
tion.
Bruno Caamano acknowledges some form of union rec-
ognition by Respondent. No corollary evidence exists to indi-
cate this recognition took any form other than through the
Association. Moreover, Respondent’s reliance on George
Huizar, an Association official, for representation in the
Gonzales grievance processing strongly supports the conclu-
sion that Respondent regarded itself to be a labor relations
member and not merely an insurance member as argued here.
Respondent argues the evidence fails to establish that the
scope of Respondent’s authorization to the Association in-
cluded collective bargaining. Instead, Respondent claims,
‘‘[t]he Company was merely advised that the Association
would assist in insurance matters, credit reporting and griev-
ances.’’ This argument lacks merit.
Respondent supports its argument from a portion of
Mount’s testimony concerning his meeting with Daniel
Caamano during or following the Union’s 1983 recognition
strike. When asked if he explained the services the Associa-
tion would provide for Respondent, Mount testified that he
explained Respondent could ‘‘have the insurance program
. . . credit reporting services . . . and that we would rep-
resent him if he had any problems with the union grievances
or anything.’’
I am satisfied that Mount was merely outlining examples
of the services available from the Association on this occa-
sion and that Respondent’s effort to read a limitation on the
Association’s scope of authority based on this testimony is
unwarranted. Historically, the Association has not rep-
resented employers in labor relations matters outside the con-
text of the multiemployer collective-bargaining agreement.
Hence, the only plausible explanation for Mount’s offer of
Association grievance representation lies in the fact that the
two men understood that the Association agreement would
be applied to Respondent’s employees.
But more importantly, following the foregoing testimony,
Mount recalled Daniel Caamano’s charter to the Association
contained in the following words: ‘‘I might as well get into
the Association and be one of the other companies in there.’’
Fairly read, these words clearly reflect the requisite intent on
Daniel’s part to be bound by group action. Absent this con-
clusion, the record is void of any explanation for Respond-
ent’s conduct vis-a-vis the Union as outlined by Bruno.
Based on the foregoing, I find Respondent became a labor
relations member of the Association by virtue of Daniel’s ac-
tions in 1983. As no evidence shows Respondent ever timely
withdrew its authorization to the Association to act on its be-
half in collective bargaining, I find Respondent was bound
to the 1987–1990 Association-Union agreement.
3. The information request
a. Facts
On September 26, 1988, employee Adolfo Gonzales filed
a grievance claiming that he had not received proper vacation
pay, that he was not being paid for overtime work and that
he had been laid off for a week out of seniority. On October
12, 1988, Union Agent Alfred Hernandez filed a grievance
claiming that Respondent was discouraging new employees
from registering with the Union. This latter grievance also
requested a list of employees who had been paid the contrac-
tual bonus so the Union could investigate employee com-
plaints concerning the failure to receive the bonus.
A grievance meeting was held at Respondent’s premises
on January 12 whereat both grievances were discussed. Re-
spondent was represented by Bruno Caamano and Associa-
tion Representative Huizar. The Union was represented by
Agents Rodriguez and Hernandez. Grievant Gonzalez was
present at the request of Caamano.
During the meeting Rodriguez requested a seniority roster
of employees. Apparently questioning the need, Caamano as-
serted that there were only five or six employees. Rodriguez
asserted that union agents had observed 15 or 16 employees
working at Respondent’s facilities and that the Union wanted
the roster to determine who was in the bargaining unit.4 The
exchange then was diverted to a discussion concerning the
Union’s willingness to make concessions about the number
of employees covered by the contract and no clear resolution
concerning Rodriguez’ information request was reached.
Following the January 12 meeting, Hernandez made at
least three unsuccessful efforts to speak with Bruno Caamano
by telephone and filed another grievance on February 3
greatly expanding the claims of noncompliance with the
labor agreement. This latter grievance requested a response
within 10 days. The only known response Hernandez re-
ceived throughout the period following the January 12 meet-
ing, save that discussed immediately below, was advice from
Huizar to pursue other avenues of action because the Asso-
ciation too had difficulty securing Respondent’s cooperation.
On February 7 Hernandez dispatched a letter to Bruno
Caamano requesting within 5 days a ‘‘seniority roster of all
employees who should be covered under the current labor
agreement.’’ This request was prompted by his personal ob-
servations and employee reports that several individuals who
did not appear in the union records were performing bargain-
ing unit work.
In response, Hernandez received a handwritten list dated
February 9 bearing seven names. The hiring dates for three
listed individuals is incomplete. Thus, the hiring date for
Gonzales, the employee who had a pending grievance alleg-
ing Respondent failed to apply seniority for his layoff, is list-
ed solely as 1985. The year of hire is not listed for two other
employees.5
27CAAMANO BROS.
6 That charge, which also alleges Respondent violated Sec. 8(a)(5) of the
Act, was withdrawn a month later.
On March 15 former Union Counsel James Ball wrote to
Bruno Caamano concerning, inter alia, the employee roster.
Ball asserted that Caamano had failed to return two tele-
phone calls during the previous week and threatened to file
NLRB charges in the event he did not receive ‘‘a direct com-
munication from you or your representative concerning these
matters.’’ Although there is no evidence as to whether or not
Caamano attempted to contact Ball, Hernandez filed an
NLRB charge against Respondent on March 29.6
Bruno Caamano conceded on cross-examination that Re-
spondent employed at least 13 employees through this pe-
riod. However, he claimed that over the years he had verbal
understandings with Rodriguez and other union agents con-
cerning which employees would be required to join the
Union, an assertion which implied an agreement by the
Union that Respondent could employ others who would be
of no concern to the Union.
b. Analysis and conclusions
An employer is obliged to furnish the employee represent-
ative with information necessary and relevant ‘‘in carrying
out its statutory duties and responsibilities.’’ NLRB v. Acme
Industrial Co., 385 U.S. 432, 437 (1967). As the information
sought is specifically related to the grievance filed by
Gonzales and the bonus payment information sought in the
Union’s grievance is directly related to a contractual benefit,
I find both requests to be presumptively relevant. Curtiss-
Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965);
Viewlex, Inc., 204 NLRB 1080 (1973).
The record here strongly supports the inference which I
have made that the information furnished by Respondent on
February 9 is incomplete. I do not credit Bruno Caamano’s
claim that some type of members-only arrangement existed
with the Union which might justify the incomplete informa-
tion submitted on February 9. Accordingly, I find, as alleged,
that Respondent violated Section 8(a)(5) of the Act by failing
to furnish the Union with a complete seniority roster when
requested.
4. Contract repudiation
a. Facts
Respondent made no serious attempt to dispute the Gen-
eral Counsel’s evidence concerning Respondent’s failure to
apply the current Association agreement; indeed, Bruno
Caamano admitted substantially all such matters the General
Counsel sought to prove through employee witnesses.
During the term of the most recent agreement Respondent
has consistently failed to pay the following contractual
wages, benefits, and contributions: (1) specific hourly rates
for regular time hours; (2) overtime premium rates for time
worked in excess of 40 hours per week, 8 hours per day, and
all hours worked on Saturday; (3) the yearly employee
bonus; (4) all required holiday pay; (5) vacation pay at all
in some instances and in improper lower amounts in other
instances; (6) pension fund contributions for any employee;
and (7) health benefit contributions for any employee after
February 1989 and for a limited number of employees (5)
prior thereto. In addition, Respondent acknowledges that it
failed to keep any record of time worked by employees con-
trary to the applicable contract and Bruno Caamano admitted
that he did not notify the Union of new hires and termi-
nations nor postpromotion opportunities for bid by unit em-
ployees as required by the agreement.
In essence, Respondent paid its unit employees a weekly
salary; warehousemen received $500 per week and its drivers
received $450 per week. Warehousemen who worked on Sat-
urdays were paid $50 cash from a petty cash fund. Associa-
tion records disclose that contributions for health benefits
were made on behalf of at most 5 of Respondent’s 13 to 15
unit employees. A pension trust fund representative testified
that there is no record of any contribution by Respondent and
that Bruno Caamano frustrated several attempts by the fund
administrator to audit records in accord with the collective-
bargaining agreement and trust documents.
b. Analysis and conclusions
Section 8(a)(5) of the Act provides that it is an unfair
labor practice for an employer to refuse to bargain collec-
tively with the representative of its employees. Section 8(d)
defines the duty to bargain collectively to include the obliga-
tion to maintain a collective-bargaining agreement in effect
absent specific notice requirements not applicable here.
Respondent’s breach of contract defense is fashioned from
the fundamental jurisdictional distribution in the Act. Al-
though Congress empowered the Board to remedy unfair
labor practices defined in the statute, every breach of a col-
lective-bargaining agreement is not per se an unfair labor
practice. Papercraft Corp., 212 NLRB 240 (1974). Disputes
limited to the application and interpretation of the collec-
tively bargained instrument lie with the jurisdiction of the
courts under Section 301 of the Act and to the parties’ own
dispute resolution mechanism. United Telephone, 112 NLRB
779 (1955). In overlapping areas, it has been Board policy
for nearly 20 years to defer to the parties’ method of resolu-
tion provided certain standards are met. See generally
Collyer Insulated Wire, 192 NLRB 837 (1971).
In Oak Cliff-Golman Baking Co., 207 NLRB 1063 (1973),
the Board specifically addressed and rejected the claim that
a unilateral, across-the-board wage reduction amounted to
only a breach of agreement and, therefore, not cognizable by
the Board under the duty to bargain provisions of the Act.
There the Board reasoned:
It cannot be gainsaid that an employer’s decision in
midterm of a contract to pay its employees for the re-
main der of the contract’s terms at wage rates below
those provided in the collective-bargaining agreement
affects what is perhaps the most important element of
the many in the employment relationship which Con-
gress remitted to the mandatory process of collective
bargaining under the Act. Because so substantial a por-
tion of the remaining aspects of a bargaining contract
are dependent upon the wage rate provision, it seems
obvious that a clear repudiation of the contract’s wage
provision is not just a mere breach of the contract, but
amounts, as a practical matter, to the strik ing of a
death blow to the contract as a whole, and is thus, in
reality, a basic repudiation of the bargaining relation-
ship. We believe the jurisdiction granted us under the
Act clearly encompasses not only the authority but the
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.
obligation to protect the statutory process of collective
bargaining against conduct so centrally disruptive to
one of its principal functions—the establishment and
mainte nance of a viable agreement on wages. [207
NLRB at 1064.]
Applying the standard articulated in the foregoing state-
ment, I find that Respondent has effectively repudiated the
Association agreement by failing to apply wage and benefit
provisions to the covered employees. The evidence summa-
rized above establishes conclusively that Respondent, at the
time of the hearing, applied none of the agreement’s eco-
nomic benefits to any of its unit employees. Respondent’s
only justification lies in its contention—previously rejected—
that it is not bound by the Association agreement at all.
Moreover, Respondent’s breach of contract contention is
belied by other conduct. Its failure to maintain accurate time
records and to disclose information related to hires and ter-
minations, employee seniority, and the pension fund audit is
indicative of an attempt to conceal data essential to assure
compliance with the agreement. And even though Respond-
ent’s brief faults the Union for not pursuing its contractual
remedies more vigorously, Respondent’s repeated failure to
respond to union communications following the January 12
meeting strongly suggests that it intended to stonewall the
dispute resolution mechanism.
Absent from this case is any colorable justification for Re-
spondent’s failure to apply very straightforward provisions of
the agreement. This fact alone distinguishes the present cir-
cumstances from those normally found where Collyer and its
progeny are applied and, for this reason, I reject Respond-
ent’s assertion that those cases control this outcome.
In sum, the evidence here shows that Respondent failed to
adhere to the economic, disclosure, and dispute resolution
provisions of the collective agreement to which it was bound.
Such wholesale disregard for the agreement goes well be-
yond the bounds of an ordinary contract dispute. Instead, I
find Respondent’s conduct is tantamount to repudiation of
the Association agreement, and, in so doing, Respondent has
violated Section 8(a)(5) as alleged.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union is the exclusive representative of an appro-
priate unit of employees (as described supra) within the
meaning of Section 9(a) of the Act.
4. By effectively repudiating the Association agreement
binding upon it and by refusing to furnish the Union with
a complete seniority roster of unit employees, Respondent
engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (5) of the Act.
5. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order (Order) requires
Respondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
The Order requires Respondent promptly furnish to the
Union a complete seniority roster listing all employees per-
forming bargaining unit work and their appropriate seniority
dates. Additionally, the Order requires Respondent to abide
by the terms of the Association agreement, and any successor
thereto, until it timely withdraws from the Association. Re-
spondent’s duty to apply the terms of the agreement is made
retroactive to November 1, 1988, a date which precedes the
filing of the charge herein by 6 months. Ellis Tacke Co., 229
NLRB 1296 (1977).
The extent of Respondent’s failure to apply the terms of
the applicable agreement and its liability arising therefrom is
left to the compliance stage of the proceeding. However, the
Order requires that Respondent make whole all unit employ-
ees and trust funds established under the agreement for their
benefit, and reimburse the Union for any dues it may have
failed to withhold and remit all by reason of its failure to
apply the agreement on or after November 1, 1988. Backpay
and dues reimbursement, if any, is to be controlled and com-
puted in accord with Ogle Protection Service, 183 NLRB
682, 683 (1970). The appropriate method of determining in-
terest on any backpay due is specified in New Horizons for
the Retarded, 283 NLRB 1173 (1987). Contributions to all
benefit trust funds is to be computed in accord with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
Although the General Counsel advances no supporting ar-
gument, his suggested order contains a provision providing
for a broad order enjoining any other interference with em-
ployee rights by this Respondent. In view of Respondent’s
two prior violations, the widespread and egregious nature of
this violation, and the lack of any substantial justification for
its present conduct, a broad order enjoining further inter-
ference is granted. Hickmott Foods, 242 NLRB 1357 (1979).
Finally, Respondent must post the attached notice to in-
form employees of their rights and the outcome of this mat-
ter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Caamano Brothers, Inc., Los Angeles,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively in good
faith with Food, Industrial and Beverage Warehouse, Drivers
29CAAMANO BROS.
8 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.’’
& Clerical Employees Union Local 630, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL–CIO (Union) as the exclusive collec-
tive-bargaining representative of the employees in the appro-
priate unit specified infra.
(b) In any other manner interfering with, restraining, or co-
ercing employees because they exercise rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Apply the terms of the 1987–1990 agreement between
the Associated Produce Dealers and Brokers of Los Angeles,
Inc. (Association) and the Union, and any successor thereto
binding on it, to all employees employed in the unit specified
in paragraph 1(a), above.
(b) Provide the Union promptly with a complete seniority
roster for employees employed in the unit specified in para-
graph 1(a), above.
(c) Make whole its employees’ trust funds established for
their benefit and the Union for all losses in pay, benefits, and
dues incurred by them as a consequence of its failure to
apply the terms of the Association-Union agreement in the
manner specified by the remedy section of this decision.
(d) 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 determine the
backpay, trust fund reimbursements and dues reimbursements
due under the terms of this Order.
(e) Post at its Los Angeles, California facilities copies of
the attached notice marked ‘‘Appendix.’’8 Copies of the no-
tice, on forms provided by the Regional Director for Region
21, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to bargain collectively in good faith
with Food, Industrial and Beverage Warehouse, Drivers &
Clerical Employees Union Local 630, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO (Union) as the exclusive representa-
tive of the employees in the following appropriate unit:
All sales persons, freezer persons, receiving clerks, dis-
patchers, driver/forklift operators, receiver helpers,
housemen, semi-drivers, double drivers and loaders em-
ployed by the employer-members of the Associated
Produce Dealers and Brokers of Los Angeles, Inc. (As-
sociation); excluding all other employees, professional
employees, guards and supervisors as defined in the
Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees because they exercise rights pro-
tected by the National Labor Relations Act.
WE WILL abide by and apply the terms of any agreement
between the Association and Union to which we are bound
to all employees employed in the above unit.
WE WILL promptly provide the Union with a seniority ros-
ter of all employees performing work in the above unit.
WE WILL make employees and trust funds established for
their benefit whole for all losses suffered by them because
we failed to apply the terms of the Association-Union agree-
ment retroactive November 1, 1988, together with interest as
provided by law.
WE WILL reimburse the Union for any dues we failed to
withhold and remit pursuant to the terms of the Association-
Union agreement.
CAAMANO BROTHERS, INC.