Goodie Brand Packing Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 451 (N.L.R.B. 1984)

GOODIE BRAND PACKING CORP.
Goodie Brand Packing Corp. and Roberto Sanchez
and Elva Rodriguez. Cases 2-CA-18205, 2-
CA-18299, 2-CA-18361, and 2-CA-18370
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 January 1983 Administrative Law Judge
Arthur A. Herman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, ' and
conclusions and to adopt the judge's recommended
Order as modified.
We agree with the judge's finding that the Re-
spondent violated Section 8(a)(l) of the Act by
certain of its statements to and conduct regarding
Union Steward Roberto Sanchez. However, we do
not agree with his further findings that the Re-
spondent violated Section 8(a)(3) of the Act by dis-
charging Sanchez, that the strike in protest of San-
chez' discharge was a protected unfair labor prac-
tice strike, and that the strikers were discharged
and refused reinstatement in violation of Section
8(a)(3).
The facts are fully set forth in the judge's deci-
sion. Briefly, the circumstances surrounding the
discharge and strike are as follows. About 5:30
a.m., Friday, 25 September 1981, Sanchez left the
wholesale market with which the Respondent does
business in a company truck to return to the Re-
spondent's premises. As he turned left onto a major
highway, he unwittingly went south in a north-
bound lane. When he realized his error, he stopped
the truck, put it in first gear, and proceeded to
cross the concrete divider that separates the north
and south lanes. The concrete divider is 12 inches
wide and 5-1/2 inches high. Nat Solomon, one of
four brothers who are the Respondent's principals,
was proceeding south on his way back from the
market at the same time and observed the entire in-
cident.
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
la'\ judge's credibility resolutions unless the clear preponderance of all
the relevant evidence collvinces us that they are incorrect. Standard Drr
Wall Products, 91 NLRB 544 (1950). enfd. 188 F 2d 362 (3d Cir 19l51
We have carefull. examinied the record a.d find no basis for reversing
the findings
270 NLRB No. 83
When Sanchez returned to the Respondent's
premises, he was told that he was indefinitely sus-
pended. It was later determined that $2300 damage
was done to the undercarriage of the truck. The
Respondent at no time notified Sanchez as to when
he should return to work or that it had agreed with
Union Representative Mogulnicki that the suspen-
sion was to last 2 weeks. In these circumstances,
we agree with the judge that Sanchez was dis-
charged rather than suspended.
After the employees learned of steward Sanchez'
discharge, they commenced a strike at the Re-
spondent's premises. At various times thereafter,
the Respondent reinstated some of the strikers and
discharged others. The contract between the Re-
spondent and the Union contained a no-strike
clause. Since the judge found that Sanchez' dis-
charge was a serious unfair labor practice within
the meaning of Arlan's Department Store2 he con-
cluded that the strike was protected and that the
Respondent further violated Section 8(a)(3) by dis-
charging and refusing to reinstate the strikers.3
The Board held in Wright Line 4 that in cases al-
leging violations of Section 8(a)(3) which turn on
employer motivation, the General Counsel must
first make a prima facie showing sufficient to sup-
port the inference that protected activity was a mo-
tivating factor in the employer's decision. Then,
once this is established, the employer has the op-
portunity to demonstrate that it would have
reached the same decision even in the absence of
the protected conduct.
In this case, the judge failed to apply the Wright
Line test and analyze the evidence relied on by the
Respondent in defense of its conduct. Rather, the
judge merely concluded that the discharge of San-
chez was unlawful because it was the "direct
result" of his union activities.
Applying Wright Line we find that the violations
of Section 8(a)(l) committed by the Respondent
clearly are sufficient to support a prima facie show-
ing that union activity was a motivating factor in
the Respondent's decision to discharge Sanchez.
However, we also find that the Respondent has es-
tablished that it would have discharged Sanchez
even in the absence of his activity on behalf of the
Union. In our opinion, the Respondent has shown
that Sanchez' conduct in driving a company truck
down the wrong side of a major highway for some
distance, crossing the median, and damaging the
truck is such gross negligence that it would have
provoked discharge of any employee irrespective
2 13 NI RB 802 (1961)l
:' In vies, of our disposition of the case. we fitd it unnecessary to pass
on the judge's application of Arlan's.
4 251 NLRB 1083 (19X O). enfd. ,62 F.2d 899 (Ist Cir. 1981).
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any animus the Respondent may have harbored
against that employee. Not only was Sanchez' con-
duct responsible for doing $2300 in damages to the
truck, it risked life-threatening consequences. There
has been no showing that the Respondent excused
such egregious misconduct on the part of other em-
ployees. Sanchez cannot, by being a union steward,
insulate himself from justifiable discipline or use his
union office as an excuse for not performing his job
duties in a competent manner. 5 Accordingly, we
shall dismiss the complaint insofar as it alleges that
the Respondent discharged Sanchez in violation of
Section 8(a)(3) of the Act.
As the discharge of Sanchez was lawful, we fur-
ther find that in striking in protest the employees
violated the no-strike clause in the collective-bar-
gaining agreement and engaged in unprotected ac-
tivity. Under these circumstances, it clear that "an
employer is free to pick and choose whom he will
fire and whom he will reinstate after the strike, so
long as the basis for the selection is not discrimina-
tory." Chrysler Corp., 232 NLRB 466, 474 (1977).
In this case, the judge made no such finding of dis-
criminatory selection. Accordingly, we shall also
dismiss the complaint insofar as it alleges that the
Respondent violated Section 8(a)(3) in its treatment
of the striking employees.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Goodie Brand Packing Corp., Bronx,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
Order as modified.
1. Delete paragraphs l(a) and (b) and reletter
paragraphs l(c) through (f) as paragraphs l(a)
through (d).
2. Delete paragraphs 2(a) through (c) and relet-
ter paragraphs 2(d) and (e) as paragraphs 2(a) and
(b).
3. Substitute the attached notice for that of the
administrative law judge.
E I. Dupont De Nemours, 263 NLRB 159, 176 (1982); East Texas
Motor Freight, 262 NLRB 868 (1982).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
Accordingly, we give you these assurances:
WE WILL NOT warn or threaten our employees
with discharge for engaging in protected concerted
activities.
WE WILL NOT coercively interrogate our em-
ployees concerning union sentiments and activities.
WE WILL NOT assign more onerous working con-
ditions on our employees because they engaged in
protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
GOODIE BRAND PACKING CORP.
DECISON
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge. The
charge in Case 2-CA-18205 was filed on July 13, 1981,1
by Roberto Sanchez, an individual. On August 21, a
complaint issued thereon alleging that Goodie Brand
Packing Corp. (Respondent or Company) violated Sec-
tion 8(a)(1) of the National Labor Relations Act by
threatening, warning, and interrogating employees, all
because they engaged in union activities on behalf of
Local 202, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union or Local 202). On August 27, Sanchez filed a
second charge in Case 2-CA-18299, on which a com-
plaint issued on October 7, alleging the imposition of
more onerous conditions of employment and further
warnings to Sanchez, all because Sanchez was chosen
shop steward and because he filed the previous charge,
I All dates herein are 1981 unless otherwise indicated.
452
GOODIE BRAND PACKING CORP.
all in violation of Section 8(a)(1), (3), and (4) of the Act.
On September 30, Sanchez filed a third charge in Case
2-CA-18361, and on October 9, Elva Rodriguez, an indi-
vidual, filed a charge in Case 2-CA-18370. On October
29, a consolidated complaint issued thereon, alleging fur-
ther violations of Section 8(a)(1), (3), and (4) of the Act,
including the discharge of Sanchez, Rodriguez, and sev-
eral other employees. On October 30, an order consoli-
dating cases and notice of hearing issued. Respondent
duly filed answers to all complaints and denied the com-
mission of the alleged unfair labor practices.
This case was tried before me on eight consecutive
workdays from March 2 through 11, 1982, in New York,
New York. The General Counsel's letter memorandum
and Respondent's memorandum of law were timely filed,
and have been duly considered.
Upon the entire record, including my observation of
the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation engaged in the
repacking and nonretail sale and distribution of tomatoes
and other produce. Annually, Respondent purchases and
receives at its Bronx, New York facility tomatoes and
other produce valued in excess of $50,000 directly from
points located outside the State of New York. The com-
plaints allege, Respondent does not deny, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
I find that the Union has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a wholesale fruit and vegetable
business at its premises on 153d Street in the Bronx, New
York. It specializes in selling tomatoes to retail stores
and restaurants. In addition to selling tomatoes, it also
sells avocados, limes, mangoes, lettuce, and onions. Re-
spondent purchases the produce in bulk from growers
throughout the United States and Mexico, as well as
from distributors located in the Hunts Point Market in
the Bronx. 2 Upon arrival at Respondent's premises, the
tomatoes are processed. They are sorted out according
to size and color and repacked in different sized contain-
ers for shipment to various outlets.
The business is run by four Solomon brothers and sev-
eral nephews. 3 Abe Solomon, Respondent's president, is
2 Respondent also grows produce on farms it owns in Florida, and
ships it north for distribution.
3 At the beginning of the hearing, Respondent stipulated that at all
times material herein, all four brothers, Abe, Leo, Sol, and Nat, and
David Solomon, a nephew, were supervisors within the meaning of Sec.
2(11) of the Act.
the head buyer and in charge of labor relations. Re-
spondent employs floorworkers, drivers, and porters.4
The floorworkers operate (I) the stripping machines
which sort the tomatoes by color, (2) the packing ma-
chines which package the tomatoes in assorted size con-
sumer cartons, and (3) the Tropical packing machines,
and they prepare tomatoes for bulk sale and repackaging.
Drivers deliver Respondent's produce on its own fleet of
trucks; no merchandise is picked up by Respondent's
drivers except that merchandise which is purchased by
Respondent at the Hunts Point Market.
The Union has had separate Associationwide contracts
and renewals with Respondent covering the floor-
workers and drivers going back several years. Both cur-
rent collective-bargaining agreements contain valid
union-security clauses and no-strike and no-lockout
clauses, and both provide for the adjustment of griev-
ances and arbitration. In addition, both agreements pro-
vide for recognition by Respondent of the Union's right
to designate shop stewards. Felix Liciaga, a floorworker,
testified that he was the shop steward for anywhere from
6 to 12 years up to sometime in 1978 or 1979. He stated
that he quit being shop steward because he became ag-
gravated when he could not settle the employees' griev-
ances with management.
Approximately a year passed before Elva Rodriguez, a
floorworker, became the next shop steward in February
1980.5 Rodriguez stated that she represented both the
floorworkers and drivers, and that about 2-3 months
later, Raphael Larracuente, a floorworker, was appointed
by the Union to be the assistant shop steward. Unlike her
predecessor, Rodriguez made a determined effort to in-
crease union membership among the employees by hand-
ing out membership cards to be filled out. For this she
was rebuked by Leo Solomon while she was having
lunch with two other employees on its premises, and told
to conduct her union business outside the plant; this oc-
curred about March 1980. In the beginning of April
1980, there was a transit strike in New York City and,
according to Rodriguez who live in Yonkers, New York,
she was unable to get to work, and, on April 14, 1980,
she received a telegram from Respondent informing her
that she was offered transportation. e With the telegram
in hand, she reported to the plant for work and was told
by Sol Solomon that there was no wc-k for her. When
the other employees heard about this and inquired of
management, they were told that Rodriguez was an
"S.O.B." With that, the employees left the premises and
gathered outside. About an hour later, Teddy Mogil-
nicki, a union representative, appeared and, after listen-
ing to the employees, he went inside. Shortly thereafter
he emerged to announce that everything was settled, and
that Rodriguez, along with the other employees, should
return to work. Rodriguez testified to further unjustified
4Respondent employs two porters at its location at the Hunts Point
Market but they are not involved in the instant proceeding.
It is Rodriguez' uncontroverted testimony that only 11 employees
out of a complement of about 60 were members of the Union at the time
she was elected shop steward. and that the election took place in the
Union's office. Rodriguez has been an employee of Respondent since Oc-
tober 1959, and joined the Union in 1961
6 Rodriguez denies receiving any offer of transportation.
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
harassment by Respondent during August and September
1980 in the form of letters by management to the Union
complaining about Rodriguez' refusal to perform her role
as shop steward and that she engaged in a deliberate
slowdown in her work. When she confronted Mogilnicki
with these letters, he told her to forget about them.
About the same time, Rodriguez and her sister Santi
were told that from now on they would be required to
lift 32-pound boxes of tomatoes, which previously had
been lifted for them by a man stationed near their work
station.7 When Rodriguez complained to Abe Solomon
and stated that she had not been required to do that for
the past 22 years, he told her that her alternative was to
leave. When Rodriguez complained to Mogilnicki, he
told her that he could not help her. And so, Rodriguez
continued to work, lifting the boxes; at one point she
brought a doctor's note to Abe Solomon because of the
back pain she had developed, but to no avail.8
One further event occurred in 1980 and that was the
filing of a decertification petition by Rodriguez on No-
vember 6, on behalf of Respondent's employees in Case
2-RD-1023. Inasmuch as the unit found appropriate was
broader than that sought by the petitioner,9 and the peti-
tioner did not possess the requisite showing of interest in
the broader unit, the petitioner chose to withdraw the
petition, rather than have it dismissed by the Regional
Director.
B. Current Events
Respondent hired Roberto Sanchez as a driver in 1975,
and he became a Local 202 member in 1978.10 In Octo-
ber 1980, Sanchez became a member of a dissident group
within Local 202 known as Teamsters for a Democratic
Union (TDU). 1 Rodriguez states that she decided to
resign as shop steward in June 1981, because of all the
problems she had with management as related supra, and
she advised Mogilnicki of her decision. On July 1, 1981,
Sanchez was elected shop steward by the employees and,
like his predecessors, he represented both the drivers and
the floorworkers. It is undisputed that Respondent re-
fused and continued to refuse to recognize Sanchez as
shop steward for the floorworkers, while it recognized
him as shop steward for the drivers. It is Respondent's
contention that as a driver Sanchez spent most of his
working time on the road, and therefore could not ade-
quately fulfill his duties as shop steward for the floor-
workers. 1 2
7 Rodriguez' job was to take the tomatoes out of the 32-pound box and
separate them into two different boxes.
8 It is noted that all of the above is not alleged as violations in any of
the complaints before me inasmuch as these events predate the 10(b)
period. However, the General Counsel has offered it as background for
the material allegations that follow, and it is for that reason that I relate
the incidents herein.
9 Respondent is and was a member of the New York-New Jersey
Tomato Repackers' and Brokers' Association which negotiated contracts
for its members.
lo Sanchez states that he was never asked to join, the Union but that he
did it on his own volition.
ii Respondent did not know this unltil a year late-r.
12 On1 the same day Sanchez was elected, Johl Diaz, a floorsworker,
was designated to be an assistant shop steward anid Sanchez instructed
him to accept complaints from the employees and to pass them on to
Sanchez for processing.
As soon as Sanchez was elected on July 1, 1981, he
became a very active shop steward. It was his contention
that Local 202 had not been policing Respondent's prem-
ises sufficiently, and was not enforcing the terms of the
contracts as it should be. And so, during his short tenure,
Sanchez filed 45 grievances with Local 202. Some of
them dealt with backpay claims, some with floorworkers'
problems on the premises, some with layoffs out of se-
niority, and some with disciplinary layoffs due to em-
ployees' refusals to work overtime.
Sanchez states that, shortly after he joined Local 202
in 1978, Leo Solomon inquired of him why he joined the
Union and, when Sanchez responded that he needed the
benefits for his family's protection, Leo Solomon told
him that he should have talked it over with management
instead of joining the Union. He stated also that in Octo-
ber 1980, when Local 5 of the Butchers Union became
interested in representing Respondent's employees, and
the latter had filed the decertification petition discussed
supra, he, Sanchez, along with about 20 other employees
of Respondent attended a union meeting and Sanchez
acted as the translator; and that shortly thereafter he was
questioned by several of the Solomon brothers who ac-
cused him of talking to other employees about union
business while on working time, and that David Solomon
told him to be careful because he was following him on
his route. Thereafter, on October 10 and December 1,
1980 (see G.C. Exhs. 2 and 3), Sanchez was given copies
of letters sent by Respondent to Local 202 complaining
of Sanchez' lethargic performance on the job.' 3
And so, according to Sanchez, when he became such
an active shop steward, Respondent reacted against him.
On the day following Sanchez' election, July 2, 1981,
after Sanchez had a conversation with Mogilnicki re-
garding the filing of grievances, Abe Solomon ap-
proached Sanchez and asked, "why are you organizing
the workers here?" When Sanchez responded that this
was a union shop, Solomon wanted to know what San-
chez was getting out of it and said, "from now on, you
me [sic] going to have a fight every single day, and let's
see how long you last in your job."
And, about a week after Sanchez was elected shop
steward, an incident occurred involving three floor-
workers whom Abe Solomon refused to allow to work
because they had refused to work overtime the day
before. The workers asked Sanchez to intercede on their
behalf and, when he did, Abe Solomon told Sanchez that
as far as he was concerned Sanchez was not the shop
steward for the floorworkers, and he had better go back
to work or else be fired. Sanchez states that he told Mo-
gilnicki what had occurred and Mogilnicki told him that
there was nothing he could do about it.t4
'3 The evidence is void of any prior written record of any difficulties
encounltered by Respondent re Sanchez' work performance since he
began in 1975. In addition, Sanchez adequately explained what occurred
on those two occasions, and his explanation went unrebutted.
4 It is interesting to note that Sanchez' testimony, which was entirely
ullrebutted. also stated that other nonmember employees who also re-
fused to work overtime the day before were permitted to work the next
day .
454
GOODIE BRAND PACKING CORP.
Other instances of Respondent's opposition to Sanchez
occurred in August and September 1981. In August, Abe
Solomon told Sanchez from now on Sanchez would
have to lay out his own money for tolls for which he
would be reimbursed. Sanchez protested to Mogilnicki
since this was a reversal of prior policy whereby if a
driver asked for toll money before going on a trip he
was never refused. Mogilnicki tried to get Solomon to
agree, but Solomon was adamant and refused. In addi-
tion, he told Sanchez that he did not want to see San-
chez "Talking to anybody at all in the plant, because the
only thing you've got in mind is union activities." And,
again in September, Respondent accused Sanchez of con-
versing with other employees about union activities
while they were on an authorized break in the men's
room, and warned him about it.
At the time Sanchez was elected shop steward, he
worked the day shift from 7 a.m. to 4 p.m., Monday to
Friday, plus about 8-10 hours of overtime per week. 15
Toward the end of July, Respondent told Sanchez that
because a night-shift driver was going on vacation, San-
chez would work the night shift for 2 weeks."6 At the
end of the 2 weeks, the employee who was on vacation
was put on the day shift and Sanchez continued on the
night shift. In addition, Sanchez was told that he would
have to work Sunday also from 8 a.m. to whatever time
he would finish and then report Sunday night at 12 mid-
night for the usual weekly night shift. Sanchez protested
but to no avail, despite the fact that Sanchez enjoyed se-
niority over at least a half-dozen other drivers, all of
whom had the requisite licenses to drive the same type
of truck he did.
And, since Sanchez became shop steward, Respondent
sent letters of complaint to Local 202 regarding his work
performance on July 31, August 31, and September 10,
16, and 18. It is Respondent's contention, as testified to
by Abe Solomon, that Sanchez' route was changed from
time to time because he was not doing a good job, and
that these changes took place before he became shop
steward. In explaining why Sanchez was put on the
Hunts Point night shift, Solomon gave several reasons:
That the driver needed a class I license which Sanchez
had; that the job required a driver with intelligence,
which Solomon acknowledged that Sanchez had; and
that since Nat Solomon was at the Hunts Point Market
quite often, he could keep an eye on Sanchez.
C. The September 25 Incident and Subsequent Events
About 5:30 a.m., on Friday, September 25, Sanchez
left the Hunts Point Market drivng a company truck
back to Respondent's premises. As he turned left onto
Bruckner Boulevard, he unwittingly went south in a
north bound lane. When he realized his error, he stopped
the truck, put it in first gear and proceeded to cross the
concrete divider that separates the north and south
lanes.'7 Nat Solomon had been proceeding south when
S1 This had been Sanchez' shift for 2 years prior to July I, 1981.
16 Night shift hours were 12 midnight to 9 a.m
i? The divider is 12 inches wide and 5-1/2 inches high
this incident occurred and observed the whole thing.
Sanchez then proceeded to Respondent's premises and
helped unload the truck. According to Sanchez, Abe
Solomon came up to him, and when he asked what hap-
pened, Sanchez related the incident, and Solomon merely
walked away. According to Solomon, he told Sanchez
"that at this particular time you're being suspended for a
period of time, and-." Solomon went on to say that it
was an indefinite suspension. Later that day Solomon ad-
dressed a letter to Local 202 confirming the fact that he
had indefinitely suspended Sanchez because of the inci-
dent, and that the damage to the undercarriage of the
truck was being evaluated.' About 15 minutes after
Sanchez was told by Solomon that he was indefinitely
suspended, Sanchez called Mogilnicki and told him. Mo-
gilnicki responded that he already knew because Solo-
mon had called him. According to Mogilnicki, Solomon
told him that "he was going to fire Sanchez because of
reckless driving"; Mogilnicki argued with Solomon and
got Solomon to change his mind; Mogilnicki understood
Solomon to say that he was suspending Sanchez for I
week; however, according to Mogilnicki, he went to Re-
spondent's premises later that day and Solomon told him
that he was suspending Sanchez for 2 weeks. Solomon
states that this conversation with Mogilnicki took place
on October 2, not on September 25.19 In any event, both
Solomon and Mogilnicki admit that neither of them ever
told Sanchez that the indefinite suspension had been con-
verted to a 2-week suspension. 20 Sanchez states further
that he received a call from Fox asking him to meet at
Fox's office on September 30. Sanchez showed Fox Re-
spondent's September 25 letter to Local 202, discussed
supra, and asked its meaning; whereupon Fox said,
"what the hell you think it is? You are fired."21 Sanchez
then proceeded to file his charge with the NLRB in Case
2-CA-18361, alleging the wrongful discharge.
As a result of what had transpired between September
25 and October 2, regarding Sanchez' status as an em-
ployee, and ignorant of any private arrangement reached
between Solomon and Mogilnicki on October 2, about
25-30 of Respondent's employee met on October 3 at a
community center near Respondent's premises to decide
what action they should take to support Sanchez because
they believed that he had been discharged. A decision
was made to put a picket line in front of Respondent's
premises on Monday, October 5, to protest Sanchez' dis-
'" Paid bills for the damage totaling approximately 52300 ere intro-
duced into evidence as R. Exhs. II and 12.
19 Although Moglinicki initially stated that both his telephone and per-
sonal contact conversations with Solomon took place on September 25,
he recanted later on to say that the conversation with Solomon on Re-
spondent's premises took place after his meeting in Fox's office. discussed
infra, which took place on September 30. Fox is counsel for Local 202
and his letter of September 30 to the New York State Board of Media-
tion requesting arbitration of Sanchez' indefinite suspension points out the
misunderstanding that existed between Solomon and Mogilnicki See
G.C Exh. 18.
2" Solomon stated that he weighed discharging Sanchez but, on advice
of counsel, opted for suspension.
21 Mogilnicki admits that he swas present at this meeting in Fox's
office.
- -
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge. 22 And, on Monday, October 5, a picket line was
set up by Sanchez with the aid of about 10 members of
the TDU. It was joined by about 35-40 employees of
Respondent. Some of the picket signs said: "We demand
our shop steward back to work"; "Give Daddy his job
back"; We're here in support of Roberto Sanchez, TDU
Member"; "Injury to one, injury to all." Abe Solomon
testified and Sanchez confirmed the fact that both Bagley
and Mogilnicki were present at the picket line on Octo-
ber 5 and were attempting to get the employees back to
work. On October 6, Respondent sent the following
letter (R. Exh. 7) to all its employees with the exception
of Sanchez:
Please be advised that your are engaged in an un-
lawful work stoppage-A WILDCAT STRIKE-
which is a ground for DISCHARGE.
Unless you terminate you strike and return to work
at 8 AM on Friday, October 9, 1981, you may con-
sider yourself discharged at 8:01 AM on Friday,
October 9, 1981.23
Sanchez credibly testified that he was shown the letter
by employees either on October 8, or before 8 a.m. on
October 9, and that he advised the employees to go back
to work. When he was asked on cross-examination
whether he attempted to go back in, he readily admitted
that he had not because he did not receive the letter.
While several employees returned to work on October 9,
many did not, and from that point on, Respondent only
permitted those employees to return to work whom it se-
lected and not all who wished to return.24
Analysis and Conclusions
From the uncontroverted background record estab-
lished by the General Counsel, it is quite evident to me
that Local 202 was lax in properly representing Re-
spondent's employees. Such laxity afforded Respondent
great latitude in the operation of its business, to say noth-
ing of the monetary gain it derived therefrom. And, it
was against this background that Sanchez was chosen to
be shop steward. Immediately on taking office, Sanchez
embarked on a campaign to attempt to properly enforce
the collective-bargaining agreements and to correct the
alleged inequities foisted on the employees by Respond-
ent in the absence of proper representation by Local 202.
However, the evidence is clear that Respondent sought
to thwart his efforts from the start. On the very day that
Sanchez was chosen shop steward of both units, July 1,
22 Several employees, including Elva and Santia Rodriguez, testified
that they walked out on October 5 to protest Respondent's treatment of
Sanchez.
23 The parties stipulated that Respondent mailed the letter to about 50
employees.
24 According to par. 17 of the consolidated complaint in Cases 2-CA-
18361 and 2-CA-18370, of the 23 employees discharged as of October 9.
8 employees were reinstated sometime between October 13 and 19. At
the hearing on March 2, 1982, Respondent stated that it was offering un-
conditional reinstatement to 13 of the remaining 15 employees as of
March 15, 1982, excluding only Santia Rodriguez and Elva Rodriguez.
Sanchez was never offered reinstatement and, according to Abe Solo-
mon's testimony, there has been no shop steward for either unit since
Sanchez was terminated.
Respondent refused to recognize him as steward of the
floorworkers, claiming that, as a driver, he was on the
road a substantial portion of the working day and there-
fore could not properly represent the floorworkers. The
fact that the two units of employees were always repre-
sented by one shop steward throughout Respondent's
collective-bargaining history, and that no shop steward
has replaced Sanchez, belies the Respondent's argument.
As the Board stated in Bates Bros, 135 NLRB 1295, 1297
(1962):
It is well established that, in the absence of special
circumstances, an employer does not have a right of
choice either affirmative or negative as to who is to
represent employees for any of the purposes of col-
lective bargaining.
And, since this case shows no "special circumstances"
within the meaning of Board law, such action by Re-
spondent indicates a desire by it to frustrate the statutory
provision which prohibits an employer from choosing or
interfering with the employees' choice of representative.
On the very next day, Respondent resorted to acts of
interrogation and threats regarding union activities
which manifested themselves in conversations between
Sanchez and Abe Solomon. In each instance, I credit
Sanchez who appeared to testify in a straightforward and
logical manner. Solomon, on the other hand, was evasive
in his responses. And as the days and weeks passed
through the rest of July, and into August and September,
and Sanchez was actively engaged in filing many griev-
ances, Respondent resorted to other methods of intimida-
tion. This took the form of refusing to advance toll
money to Sanchez as had been Respondent's prior
policy, of warning him about talking to employees about
union activities, and, by sending letters to Local 202
complaining about Sanchez' work performance.
The ultimate act of retribution, prior to September 25,
was the placing of Sanchez on the night shift and requir-
ing that he work Sunday also. Respondent contends that
Sanchez had a poor performance record and had to be
shifted on several occasions during his employment; that
placing him on the night shift gave Respondent an op-
portunity to observe his work; and that Respondent
needed a man of Sanchez' intelligence to do that job. As
stated above at footnote 13, 1 find insufficient evidence
to sustain Respondent's contention as to Sanchez' work
performance, and while I agree with Respondent that it
wished to keep him under observation, I find that it was
not to see that he performs his work properly, but to
scrutinize his union activities and that, because of the
latter, Sanchez was subjected to more onerous tasks in
violation of the Act.
All of this culminated in the September 25 event.
From the uncontroverted evidence presented, I conclude
that the indefinite suspension meted out to Sanchez on
September 25 was tantamount to discharge and that, al-
though Respondent on October 2 changed the indefinite
suspension into a 2-week suspension, that was never
communicated to Sanchez or to any employee by either
Respondent or Local 202. Therefore, when the employ-
ees met on October 3, it was their belief that Sanchez
456
GOODIE BRAND PACKING CORP.
had been discharged, and the resulting action engaged in
by the employees on October 5 and thereafter was in
protest of the discharge. I do not accept Respondent's
contention that the October strike was called primarily
to embarrass Local 202 and to strengthen TDU, and that
the reinstatement of Sanchez was merely a secondary
motive. While it may be true that TDU had its own ax
to grind, the evidence does not sustain the contention.
Rather, the testimony of several employees explicitly
stated that it was the reinstatement of Sanchez that was
desired. Never before did the employees have such a
stalwart cohort to rally around in their demands of man-
agement and they were not about to lose him. This itself
brings me to the conclusion that Respondent's precipi-
tous action of discharging Sanchez on September 25,
albeit later softened to a 2-week suspension, was the
direct result of Sanchez' union activities and therefore
constituted an unfair labor practice in violation of Sec-
tion 8(a)(3) of the Act.
The next issue to be dealt with is whether the no-strike
clause contained in both collective-bargaining agree-
ments precluded the employees herein from protesting
Respondent's discharge of Sanchez by striking on Octo-
ber 5.
In Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956),
the Supreme Court refused to imply a waiver of the
right to strike against the unfair labor practices there in-
volved from a no-strike clause contained in a collective-
bargaining agreement. In Arlan's Department Store, 133
NLRB 802 (1961), the Board rejected a broad reading of
the Court's decision which would have excluded all
unfair labor practice strikes from the operation of no-
strike clauses and concluded that "only strikes in protest
against serious unfair labor practices should be held
immune from general no-strike clauses." The test to be
applied in determining seriousness was experience, good
sense, and good judgment.
Viewing the facts in the instant case, I conclude that
Respondent engaged in a serious unfair labor practice
when it discharged Sanchez on September 25. As stated
above, Local 202 exhibited hardly any interest in the
welfare of Respondent's employees and, with Sanchez
removed, the employees were left with virtually no rep-
resentation. Inasmuch as I have previously stated that
Respondent's discharge of Sanchez constituted a viola-
tion of the Act, I conclude that its attempt to deprive its
employees of proper representation constituted a serious
unfair labor practice within the meaning of that term as
used in Arlan's, supra. Accordingly, I find the no-strike
clause in the collective-bargaining agreements not appli-
cable in the instant case, that the strike was caused by
Respondent's unlawful action in discharging Sanchez,
and I also find that the employees engaged in the strike
were engaged in a protected concerted activity. There-
fore, the discharges meted out pursuant to Respondent's
letter of October 6 were all in violation of Section
8(a)(1) and (3) of the Act.2 5
25 Respondent contends in the brief that its letter of October 6 was a
letter of reinstatement. I reject that contention; rather. it had the effect of
discharging the strikers. 'ALRB v. International Van Lines, 409 U.S. 48
(1972).
Having found that Respondent had unlawfully dis-
charged certain employees who were engaged in a
lawful strike, I shall order Respondent to reinstate the
employees despite the fact that the employees may not
have requested reinstatement.2 6
Although I have found Respondent in violation of
Section 8(a)(1) and (3) of the Act, I do not find an
8(a)(4) violation as alleged. No evidence was presented
by the General Counsel to sustain the 8(a)(4) allegation,
except perhaps the inference to be drawn from the prox-
imity of the events. However, it is my conclusion that
Respondent's discriminatory conduct toward Sanchez
began on July I and was a continuing process until his
discharge on September 25. All that transpired in be-
tween was not the result of the filing of the second,
third, or fourth charges, but was an ongoing effort by
Respondent to subdue Sanchez. Inasmuch as the General
Counsel has failed to link specifically the actions of Re-
spondent to the filing of charges by Sanchez, I shall dis-
miss those allegations relating to an 8(a)(4) violation.
CONCLUSIONS OF LAW
1. Goodie Brand Packing Corp. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 202, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Roberto Sanchez on September 25,
1981, because as shop steward he engaged in protected
concerted activities for the purpose of collective bargain-
ing, Respondent engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(3) and
(1) of the Act.
4. The strike which began on October 5, 1981, was a
protected unfair labor practice strike that had been
caused by Respondent's above-described unlawful con-
duct.
5. By discharging and refusing to reinstate the follow-
ing employees who were engaged in the strike:
Jose Rodriquez
Ana La Roche
Santia Rodriguez
Elva Rodriguez
Maria Luisa Rentas
Isabel Bank
Nancy Santana
Mariliez Torrez
Rafael Larracuente
Jose Suarez
Andres Tejada
Juanita Sedano
Natalio Santiago
Victor Negron
Raul Robles
Respondent violated Section 8(aX3) and (1) of the Act. 27
6. By threatening, warning, and interrogating Sanchez,
and by assigning him more onerous working conditions,
all because of his protected concerted activities, Re-
spondent thereby restrained and coerced employees in
the exercise of their Section 7 rights and violated Section
8(a)(1) of the Act.
26 Abilities & Goodwill. 241 NLRB 27 (1979).
27 See fn. 24, supra
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Respondent did not engage in any other unfair labor
practices as alleged.
REMEDY
As Respondent has been found to have engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
Respondent having discharged Roberto Sanchez in
violation of his Section 7 rights, I find it necessary to
order Respondnt to offer him immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with
backpay computed as prescribed F. W Woolworth Co., 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corp.,
231 NLRB 651 (1977).
As the strike herein has been found to be an unfair
labor practice strike and, as Respondent, on October 9,
1981, discriminatorily terminated the employees named
above in paragraph 5 of the section entitled "Conclusions
of Law" who engaged in the strike, I shall order Re-
spondent to offer the employees immediate and full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions, and
make each of them whole for any loss of earnings he or
she may have suffered by reason of Respondent's unlaw-
ful discrimination against him or her on the same basis as
stated in the previous paragraph.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended2 8
ORDER
The Respondent, Goodie Brand Packing Corp., Bronx,
New York, its officers, agents, successors, and assigns,
shall
I. Cease and desist from
(a) Discharging or otherwise discriminating against
any of its employees because of their status as officials of
Local 202, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization.
(b) Discharging or otherwise discriminating against
any of its employees because of their participation in
protected strike activities.
(c) Warning and threatening employees with discharge
for engaging in protected concerted activities.
28 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 pur-
poses.
(d) Coercively interrogating employees concerning
their union sentiments and activities.
(e) Assigning more onerous working conditions to em-
ployees because they engaged in protected concerted ac-
tivities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Roberto Sanchez, Jose Rodriguez, Ana La
Roche, Santia Rodriguez, Elva Rodriguez, Maria Luisa
Rentas, Isabel Bank, Nancy Santana, Mariliez Torrez,
Rafael Larracuente, Jose Suarez, Andres Tejada, Juanita
Sedano, Natalio Santiago, Victor Negron, and Raul
Robles immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, and make them whole for their lost
earnings in the manner set forth above in the section en-
titled "Remedy."
(b) Expunge from its files any reference to the dis-
charges of the employees named above in (a), and notify
each of the discriminatees in writing that this has been
done and that evidence of these unlawful discharges will
not be used as a basis for future personnel actions against
them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its New York, New York place of business
copies of the attached notice marked "Appendix." 2 9
Copies of said notice, on forms provided by the Regional
Director for Region 2, after being signed by Respond-
ent's authorized representative, shall be posted by Re-
spondent immediately upon receipt 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 Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 2 within
20 days from the date of this Order what steps have been
taken to comply.
IT IS FURTHER ORDERED that the complaints be dis-
missed insofar as they allege violations of the Act not
specifically found.
a21 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 Na-
tional labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al I abor Relations Board."
458