Goodie Brand Packing Corp.

National Labor Relations Board - Board Decisions

Apr 20, 1987

283 N.L.R.B. 673 (N.L.R.B. 1987)

GOODIE BRAND PACKING CORP. 673
Goodie Brand Packing Corp . and Roberto Sanchez
and Elva Rodriguez. Cases 2-CA-18205,, 2-
CA-18299, 2-CA-18361, and 2-CA-18370
20 April 1987
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 April 1984 the National Labor Relations
Board issued a Decision and Order in this proceed-
ing' in which the Board adopted the finding of the
administrative law judge that the Respondent' vio-
lated Section 8(a)(1) of the Act by certain of its
statements to and conduct toward Union Steward
Roberto Sanchez. The Board further found, in dis-
agreement with the judge, that the Respondent did
not violate Section 8(a)(3) of the Act by discharg-
ing Sanchez, that the strike in protest of Sanchez'
'discharge was not a protected unfair labor practice
strike, and that the discharges of the strikers and
refusal to reinstate them were not in violation ' of
Section 8(a)(3). Subsequently, the Charging Parties
petitioned the United States Court of Appeals for
the Second Circuit to review and set aside the
Board's Order. On 11 March 1986 the court of ap-
peals issued its decision granting the petition for
review, modifying the Board's Order to find that
the Respondent violated Section 8(a)(3) by dis-
charging Sanchez, and providing for the reinstate-
ment of Sanchez. The court remanded the case to
the Board for further proceedings with respect to
the 8(a)(3) claims of the striking employees.2
The Board accepted the court's remand and noti-
fied the parties that they could file statements of
position concerning the issues the remand raised.
The General Counsel, the Respondent, and the
Charging Parties filed statements of position.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board accepts,the court's opinion as the law
of the case. The Board has considered the record
as a whole in light of the court's decision and the
statements of position on remand and now makes
the following findings.
Both the Respondent's drivers and floorworkers
have been represented by Teamsters Local 202
since 1959 under separate collective-bargaining
agreements that provide for union stewards and ar-
bitration, and contain valid no-strike and union-se-
curity clauses. Many provisions of the agreements,
1 270 NLRB 451 (1984).
2 Roberto Sanchez & Elva Rodriguez Y. NLRB, 785 F.2d 409 (2d Cir.
1996).
283 NLRB No. 103
including the union-security clause, were not being
enforced when Roberto Sanchez became shop
steward in July 1980. The Respondent had a telling
history of hostility to union activities and of harass-
ment of stewards. After Sanchez became steward,
he was ,threatened and assigned more onerous
working conditions. Part-owner Abe Solomon
asked Sanchez why he was organizing the workers
and said that Solomon would fight Sanchez every
day. Sanchez was told to advance his own money
for tolls, contrary to prior company practice, and
he was assigned to the night shift contrary to se-
niority rules. The Respondent also sent letters to
the -Union complaining about Sanchez' work per-
formance. The Board found that the Respondent
violated Section 8(a)(1) of the Act by threatening,
warning, and interrogating Sanchez and assigning
him more onerous working conditions because of
his protected concerted activity.3 Despite this har-
assment, Sanchez filed over 45 grievances.
On 25 September 19814 Sanchez had an accident
in one of the Respondent's trucks, which was dam-
aged to the extent of $2300. After the incident Abe
Solomon told Sanchez he was being suspended and
sent him a copy of a letter to the Union indicating
Sanchez was being suspended indefinitely. 'Later,
on 2 October, Solomon told Union Agent Mogil-
nicki that the indefinite suspension would be for-2
weeks. Neither Solomon nor Mogilnicki told San-
chez or any of the employees that the indefinite
suspension had been converted to a 2-week suspen-
sion.
Believing he had been discharged, on 5 October
Sanchez and about 40 employees set up a picket
line outside the Respondent's plant to protest the
action taken against Sanchez. On 6 October the
Respondent sent a letter to all these employees
except Sanchez informing them that they Were en-
gaged in a wildcat strike and that they would be
discharged unless they returned to work on 9 Oc-
tober. Eventually, all striking employees were of-
fered unconditional reinstatement except Sanchez
and-former steward Elva Rodriguez and her sister.
As stated above, the court 'granted the petition
for review with respect to Sanchez"claim that the
Respondent discharged him in violation of Section
8(a)(3).5 Pursuant to, the court's remand, the single
3 270 NLRB 451 (1984)
4 All dates hereinafter are in 1981 unless otherwise specified.
5 The court found that the unlawful actions taken against Sanchez cul-
minated in his removal from the payroll on 25 September. The judge and
the Board agreed there was a puma facie case that the Respondent's
action was unlawfully motivated. The Board found, however, contrary to
the judge, that the Respondent had satisfied its burden under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F2d 899 (1st Cu, 1981), cert denied
455 U S. 989 (1982), of establishing that it would have taken the action
against Sanchez even in the absence of protected activity because of his
Continued
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issue before us is whether the striking employees
were discharged in violation of Section 8(a)(3). We
must first decide if the strike was prompted by the
unlawful action taken against Sanchez on 25 Sep-
tember. We find that it was.
All the employee witnesses testified that they de-
cided to strike in order to seek the reinstatement of
Sanchez, an active shop steward. The employees'
picket signs indicated they were ' striking because
they wanted their shop steward put back to work.
Since the court has found that Sanchez' discharge
violated Section 8(a)(3), we fmd that the strike in
protest thereof rendered the strikers unfair labor
practice strikers.
The remaining issue is whether the strikers were
engaged in protected concerted activity in spite of
the no-strike clause ' in the collective-bargaining
agreement.
In Mastro Plastics Corp. v. NLRB, 350 U.S. 270
(1956), the Supreme Court held that a no-strike
clause in a collective-bargaining agreement does
not waive the right to strike against an employer
for unfair' labor practices. In Arlan's Department
Store,' 133 NLRB 802 (1961 ), the Board limited this
rule to apply only in cases of serious unfair labor
practices. The Union herein made little or no effort
to , enforce the collective-bargaining agreement.
With Sanchez. gone the employees had "virtually
no representation," as the judge found . 270 NLRB
at,457. We find, in agreement with the judge, that
the Respondent's attempt to deprive its employees
of proper representation was a serious unfair labor
practice within the meaning of Arlan's. See also
Lustrelon,, Inc., 242 NLRB 561, 570-571 (1979).
Therefore, we fmd that the no-strike clause does
not apply, that the strike was protected, that the
Respondent's 6 October letter discharged the strik-
ers in violation of Section 8(a)(3) and (1), and that
they - are entitled to reinstatement and backpay in
accord with Abilities & Goodwill, 241 NLRB .27
(1979).6
driving mishap . The court rejected the Board's fording and concluded
that while the evidence suggests that Sanchez was merely suspended for
a week or two because of the driving mishap, it does not support a find-
ing that Sanchez was discharged for the incident. Under the court's anal-
ysis, the Respondent failed to sustain its Wright Line burden, leaving
intact the prima facie case of unlawful discipline of Sanchez for union
activity. While the court made no specific finding regarding the date of
Sanchez' discharge, the discharge must have commenced at the time of
Sanchez' 25 September removal from the payroll, as found by the judge
Our conclusion as to the date of discharge is supported by the court's
analysis recited above and its order that those portions of the judge's de-
cision -concerning the rehiring of Sanchez be reinstated . 785 F.2d 409,
415. This would- necessarily include the judge's conclusions on the dis-
charge date for the purpose of calculating Sanchez' backpay.-
6 Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27
(1979), and would - date the Respondent 's backpay obligation to the dis-
charged strikers from the time they made an unconditional offer to return
to work.
Inasmuch as the court has al-ready , reinstated the
portions of the judge 's recommended Order pro-
viding for the reinstatement of Sanchez , it is unnec-
essary to repeat them here .- Rather, we shall adopt
those parts of the judge's recommended Order
dealing with the reinstatement and backpay of the
discharged strikers.
ORDER
The National Labor Relations Board adopts the
pertinent portions of the recommended Order of
the administrative law, judge set forth below and
orders that the Respondent , Goodie Brand Packing
Corp., Bronx, New York, its officers, agents, suc-
cessors, and - assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating
against any of its employees because of their par-
ticipation in protected strike activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them' by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) To the extent it has not already done so, offer
Jose Rodriguez, Ana La Roche, Santia Rodriguez,
Elva Rodriguez, Maria Luisa Rentas, Isabel Bank,
Nancy Santana, Mariliez Torrez, Rafael Larra-
cuente, Jose Suarez, Andres Tejada, Juanita
Sedano, Natalio Santiago, Victor Negron, and Raul
Robles immediate and full reinstatement to their
former job or, if those jobs no longer,exist, to sub-
stantially equivalent -positions, and make them
whole for their lost earnings in the manner set
forth in - the remedy section of the administrative
law judge's decision.
(b) Remove from, its files any reference to the
discharges 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 copy-
ing, all payroll records, social security payment
records, timecards, personnel records and 'reports,
and all other - records necessary to analyze the
amount of backpay due under the. terms of this
Order.
(d) Post at its New York, New York place of
business, copies of the attached notice marked
"Appendix."7 Copies of the notice, on forms pro-
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 Nation-
Continued
GOODIE BRAND PACKING CORP. 675
vided by the Regional Director for Region 2, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
al 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."
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.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you who participate in protect-
ed strike 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.
WE WILL, to the extent we have not already
done so, offer 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 rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL remove from our files any reference to
the discharges of the employees named above, and
notify each of them in writing that this has been
done and that evidence of these unlawful dis-
charges will not be used as a basis for future per-
sonnel actions against them.
GOODIE BRAND PACKING CORP.