Las Villas Produce, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1984

272 N.L.R.B. 915 (N.L.R.B. 1984)

Jose A. Garcia 13,607.07
Alvaro Garza 35,668.23
Gilberto Gomez 2,171.59
Rafael Maldonado 69,496.81
Carmelo Marquez 34,088 09
Luis Rios 48,795 37
Ramon Rivera 18,327.84
Eulogio Rocha 22,153.56
Jacinto Roman 77,408.37
Alberto Diaz 735.61
Antonio Fernandez 27,468.58
Jose R. Medina 35,137.94
Ramon Padilla 4,430.64
Marion Portillo 452.50
Rafael Reyes 18,917.49
Edwin Rodriguez 7,411.04
Efrain Roldan 55,821.99
Caledomo Santiago 12,736.71
Ismael Vasquez 46,128.16
Miguel Velasquez 9,582.65
Wilfredo V elasquez 7,636.16
Carlos Velez 3,560.31
Gustavo Chavez 17,034.40
Antonio Diaz 2,305.74
Gregono Diaz 1,785.95
Ramon Fiallo 1,989 70
Antonio Lozada 22,053.32
Rafael Rivera 23,762.12
Juan A. Lozada 12,052.96
Felix Maysonet 10,463 80
Jorge Razo 256.86
Uriel Cintron 13,808.88
Herman Correa 785.68
Louis Maldonado 8,051.78
Health and Welfare Fund Payments and Pension
Fund Payments
Health
and
Welfare
Fund
Payments
Pension
Fund
Payments
Louis Maldonado $ 294 $ 301
Gustavo Chavez 924 946
Antonio Diaz 84 86
Antonio Lozada 2,184 2,236
Juan A Lozada 588 602
Felix Maysonet 553 567
Antonio Fernandez 1,442 1,478
Jose R Medina 2,665 2,730
Ramon Padilla 74 76
Rafael Reyes 874 896
Edwin Rodriguez 259 266
Efrain Roldan 3,141 3,219
Caledorno Santiago 481 494
Ismael Vasquez 3,775 3,870
Miguel A Velasquez 444 456
Wilfredo Velasquez 296 304
Francisco Cruz 32 33
Jose A Garcia 596 614
Alvaro Garza 2,086 2,139
Unel Cintron 751 774
LAS VILLAS PRODUCE 915
Las Villas Produce, Inc. and Produce, Fresh &
Frozen Fruits & Vegetables, Fish, Butter, Eggs,
Cheese, Poultry, Florists, Nursery, Landscape
and Allied Employees, Drivers, Chauffeurs,
Warehousemen and Helpers Union, Chicago and
Vicinity, Local 703, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 13-CA-19903
23 October 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 27 July 1984 Administrative Law Judge
Bruce C. Nasdor issued the attached supplemental
decision. The General Counsel and the Respondent
filed exceptions and supporting briefs, and the Gen-
eral Counsel filed an answering brief to the Re-
spondent's exceptions.
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 recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Las Villas
Produce, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall pay to its unit em-
ployees the amounts of net backpay, health and
welfare fund, and pension fund payments specified
in the appendix to this Supplemental Decision and
Order, with interest on the net backpay as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977),
and interest on the health and welfare and pension
fund payments according to Mertyweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979).
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings
APPENDIX
Net Backpay Payments
Francisco Cruz $ 2,904.54
272 NLRB No. 142
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Health and Welfare Fund Payments and Pension
Fund Payments—Continued
Health
and
Welfare
Fund
Payments
Pension
Fund
Payments
Gilberto Gomez 96 99
Rafael Maldonado 4 595 4 715
Carmelo Marquez 2 041 2 099
Luis Rios 2 564 2 636
Rafael Rivera 1 227 1 263
Ramon Rivera 781 804
Eulogio Rocha 1 190 1 225
Jacinto Roman 4 402 4 518
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BRUCE C NASDOR Administrative Law Judge This
case was tried at Chicago Illinois on October 11 12
and 13 1983
On March 31 1982 an administrative law judge issued
his decision in this proceeding finding that Respondent
had violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act) by abrogating its collec
tive bargaining agreement with the Union
On May 4 1982 the National Labor Relations Board
adopted the judge s findings and ordered Respondent to
make whole all unit employees for any losses suffered as
a result of Respondent s failure to recognize and abide
by the terms of the collective bargaining agreement
Thereafter on December 2 1982 the United States
Court of Appeals for the Seventh Circuit enforced the
Board s Order in full
On February 28 1983 the Regional Director for
Region 13 issued a backpay specification and notice of
hearing setting forth the computations of gross and net
backpay and the benefit fund payments due to the Union
on behalf of the bargaining unit employees Respondent
filed its answer to the backpay specification and two
amendments thereto on March 16 29 and 30 1983
The supplemental hearing was intended to resolve the
backpay due unit employees pursuant to the 1979-1982
contract between the Market Services Association and
the Union and the benefit fund payments required under
the Market Agreement The backpay period is from No
vember 9 1979 through March 31 1982 the date that
the Market Agreement expired
On the entire record 1 including my observation of the
demeanor of the witnesses and after due consideration of
the briefs I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Counsel for the General Counsel concedes that only
two classifications of employees were employed by Re
spondent in the bargaining unit during the backpay
period—drivers and helpers The specification alleges
that Respondent employed at various times during the
backpay period 28 helpers and 7 drivers who are entitled
to backpay Paragraph III of the specification enumerates
these unit employees At the hearing Respondent ad
duced evidence that Calendonio Santiago was a cook
and that Antonio Diaz Gregono Diaz and Louis Mal
donado were janitors Thus Respondent avers that they
are not entitled to backpay because they were neither
helpers nor drivers and therefore not in the bargaining
unit Respondent contends that for a substantial portion
of their workday drivers help load their trucks a func
tion normally performed by helpers Therefore Re
spondent contends that the drivers should be compensat
ed at the helper s rate during the periods when they
were not actually driving Moreover Respondent con
tended that since Gilberto Gomez was employed as a
helper rather than as a driver his backpay should be cal
culated at the lower helper rate
Respondent does not dispute the computation of the
number of regular hours (40) worked by its employees
or of the benefit payments owing on their behalf con
tamed in the amended backpay specification However
Respondent denies that employees worked an average of
15 hours of overtime per week Monday through Friday
and takes the position that employees rarely if ever
worked overtime It also denied that employees worked
an average of 8 hours on Saturdays during the backpay
period Rather Respondent contends that the only em
ployees who ever worked on a Saturday during the
backpay period were Alvaro Garza Jacinto Roman
Ismael Vasquez Antonio Diaz Bregano Diaz Antonio
Lozado and Herman Correa The gross pay computa
tions as set forth in the backpay specification are based
on a formula providing that during the backpay period
employees worked an average of 55 hours per week
from Monday through Friday 8 hours Saturday and 8
hours on each of the 9 holidays set forth in the Market
Agreement Respondent stipulated that all unit employ
ees worked on Washington s Birthday Veteran s Day
and their birthdays t e three of the nine contractual
holidays Respondent denied that employees except for
certain unusual exceptions worked on any of the remain
ing contractual holidays Respondent admitted that Ja
cinto Roman and Ismael Vasquez worked on Thanksgiv
ing 1981 and that Juan Lozado worked on Memorial
Day 1981
The parties are in agreement that there are no issues to
be resolved with respect to offsetting amounts to gross
backpay
The parties stipulated to the amounts owed by Re
spondent to the health and welfare fund and to the pen
mon fund 2 The unit determinations made with respect to
the employees Respondent contends are janitors and a
cook will affect whether payments should be made to
the benefit funds on their behalf
Board Agent Craig Wilson who has been engaged in
compliance work for 3 1/2 years testified with respect
1 Counsel for the General Counsel s unopposed motion to correct the
transcript is granted 2 See G C Exh 2 in this regard
LAS VILLAS PRODUCE 917
to the preparation of the backpay specification and the
gross backpay formula He commenced his compliance
investigation by reviewing Respondent's payroll records
with Respondent President Camelo Caldero and his wife
Ada, who maintains the payroll records and prepares the
payroll
Respondent made records available for the period No-
vember 1979 through November 1981 They reflected
that employees were paid a weekly salary, but did not
indicate the number of hours worked by employees on
any given day or week. William Hamilton of the Illinois
Department of Labor was called by the General Counsel
to testify regarding his investigation of Respondent's fail-
ure to comply with the State's labor laws concerning
overtime. His investigation was conducted from Septem-
ber 2 through November 16, 1981, and covered the
period June 1, 1979, through September 2, 1981. From
his investigation of Respondent's records he concluded
that Respondent did not keep accurate records (see G C.
Exh. 9 and 10) and he could not "decipher Respondent's
records with any certainty." Respondent paid its employ-
ees a fixed salary for fluctuating hours. Respondent in a
letter dated December 21, 1981, and signed by Respond-
ent President Caldero admitted that it did not keep
records of hours worked by the employees.3
Because Respondent's records were totally unreliable,
the gross backpay formula was determined from employ-
ee interviews, data gathered by the Illinois Department
of Labor, and interviews with Respondent's representa-
tives.
Many employees testified that they worked on the av-
erage of 11 hours per day, Monday through Friday, or
55 hours per week.
Respondent President Caldero testified in an effort to
support the proposition that employees did not work an
average of 15 hours' overtime per week. Accordingly, he
testified that throughout the backpay period he closed
the warehouse at 3:30 p m. and employees did not work
more than 8 hours per day with staggered starting and
stopping times Illinois Department of Labor Compliance
Officer Hamilton's memorandum (G.C. Exh. 10) reflects
that Caldero admitted to him that some employees were
scheduled to work more than 40 hours per week. Cal-
dero admitted in his testimony that he did not know
what time the drivers finished making their deliveries, or
how many hours they worked, because of the fact that
they frequently took their trucks home with them at the
end of the workday. Caldero testified, and documenta-
tion reflected, that employees started work at 6 a.m. and
punched out after 3:30 p.m.
Respondent installed a timeclock at its premises in No-
vember 1981 Although in its brief counsel for Respond-
ent makes reference to the cavalier attitude displayed by
the employees toward the timecards, the evidence dem-
onstrates an equally cavalier attitude by Respondent.
Respondent contends that the demands in the backpay
specification for payments to certain members in the bar-
gaining unit for overtime work during the normal work-
week, and on Saturdays and certain holidays, should be
rejected because these individuals did not testify. The
See 0 C Exh 18
General Counsel points out that, in computing the over-
time hours worked, an average number was developed
for the gross backpay formula. For example, if an em-
ployee worked 1-1/2 hours per week during lunch break
during the latter 4 months of the backpay period, this
would be insufficient to reduce the average number of
overtime hours worked over the entire backpay period.
Moreover, as to seven employees who were employees
after the installation of the timeclock but did not testify,
Maldonado was employed as a driver and Maysonet's
testimony and the testimony of Caldero reflect that driv-
ers generally worked more than 55 hours per week. Nev-
ertheless, Maldonado's backpay was computed according
to the general formula. Furthermore, Antonio Diaz was
credited with 2.5 hours of overtime for the 5 weeks he
worked in the fourth quarter 1982. Gregono Diaz was
credited with only 4.75 hours of overtime for the 3
weeks he worked in the fourth quarter 1981, and no
overtime hours for the 2 weeks he worked in the first
quarter 1982 There are but two examples and, interest-
ingly, in its answer Respondent attributes more overtime
to these and other individuals than the General Counsel
is alleging.
Respondent proposes that any formula should take into
account a lunch period of one-half hour. The preponder-
ance of the evidence reveals that, for the first 2 years of
the backpay period, employees ate lunch at the work-
place while working, and received no formal lunchbreak.
The employees who worked after the installation of the
timeclock testified that after November 1981, the date
the clock was installed, they were given one-half hour
for lunch.
Pursuant to the gross backpay formula employees are
alleged to have worked an average of 8 hours on Satur-
days throughout the backpay period. Saturday and holi-
day hours are paid double the hourly rate. Several em-
ployees testified that they worked an average of 8 hours
every Saturday at least until the installation of the time-
clock. One employee, Ismael Vasquez, testified he
worked only 2 or 3 hours on Saturday before the instal-
lation of the timeclock. The agreement requires that em-
ployees called in to work on Saturdays must be paid a
minimum of 4 hours of double time. The General Coun-
sel recognizes that the backpay specification alleges that
Vasquez worked only 6 hours on Saturdays and does not
therefore oppose the reduction in his backpay award in
the amount of $3,045 75.
The substance of Caldero's testimony of cross-exami-
nation is that throughout the backpay period employees
worked on Saturdays, basically performing the same
work they performed during the week. He also admitted,
finally, that more than two or three employees worked
on Saturdays before and after the installation of the time-
clock. Respondent takes the position that the Saturday
crew fluctuated and the most equitable formula would be
to credit employees, not including the drivers, with 8
hours of overtime worked every other Saturday.
Employee witnesses testified generally that they
worked an average of 8 hours on the six holidays set
forth in the contract which are not covered by the stipu-
lation. Jacinto Roman testified that he was told to stay
918 DECISIONS Ov NATIONAL LABOR RELATIONS BOARD
home once because it was a holiday on the Fourth of
July 1981 Joses Medina testified that he worked all the
contractual holidays and was told to stay home only
once Christmas 1981 Therefore the General Counsel
would reduce the backpay of each of these individuals
$174 56
Caldero testified that he was closed on approximately
12 holidays each year although the agreement designates
only six holidays in addition to the three that Respond
ent stipulated it remained opened He 'further testified
that during the backday period only once did an employ
ee work at his request He did admit later on cross exam
mation that on Thankgiving 1981 at least two employees
worked Moreover he explained that his wife was re
sponsible for the work schedules of the employees from
mid September to mid December 1981 because he was
in Puerto Rico during that period It is noted that the Ii
linois Department of Labor investigation took place
during this same penod and documentary evidence re
flects that Caldero was at work and not in Puerto Rico
during November 1981 (See eg GC Exh 11) Re
spondent was unable to produce payroll records for the
period after November 1981 or offer any documentary
evidence or witnesses to buttress Caldero s testimony
with respect to holidays
Conclusion and Analysis
Respondent was unable to provide reliable records re
fleeting hours worked by employees or to detail specific
days worked Therefore the gross backpay formula
evolved from employee and Respondent interviews and
evidence provided by the Illinois Department of Labor
including record testimony
Employees testified in a manner that did not limit their
responses to only personal or individual work habits and
practices Rather they presented an overview relating to
the employee complement as an entity Thus it was un
necessary to present each and every employee and
therefore Respondent s reliance on a case arising under
the Fair Labor Standards Acts Wirtz v Minton Render
mg Co 54 LC Tf 31 876 (N D Tex 1966) is inapplica
ble
Accordingly in my opinion the gross backpay formu
la as set forth in the backpay specification is appropnate
and legally sound
The employees who testified with respect to their
overtime hours worked Monday through Friday are
credible They impressed me as being honest and forth
right By contrast the testimony of Caldero was uncon
vincing and implausible I do not accord it any weight in
fixing the average number of hours employees worked
The weight of the evidence reflects that employees ate
lunch at their work stations while working and did not
receive a lunch period at least for the first 2 years of the
backpay period After the timeclock was installed No
vember 1981 they were given a one half hour lunch
break
Vasquez the only employee still employed by Re
spondent was a witness whose credibility was highly
suspect It was apparent to me that there was a false
coloring to this testimony and an effort to distort the
truth to favor his employer I deem him an incredible
witness
Prominent is the testimony of the Department of
Labor representative Hamilton that during the course
of his investigation Caldero admitted that employees
were required to work more than 40 hours per week
The preponderance of the evidence discloses that em
ployees averaged 8 hours on Saturday before and after
the inception of the timeclock
Respondent admitted in its answer that Herman
Correa Antonio Diaz and Gregono Diaz worked Satur
day hours Accordingly they are entitled to additional
compensation as follows
Herman Correa—$329 12 for a total of $805 68
Antonio Diaz—$256 39 additional
Gregono Diaz—$147 29 additional
All other employees alleged are entitled to Saturday
overtime as Respondent has presented no evidence doe
umentary or otherwise to refute the General Counsel s
record proof
Jose Medina s and Jacinto Roman s net backpay
should be reduced $174 56 for each of them since they
acknowledged not working on a holiday 4
Based on the totality of the evidence I conclude that
the employees worked on the holidays alleged in the
backpay specification
Wilson the Board agent who conducted compliance
explained why he concluded that Gilberto Gomez was a
driver Respondent normally employed two or three
dnvers Wilson by utilizing Respondent s weekly payroll
summary sheets and subtracting the salaries of the admit
ted drivers from the total dnver payroll the remainder
matched the salary listed solely for Gomez Respondent s
only classifications of employees were drivers and help
ers and again Respondent had no records relating to the
classification of Gomez
Accordingly I find and conclude that Gomez was em
ployed as a driver
Respondent contended that Santiago was a cook and
Maldonado Antonio Diaz and Gregono Diaz were
maintenance employees
Stroud the Charging Union s business agent and trust
ee testified that employees employed by Respondent
and other produce concerns covered by the same agree
ment regularly performed cleaning tasks such as sweep
ing and picking up broken crates and produce as well as
hosing down the warehouse areas and the docks More
over there are employees employed by employers under
the agreement who performed only janitorial work and
all the employees who handled produce in the course of
their work were covered by the agreement Employees
testified that they had observed Maldonado working on
the floor as a helper loading trucks in addition to per
forming some cleaning duties Caldero admitted that unit
employees performed cleaning work while employed by
Respondent Accordingly I conclude that these three
employees were helpers and are included in the appro
pnate bargaining unit
4 Medina Christmas 1981 and Roman July 4 1981
LAS VILLAS PRODUCE 919
Respondent, by Caldero, would have me believe that
Santiago was employed for the sole purpose of cooking
lunch for employees. There is an abundance of testimony
that employees who worked during the time Santiago
worked made no reference to Santiago cooking lunch or
Respondent providing free hot lunches for employees.
Rather, employees testified that they brought their lunch
or bought sandwiches from a vendor in a truck. I do not
believe that Respondent provided this incredible fringe
benefit. Accordingly, I find that Santiago should be in-
cluded in the appropriate unit.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
5 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
ORDER
The Respondent, Las Villas Produce, Inc., Chicago,
Illinois, its officers, agents, successors, and assigns, shall
pay the following.
I have determined that the gross backpay formula as
set forth in the backpay specification is appropriate. I
therefore conclude that Respondent owes the unit em-
ployees backpay as alleged in the specification as modi-
fied, and owes the benefit funds the payments stipulated
to by the parties Moreover, in addition to these
amounts, Respondent shall pay interest thereon to be
computed in the manner prescribed in E W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).6
Board and all objections to them shall be deemed waived for all pur-
poses
6 See generally Isis Plumbing Co, 138 NLRB 716 (1962)