Watermelons Plus, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 8, 2006

29-CA-027150 (N.L.R.B. Feb. 8, 2006)

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Brooklyn, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

WATERMELONS PLUS, INC.

and Case No. 29-CA-27150

MICHAEL SPENCE, An Individual

WATERMELONS PLUS, INC.

and Case No. 29-CA-27152

DAVID PETERS, An Individual

James Kearns, Esq., Counsel for the
General Counsel

DECISION

Statement of the Case

Raymond P. Green, Administrative Law Judge. I heard this case in Brooklyn, New York
on January 24, 2006. The charge in 29-CA-27150 was filed by Michael Spence on August 29,
2005 and the charge in 29-CA-27152 was filed by David Peters on August 30, 2005. A
Consolidated Complaint was issued by the Regional Director on November 29, 2005. This
alleged:

1. That since in or about February 2005, Local 342 United Food and Commercial
Workers Union, has been engaged in organizing certain employees of the Employer.

2. That the Union filed a petition for an election on March 15, 2005 in Case No. 29-RC-
10339.

3. That on or about March 14 and 15, 2005, the Respondent, by Anthony Pagano, Jr.
interrogated employees about their union activities.

4. That on March 15, 2005, the Respondent, for discriminatory reasons, discharged
Michael Spence and David Peters.

Neither the Employer nor its counsel appeared at the hearing. Counsel for the General
Counsel stated on the record that he had received a phone call from Alfred DeMaria, the
Company’s attorney who stated that he would not appear at the hearing; albeit he was not
requesting a postponement. The General Counsel also stated that DeMaria told him that his
client would probably not appear at the hearing.

Based on the entire record, including my observations of the demeanor of the witnesses
and after considering the arguments of counsel, I hereby make the following

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Findings and Conclusions

I. Jurisdiction

The Complaint alleges and the Respondent’s Answer admits that the Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that Local 342 United Food and Commercial Workers Union, is a labor organization within the
meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

The Respondent is a New York corporation that is engaged in the non-retail sale and
distribution of fruits and vegetables. In 2004 it entered into a contract to provide foods to public
schools in the city of New York. It operates a warehouse type of facility with a large refrigerated
storage room. It employs about 70 workers.

The Company is an enterprise that is owned and managed by the Pagano family. There
is also an affiliated trucking company called Wings Trucking Inc., which is also owned by the
family and is a single employer with the Respondent. 1

According to the testimony of Spence and Peters, the son, Anthony Pagano Jr., is the
person who is in charge of the warehouse and who directs and gives orders to the warehouse
employees. The testimony shows that he is involved in the hiring of employees, the setting of
wage rates and wage increases and that he permits employees to take time off when requested.
In short, the uncontested evidence establishes that he is a supervisor and agent of the
Respondent within the meaning of Sections 2(11) and (13) of the Act.

The testimony shows that the Union began to organize the employees in or about late
February 2006 when its representatives started appearing outside the Company’s premises.
The testimony also showed that in the early part of March 2005, Anthony Pagano Jr., observed
employees talking to union representatives during the lunch break by stationing himself outside
the doors of the facility leading to a parking lot.

On or about March 1, 2005, the Respondent solicited its employees to sign a document
that read:

To whom it may concern:

As an employee of Wings Trucking, Inc., I do not wish to be represented nor do I
wish to join any labor union. I have consented to sign this statement voluntary (sic)
and I have not been compelled in any manner to agree and sign this statement to
avoid any repercussions. 2

Spence and Peters testified that on numerous occasions in March 2005, they were told
1 On September 9, 2005, the Respondents Watermelons Plus, Inc and Wings Trucking Inc., executed
a settlement agreement that was approved by the Regional Director on September 21, 2005. This
settlement was in relation to charges and a Consolidated Complaint that alleged among other things that
the two companies constituted a single employer and that they illegally discharged four other employees
on March 15 and 16, 2005.
2 In the previously settled case, this was alleged s an 8(a)(1) violation and it was remedied.

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by Anthony Pagano Jr. that they should not talk to the Union; that the Company could not afford
a union; and that any employees who joined the Union would be fired.

By March 15, 2005, the Union obtained sufficient authorization cards to file a petition for
an election. In this regard, the Union set up a meeting at a local diner for the early morning of
March 15, 2005 and filed its petition, in 29-RC-10339, on the same day. In turn, the petition was
faxed to the Employer by the Regional Office. The fax transmittal receipt shows that it was
received by the Respondent on March 15 at 1:46 p.m.

Spence testified that on March 15 when he arrived at work, Anthony Pagano Jr. asked
him how the union meeting went and he responded, “Fine.” (Spence and Peters did not actually
go to the Union meeting that day).

At about noon, Spence and Peters went out of the facility to have lunch. When they
returned, they finished up their day’s work. Sometime in the afternoon, and probably soon after
the Company received the NLRB petition, both were separately told by Anthony Pagano Jr. that
they were being let go. 3 The evidence was that these employees had never received any prior
disciplines or warnings and there is no evidence to suggest that there was any economic
downturn in the Company’s business. In short, there was no evidence to rebut the General
Counsel’s prima facie case under Wright Line, that these two individuals were discharged in
retaliation for the employees’ union activities, specifically triggered by the Company’s receipt of
the petition for an election filed with the NLRB.

Based on the above, I conclude that the Respondent violated Section 8(a)(1) & (3) of the
Act when it discharged employees Spence and Peters on March 15, 2005. I also conclude that
it violated Section 8(a)(1) of the Act when Anthony Pagano Jr. interrogated Spence about the
Union meeting that was held earlier in the morning.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the purposes of the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended: 4

ORDER

The Respondent, Watermelons Plus Inc., its officers, agents, successor, and assigns,
shall

1. Cease and Desist from

(a) Discharging employees because of their union membership, activities or support.
3 Spence testified that he was told that he was being laid off somewhere around 3 p.m. when he went
to tell Pagano that he finished with his tasks and was going home.
4 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 purposes.

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(b) Interrogating employees about their union membership or activity.

(c) In any like or related manner, interfering with, restraining or coercing employees in
the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Michael Spence and David Peters,
full reinstatement 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 make them whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section of this decision.

(b) Make whole, with interest, the employees named above for the loss of earnings they
suffered as a result of the discrimination against them in the manner set forth in the remedy
section of the decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful actions against the above named employees and within three days thereafter, notify
them in writing, that this has been done and that the discharges will not be used against them in
any way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(e) Within 14 days after service by the Region, post at its facilities in Brooklyn, New
York, copies of the attached notice marked “Appendix.” 5 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent 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 the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, or sold the business or the facilities involved
herein, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondents at any time since
March 15, 2005.

5 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C., February 8, 2006.

______________________
Raymond P. Green
Administrative Law Judge

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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 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 discharge or otherwise retaliate against our employees because of their union
membership or support.

WE WILL NOT interrogate employees about their union membership or activities.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the rights
guaranteed to them by Section 7 of the Act.

WE WILL offer Michael Spence and David Peters who have been found to have been illegally
discharged, immediate and full reinstatement 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 make them whole for any loss of earnings and other benefits suffered as a result
of the discrimination against them.

WE WILL make whole the employees named above for the loss of earnings they suffered as a result of
the discrimination against him.

WE WILL remove from our files any reference to the unlawful discharges that have been concluded to be
unlawful and notify the employees in writing that this has been done and that these actions will not be
used against them in any way.

Watermelons Plus, Inc.
(Employer)

Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
National Labor Relations Board, One MetroTech Center, Jay Street and Myrtle Avenue, Brooklyn, NY
11201-4201 718 330 2862. Hours: 9 a.m. to 5:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, 860-240-3528.

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