B.F.G. Gourmet Foods, Inc.

B.F.G. GOURMET FOODS, INC. B.F.G. Gourmet Foods, Inc. and Local 455, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Food Packers, Cannery and Miscellaneous Workers Union Local 220, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Party in Interest. Case 2-CA- 14909 May 26, 1978 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On February 27, 1978, Administrative Law Judge Phil W. Saunders issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answering brief to Respondent's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order, as modified herein.3 i The Respondent has excepted to certain credibility findings made by) the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolution with respect to credibility unless the clear preponderance of all of the relevant evidence consinces us that the resolutions are incorrect. Standard Drr Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951. We hae carefull, examined the record and find no basis for reversing his findings. The General Counsel argued that a violation of Sec 8(aX 2 ) of the Act should be found in Respondent's recognition of Local 220 at a time when there existed a conflicting claim to representation by Local 445, relying on Midwest Piping & Supply Co., Inc., 63 NLRB 1060 (1945). However. we find it unnecessary to determine the applicability of Midwest Piping to the cir- cumstances herein, inasmuch as we agree with the Administrative Law Judge that Respondent rendered illegal assistance here and, furthermore. the affirmative remedy for recognition of a union which does not represent an uncoerced majority of the employees is the same. regardless of whether there is a competing claim for representation. 2 Interest is to be computed in the manner prescribed in Florida Steil Corporation. 231 NLRB 651 (1977). See. generally, Isis Plumhing & Heating Co., 138 NLRB 716 (1962). ' The Administrative Law Judge inadvertently failed to include in his recommended Order the narrow cease-and-desist language which the Board traditionally provides in cases involving 8(aX1) and (2) violations. Accord- ingly, we shall modify his recommended Order to require the Respondent to cease and desist from in any like or related manner infringing upon emplos- ees' rights. Furthermore, the Administrative Law Judge inadvertently failed to conform the notice with the provision in his recommended Order that Respondent withdraw and withhold all recognition from ILocal 220 unless and until that labor organization has been certified by the Board as the exclusive representative of Respondent's employees. Accordingly. we shall correct the notice to conform to the recommended Order in both respects noted herein ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, B.F.G. Gourmet Foods, Inc., Stamford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified below: 1. Insert the following as paragraph l(e): "(e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or contribute support to Food Packers, Cannery and Miscellaneous Workers Union Local 220, affiliated with the Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO. WE WILL NOT recognize and negotiate with the above-named Union as the exclusive representa- tive of our employees for the purpose of collec- tive bargaining unless and until such labor orga- nization is certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT enforce or give effect to our col- lective-bargaining agreement with the above- named Union or to any extension, renewal, or modification thereof or to any superseding agreement; provided that WE WILL NOT alter any wage increases or any other benefits put into ef- fect as the result of those agreements. WE WILL NOT encourage membership in the above-named Union by requiring employees to join that organization as a condition of obtain- ing or retaining employment with us. WE WILL NOT recognize, negotiate, or enter into any new agreement with Local 220 unless and until that union has been certified as the representative of our employees. 236 NLRB No. 51 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE wi.i N01 in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL withdraw and withhold all recogni- tion from Food Packers, Cannery and Miscella- neous Workers Union Local 220, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the collective-bargaining representative of our em- ployees, unless and until said labor organization has been certified by the National Labor Rela- tions Board. WE WILL reimburse all employees, former and present, for any dues and other moneys unlaw- fully exacted from them under our contracts with Food Packers, Cannery and Miscellaneous Workers Union Local 220, affiliated with the Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, plus interest. B.FG GOURMEt FOODS. IN(' DECISION STATEMENT OF THE CASE PHIL W. SAUNDERS, Administrative Law Judge: Based on a charge filed on May 12, 1977, by the Charging Party, Local 445, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein Lo- cal 445,1 a complaint was issued on June 27, 1977. against B.F.G. Gourmet Foods, Inc., herein Respondent or B.F. G., alleging violations of Section 8(a)(1) and (2) of the Na- tional Labor Relations Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged matter. Respondent and the General Counsel filed briefs. Upon the entire record in the case, and from my obser- vations of the witnesses and their demeanor,2 I make the following: "The aforesaid charge was also served on Food Packers and Nilcella- neous Workers Union Local 220. affiliated with The Amalgamated Meat Cutters and Butcher Workmen of North Amenca, AFL-CIO. Party in Interest. herein called Local 220, on June 24. 1977. 2 The facts found herein are based on the record as a whole upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses. and the teaching of N L. R.B v. Walton Manufacturing Companr & Loganville Pants Co., 369 U.S. 404 (1962). As to those witnesses testifying in contradlction of the findings herein. their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief All testimony has been reviewed and weighed in light of the entire record. FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent is a corporation organized under the laws of the State of Connecticut, and at all times material herein has maintained an office and place of business in Stam- ford, Connecticut, where it has been engaged in the sale and distribution of wholesale foods, and related products from its warehouse. Respondent commenced operations of the warehouse on or about April 11, 1977. and since said date has purchased, and caused to be transported and de- livered to its warehouse, foods valued in excess of $50,000, and which were transported and delivered to its warehouse in interstate commerce directly from outside the State of Connecticut. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 11, THE LABOR ORGANIZATIONS INVOLVED Local 445, and Local 220, are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES The complaint in this matter alleges that Respondent recognized Local 220 at a time when this labor organiza- tion did not represent an uncoerced majority of employees in the unit and, further, that Respondent executed an agreement with Local 220 when there existed a competing claim by Local 445. It appears that K-M Grocery corporation, herein called K-M, located in Yonkers, New York, has recognized and bargained with Local 445 since 1969. Local 445 repre- sented its truckdrivers. mechanics, and warehouse employ- ees. The last collective-bargaining agreement between K- M and Local 445 was effective from July 1, 1974, to June 30, 1977. On April 8, 1977, K-M permanently laid off ap- proximately 31 warehousemen, truckdrivers, and mechan- ics and went out of business. The employees received their termination notices in their pay envelopes, but about the same time they were given employment applications to fill out for Respondent, a corporation operated by David Feinstein, a vice president of K-M. Feinstein had pur- chased inventory from K-M in order to start his business. It further appears that on April 8 and 9, 1977, the K-M unit employees also assisted in moving the purchased in- ventory of K-M to Respondent's warehouse located in Connecticut, and for such services they were paid in cash by Frank Becker, the president of K-M-Becker is Feinstein's brother-in-iaw, and Feinstein then reimbursed Becker for doing so. On Monday, April 11, 1977, approxi- mately 31 employees, K-M's prior work force, began work- ing for Respondent. On or about April 18, 1977, Local 220 obtained cards signed by B.F.G. employees authorizing Local 220 to represent B.F.G.'s employees and thereafter entered into an agreement with Respondent. Respondent admits their awareness that Local 220 was circulating cards among its employees, but contends there is no evidence that it solicited or encouraged Local 220's 490 B.F.G. GOURMET FOODS, INC. involvement, and much less that it "authorized and permit- ted" its solicitation of cards as alleged in paragraph 10(a) of the complaint.3 Counsel for Respondent further argues that B.F.G.'s em- ployees voluntarily signed the authorization cards of Local 220 because apparently they too had not been contacted by Local 445, and there was a rumor that Local 445 could not represent them. Moreover, Respondent also maintains that their purchase of K-M inventory and hiring of K-M em- ployees could not possibly constitute a successorship-that it was simply the beginning of B.F.G.'s operations and nothing more. Final Conclusions The labor relations doctrine of successorship is designed to insure that employee rights of representation by a recog- nized representative are not curtailed by a mere change of employers or ownership, if a majority of the employees after the change of ownership, were employed by the pre- ceding employer.4 In such cases, the succeeding employer must recognize and bargain with the incumbent union. Moreover, successorship does not require a transfer of as- sets, Burns, supra, but whether there are such transfers or not, if there is a change of ownership not affecting the essential nature of the enterprise, the successor employee must then recognize the incumbent union and deal with it as the bargaining representative. In the instance case, as pointed out, the approximate 30 employees hired from K-M constituted essentially all of Respondent's employees. The employees of Respondent are now doing the same work as they did at K-M; the products being distributed are the same; the customers are the same; most of the supervisors are the same; and the products are purchased from the same vendors. Therefore, Respondent is clearly a successor to K-M. Moreover, in the instant case, as in Burns, supra, there exists the requisite continuity in the work force, and the appropriateness of the bargaining unit. Furthermore, as also noted, there was no hiatus between the termination of the employees by K- M and the hiring of the same employees by Respondent. Respondent contends that it had not assisted Local 220 in securing their authorization cards, and that Respondent had no reason to believe that anyone other than Local 220 had a claim to represent its employees prior to its rightful recognition of Local 220 on April 18, 1977, and further argues that, on this date, Local 220 presented cards signed by a majority of B.F.G.'s employees to B.F.G.'s president David Feinstein, and not until May 5, 1975, did Local 445 send a letter demanding recognition to B.F.G.5 David Feinstein testified that he never approached L ocal 220 and did not initiate an' contacts with any union 4 V I..R B s. Burns International Securic Serices. Inc , 406 U.S. 272 (1972)1 United Maintenance d Manufacturing C,,, Inc, 214 NtLRB 529 (1974). 5 At the hearing there was some initial confusion as to whether or not the General Counsel was relying on Burns However. the complaint itself does not allege that at the time in question there existed a competing claim hs Local 445 and, going further. the General Counsel also shows that Local 220 did not represent an uncoerced majoriti at the time the Respondent execu- ted its contract with Local 220 Vanderbilt Harrisson testified for the General Counsel that right after the move with Respondent to Connecticut. a delegate with Local 220, Harold Wilkerson, appeared at the warehouse with Becker and Feinstein, and also with Respondent's supervisors George Haas and Marty Stein- feld. On this occasion, Wilkerson told the employees at a meeting that he was present to represent them, and Becker then also spoke and informed employees that "this is a brand new ball game and this is what it is going to be that's it." Employee Neal McKeithen stated that on one occa- sion, when he started working for Respondent, he was told by Becker and Haas to sign "a card." McKeithen had been a member of Local 445 but, following the above incident, he then signed a card for Local 220. Clarence Blount testi- fied that within a day or so after the move to Connecticut with Respondent, he observed the presence of two dele- gates with Local 220 in the warehouse, and at about the same time Respondent's foreman George Haas asked him if he had seen "the man" about filling out his "application." From the above credited testimony it is obvious that in the days following April 11. 1977, Becker, Feinstein, and George Haas, a supervisor of Respondent, urged, solicited, and assisted employees to sign up for Local 220; and hav- ing assisted Local 220 in obtaining their cards, Respondent then executed a memorandum of agreement with Local 220 in which Respondent recognized Local 220 as the ex- clusive collective-bargaining representative of its employ- ees. On May 5, 1977, when Local 445 made a bargaining demand on Respondent, their counsel then informed them that Local 220 had been recognized. As aforementioned, Respondent contended that it had not assisted Local 220 in securing designation cards but only proffered conclusionary testimony in support thereof. It did not adduce any specific evidence to support its con- tentions. Having failed to deny the specifics of the credited testimony adduced by General Counsel, Respondent must be regarded as having assisted Local 220 in obtaining a majority. It therefore violated 8(a)(1) and (2) of the Act. and I so find.' THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend an order direct- ing it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. More particularly, having found that Respondent has in- terfered with, restrained, and coerced its employees in the exercise of their right freely to select their own bargaining representative in that Respondent unlawfully supported, assisted, and recognized Local 220, the Order I shall rec- ommend will require Respondent to cease providing such unlawful support and assistance, and to withdraw and withhold all recognition from Local 220 unless and until Local 220 shall have been certified by the Board as the exclusive bargaining representative of Respondent's em- ployees in question. The Order shall further direct Respon- ' B' letter dated October II. 1977. the Board's New York Office was informed that Local 220 dlscla:tms an interest In any of the Respondent's employees at its ( onnecticut plant. See Ci.( Exh 2 491 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent to cease giving effect to the contract or agreement with Local 220, or to any renewal, modification, or exten- tion of such agreement. However, nothing in this Order shall authorize or require the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employment which may have been established pursuant to such an agreement. The Order shall also require Re- spondent to reimburse all present and former employees for all initiation fees, dues, and other moneys which may have been exacted from them by, or on behalf of, Local 220 pursuant to the aforementioned collective-bargaining agreements together with interest thereon at 6 percent per annum. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 445 and Local 220 are labor organizations with- in the meaning of Section 2(5) of the Act. 3. By recognizing Local 220 as the exclusive bargaining representative of its employees at a time when Local 220 did not represent an uncoerced majority of such employ- ees, Respondent has violated Section 8(a)(1) and (2) of the Act. 4. By showing preference to Local 220, to the detriment of a competing labor organization, by permitting Local 220 representative to organize its employees on company prop- erty, and by, thereafter, recognizing and contracting with Local 220, Respondent has violated Section 8(a)(1) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, B.F.G. Gourmet Foods, Inc.. Stam- ford, Connecticut, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Assisting or contributing support to Local 220. 7 In the event no exceptions are filed as provided by Sec. 102.46 or the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and becorme its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. (b) Recognizing and negotiating with Local 220 as the exclusive representative of its employees for the purpose of collective bargaining unless and until such labor organiza- tion is certified by the Board as the exclusive representative of said employees pursuant to Section 9(c) of the Act. (c) Enforcing or giving effect to its collective-bargaining agreement with Local 220, or any extension, renewal, or modification thereof or any superseding agreement, pro- vided, however, that nothing in this Order shall authorize or require the withdrawal or elimination of any wage in- crease or other benefits or terms and conditions of employ- ment which may have been established pursuant to such a contract. (d) Encouraging membership in Local 220 by condition- ing employment on membership in such organization ex- cept to the extent permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 220 as the exclusive collective-bargaining representative of its employees, unless and until said labor organization has been duly certified by the Board as the exclusive represen- tative of such employees. (b) Reimburse all present and former employees for all initiation fees, dues, assessments, or any other moneys which may have been paid in favor of Local 220. (c) Preserve and, upon 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 neces- sary to analyze the amount of dues and any other moneys to be repaid under the terms of this Order. (d) Post at its warehouse and office copies of the at- tached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor 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." 492