Local 464, Meat Cutters

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 464, Amalgamated Meat Cutters & Food Store Employees Union, AFL-CIO (Supermarkets Gen- eral Corporation t/a Pathmark) and Edward A. Salge, Sr. Case 22-CB-3096 January 4, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER On September 9, 1976, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a memorandum in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Local 464, Amalgamated Meat Cutters & Food Store Employees Union, AFL-CIO, Woodbridge, New Jersey, its officers, agents, and representatives shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE JOHN P. VON Romt, Administrative Law Judge: Upon a charge filed on October 31, 1975, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22 (Newark, New Jersey), issued a complaint on December 31, 1975, against Local 464, Amalgamated Meat Cutters & Food Store Employees Union, AFL-CIO, herein called the Respondent or the Union, alleging that it had engaged in certain unfair labor practices in violation of Section 8(b)(2) of the National 227 NLRB No. 115 Labor Relations Act, as amended, herein called the Act. Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before me in Newark, New Jersey, on March 1 and June 24, 1976. Briefs have been received from the General Counsel and Respon- dent on July 26, 1976, and they have been carefully considered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Supermarkets General Corporation t/a Pathmark, there- in called the Employer or the Company, is a Delaware corporation with its principal office and place of business located in Woodbridge, New Jersey, where it is engaged in the retail sale of food and related products. During the 12 months preceding the hearing herein, the Company shipped and transported products valued in excess of $50,000 from its Woodbridge facility to points and places located outside the State of New Jersey. During the same period, it received goods valued in excess of $50,000 which were transported to its Woodbridge facility from States other than the State of New Jersey. I find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 464, Amalgamated Meat Cutters & Food Store Employees Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The sole issue in this case is whether Respondent Union caused the Employer to recall from layoff Hampton Terry, a union official, in lieu of Edward A. Salge, Sr., who had greater seniority than Terry, in violation of Section 8(bX2) of the Act. A. The Facts At all times material hereto Respondent has been party to a collective-bargaining agreement with the Company for a unit consisting of all journeymen meatcutters, apprentices, wrappers, weighers, sealers, utility workers, sausage depart- ment employees, porters, general warehousemen and port- ers employed in the meat division of the Company's warehouse. Article 8 of the said contract provides in pertinent part as follows: In the event of any layoff seniority shall prevail and those employees who are last laid off shall be the first to be rehired. Whenever lay-offs become necessary, such layoffs shall occur on the basis of Company seniority, with the exception that the shop steward or stewards shall have top seniority. LOCAL 464, MEAT CUTTERS Edward Salge, a member of Respondent Union at the times material hereto, was employed in the warehouse meat division from March 26, 1974, until May 9, 1975. Salge and 19 other employees were laid off on the latter date for economic reasons. It is undisputed that Salge was the most senior of the 20 laid-off employees. One of the laid-off employees, Hampton Terry, was recalled on May 19, 1975. Hampton, a member of Respon- dent's executive board and employed by the Company as a utilityman since June 19, 1974, had less seniority than Salge who was not recalled. The facts and circumstances of Terry's recall at this time were as follows: Shortly after being laid off on May 9, Terry broached Irving Kaplan, the president of the Respondent, and asked if he could help him find a job. Kaplan indicated that he would do so. A day or two later, Kaplan called Leon Strauss, a company vice president and the director of labor relations. Explain- ing to Kaplan that Terry had been a longstanding member of the executive board and that he had served the Union well for many years, Kaplan asked if he could find a job for him. Strauss replied that he would see what he could do. At some point- during the conversation the matter of seniority was brought up. Kaplan proposed that Terry might be given a porter's job, but indicated that he was not otherwise concerned about whatever particular job was given or what it paid.l Following the conversation noted above, Strauss, who admittedly was not familiar with the details of the ware- house meat operations, contacted the supervisor of the warehouse and asked if he could find Terry a job.2 A few days later, Strauss called Kaplan and told him to send Terry to the warehouse. Upon reporting to the warehouse, Terry was put to work on a job which, if not identical, was substantially equivalent to that from which he was laid off. Significantly, Gerald N. Bissell, the director of the meat division who hired Terry, testified that he was told to hire Terry by Iz Saskan, the vice president of labor relations for the Company - and Bissell did not say that Saskan told him to hire Terry for a job outside the unit. Indeed, Bissell testified that on being recalled, Terry's duties included all jobs in the meatcutting room, excluding the use of a knife. These duties included strapping, boxing, and packaging. According to Salge, this was essentially the same work that he (Salge) observed Terry perform in his classification as utilityman prior to being laid off. In view of the foregoing, as well as the uncontroverted testimony of Bissell that all jobs in the warehouse meat department are covered by the collective-bargaining agreement, I find that Terry was hired in the appropriate unit covered by the contract. Salge became aware of Terry's recall shortly after it occurred on May 19. He was also aware that he (Salge) had top seniority of those laid off and that he should have been the first to be recalled. After first calling on May 20 to make i Both Kaplan and Strauss testified concerning this conversation, the substance of which I have set forth above. Additionally, however, both testified that during the conversation Kaplan specified that Terry should be given a job outside the bargaining unit From my observation of the witnesses, and on the record as a whole, I believe this testimony to have been contrived and I do not credit it . I might add that Strauss, who is now retired, did not give the appearance of being a neutral witness Not only was he hostile to the government's case, but he demonstrated a distinct proclivity to color his testimony in favor of Res;iondent. 2 Again, I do not credit Strauss testimony that he asked the supervisor "if he could possibly find ajob out of the unit." 703 an appointment, Salge went to the union hall and met with Kaplan on May 21. Upon identifying himself, Kaplan explained the entire situation and asked why, in view of his seniority, Terry had been recalled ahead of him. Kaplan asked Salge how long he had been a member of the Union. Salge responded 14 months. According to the credited and undenied testimony of Salge, Kaplan thereupon stated, "Well, Mr. Hampton has been on the Executive Board for 20 years and I put him to work." Salge protested, again referring to his seniority, and asked if there was anything he would do about it. Kaplan responded in the negative and the conversation terminated.3 No further action was ever taken by Respondent over the matter. B. Conclusions The facts in this case are crystal clear that Terry would not have been recalled from layoff ahead of the more senior Salge but for the intervention of Respondent President Kaplan.4 Respondent appears to defend its conduct on several grounds. One is that Terry was not recalled to a unit position. In finding no merit to this contention, suffice it to say that I have found to the contrary in the statement of facts related above. Respondent further contends in its brief that "the testimony is absolutely barren of any attempt of causing the employer to discriminate in the terms and conditions of [Salge's] employment." It hardly need be said that Kaplan's call to Strauss in which he specifically requested that Terry be singled out for recall to a job in the meat division reflects just the opposite to be true. Finally, Respondent asserts that it sought to find Terry a job based on reasons apart from his union affiliation. In rejecting this contention, as I do, the point is that Respondent's conduct in seeking to have Terry recalled without regard to the seniority of other member- employees was specifically premised on the basis of his having been a longstanding member of the Union's executive board. By thus rewarding Terry for having actively served the Union for many years, it is clear that this conduct would have the necessary and unlawful effect of encouraging union membership and union activism. The Board has so held. See Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 8, AFL-CIO (Pro- gressive Kitchen Equipment Co., Inc.), 123 NLRB 992 (1959). In sum, I find that by causing the Company to recall Hampton Terry from layoff without respect to the seniority of Salge or the other laid-off employees by reason of Terry's being a longstanding member of the executive board, Respondent violated Section 8(b)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of 3 Without denying Salge's testimony concerning this conversation, as related above, Kaplan testified only that he responded to Salge's complaint by telling him "if you have a grievance, go outside and file a form and we will process it." Assuming that Kaplan did tell Salge to file a grievance , I find this not to be a determinative factor in deciding the issue herein. 4 Apart from this conclusion being clear from the facts previously recited, Strauss conceded, when asked if he would have recalled Terry if he had not received the call from Kaplan, "There would be no issue. I would not have recalled him." 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that Respondent caused the Employer to discriminate against Edward A. Salge, Sr., I shall recommend that Respondent make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Supermarkets General Corporation t/a Pathmark is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct described in section III, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. On the basis of the above 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: ORDERS The Respondent, Local 464, Amalgamated Meat Cutters & Food Store Employees Union, AFL-CIO, Woodbridge, New Jersey, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Supermarkets General Corporation t/a Pathmark to discriminate in regard to hire and tenure of employees, including the recall of employees from layoff, in violation of Section 8(aX3) of the Act. (b) In any other manner restraining or coercing employ- ees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make whole Edward A. Salge, Sr., for any loss of pay he may have suffered because of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its office and meeting hall copies of the attached notice marked "Appendix." 6 Copies of said notice on forms provided by the Regional Director for Region 22, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish the Regional Director for Region 22 signed copies of said notice for posting by Supermarkets General Corporation t/a Pathmark, if willing, in places where notices to employees are customarily posted. Copies of said notices on forms provided by said Regional Director shall, after being signed by Respondent, be forthwith returned to the Regional Director for disposition by him. (d) Notify the Regional Director for Region 22, in writing, within 20' days from the date of this Order, what steps Respondent has taken to comply herewith. 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 6 In the event that the Board's 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause, or attempt to cause, Supermark- ets General Corporation t/a Pathmark to discriminate in regard to the hire and tenure of employees, including the recall of employees on layoff, in violation of Section 8(a)(3) of the National Labor Relations Act. WE wu.L make Edward A. Salge, Sr., whole for any earnings he may have lost as a result of our causing the above-named Company to recall from layoff an em- ployee with less seniority than that held by him. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. LOCAL 464, AMALGAMATED MEAT CUTTERS & FOOD STORE EMPLOYEES UNION, AFL-CIO