Southern States Distribution, Inc.

SOUTHERN STATES DISTRIBUTION, INC Southern States Distribution, Inc. and Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America. Case 26-CA-8891 September 22, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, ANI) ZIMMERMAN On June 15, 1982, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. 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, find- ings,2 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Southern States Distribution, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has requested oral argument. This request is hereby denied, as the record, exceptions, and brief, adequately present the issues and the positions of the parties. In accordance with his dissent in Olympic Medical Corporalion, 250 NLRB 146 (1980). Member Jenkins would award interest on the hackpay due based on the formula set forth therein a Both Respondent and the General Counsel excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon charges and amended charges filed by Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of 264 NLRB No. I America, in Cases 26-CA-8461, 26-CA-8832, and 26- CA-889 1,' the Regional Director for Region 26 issued a consolidated complaint and notice of hearing on March 16, 1981, alleging that Respondent, Southern States Dis- tribution, Inc., had committed a number of violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein called the Act. Respondent, by timely answer, denied commit- ting the alleged unfair labor practices. Thereafter, these consolidated cases came on for hearing before me at Memphis, Tennessee, on September 2 and 3, 1981. At the outset of the hearing, I approved the parties' informal settlement of Cases 26-CA-8461 and 26-CA-8832, and, upon the parties' joint motion, severed and dismissed these two cases. In the remaining case, Case 26-CA- 8891, the complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discontinuing its practice of giving Thanksgiving turkeys and Christmas bonuses to its employees in reprisal for the Union's suc- cess in organizing them. However, after Respondent had rested, I granted the General Counsel's motion to amend the complaint to allege that Respondent's unilateral dis- continuance of these policies also violated Section 8(a)(5) and (1) of the Act. 2 Respondent denied that its conduct had violated Section 8(a)(5) and (1) of the Act. Upon the entire record, from my observation of the witnesses' demeanor, and after due consideration of the post-hearing briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION ANT) 'HE L.ABOR ORGANIZATION INVOLVED Respondent, a corporation engaged in the storage and distribution of wholesale merchandise, maintains an office and place of business at Memphis, Tennessee. During the 12 months preceding issuance of the com- plaint Respondent' received gross revenues of $500,000 from its business operations. During the same period, Re- spondent purchased goods at its Shelby County facility valued in excess of $50,000 from employers who had purchased those goods directly from points located out- side Tennessee. Respondent admits the foregoing data and concedes that, at all times material to this case, it was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, and Respondent concedes, that the Union, Highway and Local Motor Freight Employ- ees, Local Union No. 667, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is, and has been at all times mate- rial to this case, a labor organization within the meaning of Section 2(5) of the Act. ' The case numbers of the cases dismissed have been deleted from the caption. 2 As the General Counsel's motion was timely made, as the new alle- gation relates to the same subject matter as did the allegations in the original complaint, and as Respondent's unilateral conduct was fully liti- gated at the hearing. I reaffirm my ruling Cf Nebraska Bulk Transport, Inc., 240 NL RB 135. 154-156 (1979) 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE ALLEGEI) UNFAIR I.ABOR PRACTICES A. Issues and Conclusions The issues presented are: (1) whether Respondent dis- continued its practice of giving its employees Thanksgiv- ing turkeys and Christmas bonuses because they selected the Union as their exclusive collective-bargaining repre- sentative; and (2) whether Respondent, by failing to pro- vide the Union with an opportunity to bargain collec- tively regarding the discontinuance of these benefits, vio- lated Section 8(a)(5) and (1) of the Act. For reasons set forth below, I find that Respondent did not violate Sec- tion 8(a)(3) of the Act and recommend dismissal of those allegations in thie complaint. However, I also find that Respondent violated Section 8(a)(5) and (1) of the Act. B. Facts Respondent began operations in 1973. From 1974 until and including 1979, Respondent annually gave Thanks- giving turkeys and Christmas bonuses to its employees. Respondent's president, Connie Haynes, regarded these benefits as "a gift to the employees to show appreciation for their loyalty and performance." During the 6 years in which Respondent granted the turkeys and bonuses, its employees were not represented by a labor organization. On July 18, 1980, a majority of Respondent's employ- ees in the following unit appropriate for bargaining, in a Board-held election, selected the Union as their exclusive collective-bargaining representative: All full-time and regular part-time production, warehouse and maintenance employees including order pullers, lift operators, checkers, repack, sani- tation, inventory control employees at the Employ- er's 4834 Mendenhall Road location in Memphis, Tennessee, excluding all office clericals, truck driv- ers, guards, and supervisors as defined in the Act. On February 26, 1981, the Board certified the Union as the exclusive bargaining representative of the unit em- ployees. Connie Haynes expressed opposition to the Union during the preelection campaign in the form of a letter addressed: "TO OUR EMI'LOYEES." Among the 13 questions which Respondent's management posed in the letter was: "Did you need a union to get your Christmas bonus?" At the hearing before me, Haynes again expressed op- position to the Union. She testified in substance that she would prefer to operate Respondent free of union in- volvement. Respondent's practice from 1974 to 1979 was to make the decision early in November regarding Christmas bo- nuses and Thanksgiving turkeys. However, when the time for this decision arrived in 1980, Respondent was aware that it had suffered a substantial and extraordinary loss in stolen merchandise which was later fixed at $93,000. Three months earlier, a warehouse supervisor. Bubba Fields, was apprehended and pleaded guilty to stealing merchandise from Respondent. However, Re- spondent suspected that employees were also involved in similar misconduct. In February and March 1981, Re- spondent polygraphed five employees, all of whom ad- mitted they had stolen merchandise. Later in 1981, Re- spondent discharged the five. In addition, in early November 1980, Respondent was aware that it had lost pallets valued at approximately $1 00,000. This loss was far in excess of any previous year's loss of pallets. Respondent suspected that its em- ployees had been selling the pallets across its dock. Without notice to the Union, Respondent decided to withhold turkeys and bonuses from its hourly employees. Respondent granted bonuses to its salaried clerical em- ployees and supervisors, but did not give Thanksgiving turkeys to them. The salaried employees' bonus in 1980 was $25 per employee. The record did not disclose the amounts of the bonuses granted to Respondent's supervi- sors in 1980. In Southern States Distribution, Inc., 260 NLRB 1291 (1982), the Board found that, by refusing to recognize and bargain with the Union since March 18, 1981, as ex- clusive collective-bargaining representative of the unit described above, Respondent violated Section 8(a)(5) and (1) of the Act. C. Analysis and Conclusions The General Counsel contends that in 1980 Respond- ent withheld Thanksgiving turkeys and Christmas bo- nuses from the unit employees in retaliation for their sup- port of the Union in the representation election. Re- spondent urges rejection of that contention on the ground that it is unsupported by the record. I agree with Respondent's position. I find that the General Counsel has not shown that union animus played any part in Re- spondent's decision to withhold turkeys and bonuses from the bargaining unit employees. There has been no showing that Respondent's management threatened such reprisals during or since the Union's election campaign. Nor was there any showing that Respondent engaged in any other conduct showing its willingness to punish em- ployees for supporting the Union. Neither Respondent's stated preference for a nonunion shop nor its antiunion letter to employees included any express or implied threat of reprisal. Nor did Respondent give any other in- dication of its willingness to engage in unlawful conduct because the employees selected the Union as their bar- gaining representative. Respondent's decision to give bonuses to its nonunit employees and supervisors does not provide adequate support for the General Counsel's contention. At the time President Haynes and her colleagues made this deci- sion, they knew that one supervisor was involved in the pilferage of the missing merchandise. However, Re- spondent also suspected that unit employee had pilfered a substantial portion of that merchandise as well as a considerable quantity of Respondent's pallets valued at $100,000. There was no showing that Respondent's suspi- cions were unfounded or exaggerated. These circumstances and my impression that President Connie Haynes, Respondent's main witness, generally testified in a straightforward manner, persuaded me to credit her testimony that she withheld the turkeys and bonuses from the unit employees in 1980 because of Re- 2 SOUTHERN STATES DISTRIBUTION, INC. spondent's losses of merchandise and pallets and not be- cause of the Union's election victory. It is undisputed that Respondent unilaterally decided to discontinue its practice of giving Thanksgiving tur- keys and Christmas bonuses to the bargaining unit em- ployees in November 1980, after the Union had won a Board-held representation election involving those same employees. However, by granting the two benefits to those employees annually from 1974 to 1979, both years inclusive, and by its reference to the bonus in its preelec- tion letter to the unit employees, I find that Respondent established the bonus as a wage and the Thanksgiving turkey as a condition of employment for its unit employ- ees. Laredo Coca Cola Bottling Company, 241 NLRB 167, 174 (1979); Atlantic International Corporation, 246 NLRB 291, 295, fn. 4 (1979). By eliminating these benefits without first notifying and consulting with the bargaining agent, which its em- ployees had selected as their bargaining representative, Respondent violated Section 8(a)(5) and (1) of the Act. American Safety Equipment Corporation, 241 NLRB 115, 117-118 (1979); Allied Products Corporation, Richard Brothers Division, 218 NLRB 1246, 1252-53 (1978), enfd. in pertinent part 548 F.2d 644 (6th Cir. 1977). The losses of merchandise and pallets did not provide an excuse or justification for Respondent's neglect to bargain with the Union any more than would any other adverse economic factor. Laredo Coca Cola Bottling Company, supra, 241 NLRB at 174. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing its practices of granting Thanksgiving turkeys and Christmas bonuses to its em- ployees in the following unit, without prior notice to or consultation with the Union as their collective-bargaining representative: All full-time and regular part-time production, warehouse and maintenance employees including order pullers, lift operators, checkers, repack, sani- tation, inventory control employees at the Employ- er's 4834 Mendenhall Road location in Memphis, Tennessee, excluding all office clericals, truck driv- ers, guards, and supervisors as defined in the Act. 4. The aforesaid unfair labor practices affect commerce within the m'aning of Section 2(6) and (7) of the Act. 5. Respondent did not violate Section 8(a)(3) and (1) of the Act by discriminating against its employees in the collective-bargaining unit, when it discontinued its prac- tices of granting Thanksgiving turkeys and Christmas bo- nuses to them. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act, by unilaterally discontinuing its prac- tices of granting Thanksgiving turkeys and Christmas bo- nuses to employees represented by the Union, without notice or consultation with the Union, I shall recom- mend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that Respondent give the 1980 Thanksgiving turkeys and Christmas bonuses, plus inter- est, to its employees in the bargaining unit represented by the Union. 3 The bonuses shall be calculated in ac- cordance with the formula used to calculate the 1974-79 bonuses. Interest shall be calculated as provided in Flor- ida Steel Corporation, 231 NLRB 651 (1977), and F W Woolworth Company, 90 NLRB 289 (1950). 4 Upon the foregoing findings of fact, conclusions of law, and the record in its entirety, I hereby issue the fol- lowing recommended: ORDER 5 The Respondent, Southern States Distribution, Inc., Memphis, Tennessee. its officers, agents. successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union with respect to discontinuance of any wages or terms and conditions of employment, including Christmas bo- nuses and Thanksgiving turkeys, for its employees in the following appropriate unit: All full-time and regular part-time production. warehouse and maintenance emplosces including order pullers, lift operators. checkers. repack. sani- tation, inventory control employees at the Employ- er's 4834 Mendenhall Road location in Memphis, Tennessee, excluding all office clerical.. truck driv- ers, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering sith, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the Union as the exclusive collective-bargaining representative of all its employees in the above appropri- ate unit, with respect to wages, hours, and other terms and conditions of employment. (b) Make whole its employees wsithin the above-de- scribed appropriate unit for any monelary losses they may have suffered as a result of Respondent's unilateral discontinuance in 1980 of its practices of giving employ- ees Thanksgiving turkeys and Christmas bonuses. atith interest as provided in "The Remedy." 3 'onwsockcet Spin/ning Coopanp . 252 NI RB 1170 IQS 110) 4 Se., generally lots Plumbing & Heating Co.. 138 NI RBl 71h (162) 5 In the event no xcxeptions are filed a, pros ided hb Sec 102 46 of the Rules and Regulations of the National Labor Relatilons Board, the find- ings, conclusions, and recommended Order herein shall. as pro ided in Sec. 102.48 of the Rules and Rcgulatlnn,, he adopted hb the Board and become ils findings. conclusions, and Order, and ll ohlclilons, Ihercto shall be deemed waived for all purposesl 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, and all other records necessary to calculate the amount of bo- nuses due under the terms of this Order. (d) Post at its facility at Memphis, Tennessee, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to Respondent are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor prac- tices not specifically found herein. 6 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 Pursu- ant 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 After a hearing at which all parties had the opportunity to present their evidence, it has been decided that we violated the law in certain respects, and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT refuse to bargain collectively with the Union, Highway and Local Motor Freight Em- ployees, Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, as the representative of our employees in the following unit, with respect to discontinuance of any wages or terms and conditions of employment, including Christmas bonuses and Thanksgiving turkeys: All full-time and regular part-time production, warehouse and maintenance employees including order pullers, lift operators, checkers, repack, sanitation, inventory control employees at the Employer's 4834 Mendenhall Road location in Memphis, Tennessee, excluding all office cleri- cals, truck drivers, guards, and supervisors as de- fined in the Act. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL bargain in good faith with the Union as the exclusive collective-bargaining representative of all our employees in the above appropriate unit, with respect to wages, hours, and other terms and conditions of employment. WE WILL make whole our employees within the above-described appropriate unit for any monetary losses they may have suffered as a result of our uni- lateral discontinuance in 1980 of our practices of giving Thanksgiving turkeys and Christmas bonuses to them, with interest. SOUTHERN STATES DISTRIBUTION, INC. 4