Ethnic Produce

ETHNIC PRODUCE Caamano Brothers, Inc. d/b/a Ethnic Produce and Produce, Refrigerated and Processed Foods and Industrial Workers Local 630, International B rotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 21- CA-21338 24 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 July 1983 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,' findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Caamano Brothers, Inc. d/b/a Ethnic Produce, Los Angeles, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. ' The Respondent has excepted only to the judge's reinstatement order and to his ruling precluding the Respondent from inquiring into whether the discrimmatees were legally present and legally free to be employed in this country We find that the Respondent was not prejudiced by the judge's ruling After the issuance of the judge's decision , the Supreme Court issued its decision in Sure-Tan, Inc. v NLRB, 116 LRRM 2857 (June 25, 1984), in which it held, inter alia, that, while undocumented alien workers are employees entitled to the Act's protection, "the imple- mentation of the Board's traditional remedies at the compliance proceed- ings must be conditioned upon the employees "' legal presence in the United States In accordance with Sure- Tan, implementation of our rein- statement order is dependent on the discriminatees' legal presence in this country, and the Respondent may present any evidence that bears on this issue at the compliance stage of this proceeding DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Los Angeles, California, December 9, 1982. The charge was filed June 15, 1982, by Produce, Refrigerated and Processed Foods and Industrial Work- ers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). The complaint issued July 27, and alleges that Caamano Brothers, Inc. d/b/a Ethnic Produce violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by discharging Martin Calvillo Garcia (Calvillo) and Marcelo Potenciano Serrano (Potenciano) June 14, 1982, and violated Sec. 8(a)(1) that same day by 205 telling Calvillo and Potenciano that they were being dis- charged because of their activities protected by the Act.' I JURISDICTION Caamano Brothers , Inc., is a California corporation en- gaged in the nonretail sale of produce in Los Angeles. It annually purchases items of a value exceeding $50,000 di- rectly from outside California, and is an employer en- gaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED MISCONDUCT A. Facts Caamano Brothers, Inc., operated two businesses at relevant times, one under that name and the other enti- tled "Ethnic Produce " They were across the street from each other. In charge of the overall enterprise was Daniel Caamano, corporate president.2 The manager of Ethnic Produce, accountable to Caamano, was Leo San- chez.3 Calvillo began working at Ethnic Produce May 5, 1982. He testified that his job was to "take the merchan- dise to the customers that purchased it." Potenciano began May 6. His duties, he testified, "were to do the cleanup . . . deliver the merchandise, and drive the tow motor." Two others, Frank Hernandez and a person not identified by name, apparently also performed these or similar tasks at Ethnic Produce at the time, with the one not identified presently being shifted across the street. Others then working at Ethnic Produce, aside from San- chez, were Gonzalo Hernandez , a seller (and Caamano's brother-in-law), and Martha Leon, a secretary. In late May and early June, encouraged by Sanchez, Calvillo, Potenciano, and Frank Hernandez made three visits to the Union's hall, talking to Hank Meza, a busi- ness representative, about representation. On June 2, during the second of these visits, each signed a union au- thorization card. ' Sec 8(a)(3) states that it is an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization " Sec 8 (a)(1) makes it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 " Sec 7 gives employees "the right to self- organization , to form, join, or assist labor organizations , to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and also the right to refrain from any or all such activities . " 2 Caamano testified that the Ethnic Produce part of the operation was discontinued "about a month" before the trial There is no need in this decision to pass on the truth of that statement 3 It is concluded that Sanchez was a supervisor at relevant times It is undisputed that he unlocked and locked the facility each day, that he di- rected the work of those working there, that he hired Calvillo, Poten- ciano, and at least one other, Frank Hernandez, and that Caamano, after resisting the demands of Calvillo and Potenciano to be paid $200 per week clear, relented after being told by Sanchez that he "did offer that " 275 NLRB No. 38 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The morning of June 14, Meza and another union rep- resentative, Nick Nardi, went to Ethnic Produce, inform- ing Sanchez that a "majority of the people [had] signed up" and that they were there "to demand recognition." Sanchez responded that he was "just a manager," with- out authority to deal with such matters, and that Caa- mano was the one to see. The union officials "walked across the street" to Caa- mano's office, confronting him with word that "the ma- jority of the people" at Ethnic Produce had "signed up," and that the Union was "demanding recognition." Those who had signed were not mentioned by name. First com- plaining, "I don't know what these fellows want . . . they asked for $200 a week and they got it,"4 Caamano asked, "What are my alternatives?" Nardi answered that he "could recognize the Union and sign a contract"; or "have a card check, with an uninterested third party to check the signatures"; or the Union "could petition the Board for an election." The meeting ended with Caa- mano asking for time to "think it over," and Nardi saying, "We will wait for your call."5 Later the morning of the June 14, as their workday ended, Calvillo and Potenciano received word from San- chez, in separate conversations, that they were dis- charged. Sanchez told Calvillo that the union officials had been there; and that Caamano, "very upset" about it, had directed that he "be fired " Sanchez told Potenciano that Caamano "had gotten mad" because of the union visit, and that there would not be "any more work" for him there.6 Frank Hernandez, not at work that day, es- caped similar treatment.? 4 Calvillo and Potenciano credibly testified that, on their first payday, upon receiving checks reflecting certain withholdings from their weekly gross pay of $200, they complained to Caamano, who, first speaking with Sanchez as mentioned in the preceding footnote, gave them cash supple- ments that day to offset the amounts withheld, after which they received $200 cash each week According to both, Caamano told them, when agreeing to this arrangement, that the Company would not be responsible should they incur on-the-job injury 5 This is Nardi's credited version of the conversation, substantiated in its basics by Caamano. Meza did not testify 6 These, respectively, are Calvillo's and Potenciano's unrefuted and credited versions of Sanchez's remarks Sanchez, no longer with Caa- mano Brothers, did not testify Caamano's denials that he told Sanchez to fire the two, and that he never so much as spoke to Sanchez about the visit by the union official ("No, not that I recall ") were singularly un- convincing 7 The record hints that Frank Hernandez' employment ended the week before Caamano's testimony perforce is rejected that Calvillo and Potenciano, having worked 1 week and being paid for 2, "disappeared," never to be seen again Had that been the case, it is altogether improbable that they later would have sought union representation, or that Caamano would have offered them reemployment in reaction to the charge herein (which he did, on advice of counsel, by joint letter dated July 21) Moreover, Caamano's demeanor was unpersuasive when delivering this (and much of his other) testimony, and he stated in an affidavit given during the in- vestigation of the charge that Calvillo and Potenciano continued to work, as "swampers," after the first week The testimony of Gonzalo Hernan- dez likewise is not credited that the two worked only 1 week in May and then left, as is that to like effect of Juana Hernandez, the payroll clerk (who is Gonzalo's wife and Caamano's sister) Swampers unload trucks Although asserting in his live testimony that swampers are hired by and work for the truckers, not Caamano Brothers Caamano stated in his affidavit that their hire was "left to" Sanchez and Gonzalo Hernandez, and that Sanchez used some more than others "be- cause he appeared to prefer them " Caamano testified that Caamano Brothers "end[s] up paying the swampers . most of the time," in cash The charge, as earlier noted, was filed the next day. B. Conculsion It is concluded that the discharges, occurring in the immediate aftermath of the union officials' visit and demand for recognition and accompanied by Sanchez' remarks attributing those actions to Caamano's displeas- ure over the visit, violated Section 8(a)(3) and (1) as al- leged. It also is concluded that those same Sanchez' re- marks violated Section 8(a)(1) as alleged. CONCLUSIONS OF LAW By discharging Martin Calvillo Garcia and Marcelo Potenciano Serrano, as found herein, Caamano Brothers, Inc., violated Section 8(a)(3) and (1) of the Act. When Sanchez told them in substance that they were being dis- charged because of the union officials' visit, the employ- er additionally violated Section 8(a)(1) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondent, Caamano Brothers, Inc., d/b/a Ethnic Produce Los Angeles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees for engaging in union activities. (b) Telling employees that they are being discharged because of their activities protected by the Act. (c) In any like or related manner interfering with, 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) If it has not adequately done so, offer to Martin Calvillo Garcia and Marcelo Potenciano Serrano imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges; and make them whole with interest for any loss of pay they may have suffered by reason of their unlawful discharges.9 (b) Remove from its files any references to the dis- charges of Martin Calvillo Garcia and Marcelo Poten- ciano Serrano which occurred June 14, 1982, and notify as prescribed by industry practice, and then deducting that amount from the freight bill On this evidence, the employer's contention is rejected that Calvillo and Potenciano were not its employees at all relevant times 8 All outstanding motions inconsistent with this recommended Order are denied In the event no exceptions are filed as provided in Sec 102 46 of 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 become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 9 Backpay is to be computed in accordance with F W. Woolworth Co, 90 NLRB 289 (1950), with interest to be computed as set forth in Florida Steel Corp, 231 NLRB 651 (1977). Determination whether the July 21 letter to the dischargees was an adequate reinstatement offer is left to the compliance phase of this proceeding ETHNIC PRODUCE them in writing that this has been done and that evi- dence of those unlawful discharges will not be used as a basis for future personnel actions against them. (c) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facilities in Los Angeles, California, English and Spanish language versions copies of the at- tached notice marked "Appendix." i o Copies of the notice, on forms provided by the Regional Director for Region 21 , after being signed by the Respondent's au- thorized representative , shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. io If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 207 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 protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge or otherwise discriminate against employees for engaging in union activities. WE WILL NOT tell employees that they are being dis- charged because of their activities protected by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, if we have not adequately done so, offer to Martin Calvillo Garcia and Marcelo Potenciano Serrano immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges; and WE WILL make them whole with in- terest for any loss of pay they may have suffered by reason of their unlawful discharges. WE WILL expunge from our files any references to the discharges of Martin Calvillo Garcia and Marcelo Poten- ciano Serrano which occurred June 14, 1982, and WE WILL notify them in writing that this has been done and that evidence of those unlawful discharges will not be used as a basis for future personnel actions against them. CAAMANO BROTHERS , INC. D/B/A ETHNIC PRODUCE The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.