Goodie Brand Packing Corp.

GOODIE BRAND PACKING CORP. 673 Goodie Brand Packing Corp . and Roberto Sanchez and Elva Rodriguez. Cases 2-CA-18205,, 2- CA-18299, 2-CA-18361, and 2-CA-18370 20 April 1987 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 April 1984 the National Labor Relations Board issued a Decision and Order in this proceed- ing' in which the Board adopted the finding of the administrative law judge that the Respondent' vio- lated Section 8(a)(1) of the Act by certain of its statements to and conduct toward Union Steward Roberto Sanchez. The Board further found, in dis- agreement with the judge, that the Respondent did not violate Section 8(a)(3) of the Act by discharg- ing Sanchez, that the strike in protest of Sanchez' 'discharge was not a protected unfair labor practice strike, and that the discharges of the strikers and refusal to reinstate them were not in violation ' of Section 8(a)(3). Subsequently, the Charging Parties petitioned the United States Court of Appeals for the Second Circuit to review and set aside the Board's Order. On 11 March 1986 the court of ap- peals issued its decision granting the petition for review, modifying the Board's Order to find that the Respondent violated Section 8(a)(3) by dis- charging Sanchez, and providing for the reinstate- ment of Sanchez. The court remanded the case to the Board for further proceedings with respect to the 8(a)(3) claims of the striking employees.2 The Board accepted the court's remand and noti- fied the parties that they could file statements of position concerning the issues the remand raised. The General Counsel, the Respondent, and the Charging Parties filed statements of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board accepts,the court's opinion as the law of the case. The Board has considered the record as a whole in light of the court's decision and the statements of position on remand and now makes the following findings. Both the Respondent's drivers and floorworkers have been represented by Teamsters Local 202 since 1959 under separate collective-bargaining agreements that provide for union stewards and ar- bitration, and contain valid no-strike and union-se- curity clauses. Many provisions of the agreements, 1 270 NLRB 451 (1984). 2 Roberto Sanchez & Elva Rodriguez Y. NLRB, 785 F.2d 409 (2d Cir. 1996). 283 NLRB No. 103 including the union-security clause, were not being enforced when Roberto Sanchez became shop steward in July 1980. The Respondent had a telling history of hostility to union activities and of harass- ment of stewards. After Sanchez became steward, he was ,threatened and assigned more onerous working conditions. Part-owner Abe Solomon asked Sanchez why he was organizing the workers and said that Solomon would fight Sanchez every day. Sanchez was told to advance his own money for tolls, contrary to prior company practice, and he was assigned to the night shift contrary to se- niority rules. The Respondent also sent letters to the -Union complaining about Sanchez' work per- formance. The Board found that the Respondent violated Section 8(a)(1) of the Act by threatening, warning, and interrogating Sanchez and assigning him more onerous working conditions because of his protected concerted activity.3 Despite this har- assment, Sanchez filed over 45 grievances. On 25 September 19814 Sanchez had an accident in one of the Respondent's trucks, which was dam- aged to the extent of $2300. After the incident Abe Solomon told Sanchez he was being suspended and sent him a copy of a letter to the Union indicating Sanchez was being suspended indefinitely. 'Later, on 2 October, Solomon told Union Agent Mogil- nicki that the indefinite suspension would be for-2 weeks. Neither Solomon nor Mogilnicki told San- chez or any of the employees that the indefinite suspension had been converted to a 2-week suspen- sion. Believing he had been discharged, on 5 October Sanchez and about 40 employees set up a picket line outside the Respondent's plant to protest the action taken against Sanchez. On 6 October the Respondent sent a letter to all these employees except Sanchez informing them that they Were en- gaged in a wildcat strike and that they would be discharged unless they returned to work on 9 Oc- tober. Eventually, all striking employees were of- fered unconditional reinstatement except Sanchez and-former steward Elva Rodriguez and her sister. As stated above, the court 'granted the petition for review with respect to Sanchez"claim that the Respondent discharged him in violation of Section 8(a)(3).5 Pursuant to, the court's remand, the single 3 270 NLRB 451 (1984) 4 All dates hereinafter are in 1981 unless otherwise specified. 5 The court found that the unlawful actions taken against Sanchez cul- minated in his removal from the payroll on 25 September. The judge and the Board agreed there was a puma facie case that the Respondent's action was unlawfully motivated. The Board found, however, contrary to the judge, that the Respondent had satisfied its burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F2d 899 (1st Cu, 1981), cert denied 455 U S. 989 (1982), of establishing that it would have taken the action against Sanchez even in the absence of protected activity because of his Continued 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD issue before us is whether the striking employees were discharged in violation of Section 8(a)(3). We must first decide if the strike was prompted by the unlawful action taken against Sanchez on 25 Sep- tember. We find that it was. All the employee witnesses testified that they de- cided to strike in order to seek the reinstatement of Sanchez, an active shop steward. The employees' picket signs indicated they were ' striking because they wanted their shop steward put back to work. Since the court has found that Sanchez' discharge violated Section 8(a)(3), we fmd that the strike in protest thereof rendered the strikers unfair labor practice strikers. The remaining issue is whether the strikers were engaged in protected concerted activity in spite of the no-strike clause ' in the collective-bargaining agreement. In Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956), the Supreme Court held that a no-strike clause in a collective-bargaining agreement does not waive the right to strike against an employer for unfair' labor practices. In Arlan's Department Store,' 133 NLRB 802 (1961), the Board limited this rule to apply only in cases of serious unfair labor practices. The Union herein made little or no effort to , enforce the collective-bargaining agreement. With Sanchez. gone the employees had "virtually no representation," as the judge found. 270 NLRB at,457. We find, in agreement with the judge, that the Respondent's attempt to deprive its employees of proper representation was a serious unfair labor practice within the meaning of Arlan's. See also Lustrelon,, Inc., 242 NLRB 561, 570-571 (1979). Therefore, we fmd that the no-strike clause does not apply, that the strike was protected, that the Respondent's 6 October letter discharged the strik- ers in violation of Section 8(a)(3) and (1), and that they - are entitled to reinstatement and backpay in accord with Abilities & Goodwill, 241 NLRB .27 (1979).6 driving mishap. The court rejected the Board's fording and concluded that while the evidence suggests that Sanchez was merely suspended for a week or two because of the driving mishap, it does not support a find- ing that Sanchez was discharged for the incident. Under the court's anal- ysis, the Respondent failed to sustain its Wright Line burden, leaving intact the prima facie case of unlawful discipline of Sanchez for union activity. While the court made no specific finding regarding the date of Sanchez' discharge, the discharge must have commenced at the time of Sanchez' 25 September removal from the payroll, as found by the judge Our conclusion as to the date of discharge is supported by the court's analysis recited above and its order that those portions of the judge's de- cision -concerning the rehiring of Sanchez be reinstated. 785 F.2d 409, 415. This would- necessarily include the judge's conclusions on the dis- charge date for the purpose of calculating Sanchez' backpay.- 6 Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27 (1979), and would- date the Respondent's backpay obligation to the dis- charged strikers from the time they made an unconditional offer to return to work. Inasmuch as the court has al-ready , reinstated the portions of the judge's recommended Order pro- viding for the reinstatement of Sanchez , it is unnec- essary to repeat them here .- Rather, we shall adopt those parts of the judge's recommended Order dealing with the reinstatement and backpay of the discharged strikers. ORDER The National Labor Relations Board adopts the pertinent portions of the recommended Order of the administrative law, judge set forth below and orders that the Respondent, Goodie Brand Packing Corp., Bronx, New York, its officers, agents, suc- cessors, and -assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any of its employees because of their par- ticipation in protected strike activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them' by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) To the extent it has not already done so, offer Jose Rodriguez, Ana La Roche, Santia Rodriguez, Elva Rodriguez, Maria Luisa Rentas, Isabel Bank, Nancy Santana, Mariliez Torrez, Rafael Larra- cuente, Jose Suarez, Andres Tejada, Juanita Sedano, Natalio Santiago, Victor Negron, and Raul Robles immediate and full reinstatement to their former job or, if those jobs no longer,exist, to sub- stantially equivalent -positions, and make them whole for their lost earnings in the manner set forth in - the remedy section of the administrative law judge's decision. (b) Remove from, its files any reference to the discharges of the employees named above- in (a), and notify each of. the discriminatees in writing that this has been done and that evidence of these 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 copy- ing, all payroll records, social security payment records, timecards, personnel records and 'reports, and all other - records necessary to analyze the amount of backpay due under the. terms of this Order. (d) Post at its New York, New York place of business, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms pro- 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 Nation- Continued GOODIE BRAND PACKING CORP. 675 vided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent 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 Respondent has taken to comply. al 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 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of you who participate in protect- ed strike activities. WE WILL NOT in any like or related manner interfere with, restrain,. or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, to the extent we have not already done so, offer Jose Rodriguez, Ana La Roche, Santia Rodriguez, Elva Rodriguez, Maria, Luisa Rentas, Isabel Bank, Nancy Santana, Mariliez Torrez, Rafael Larracuente, Jose Suarez, Andres Tejada, Juanita Sedano, Natalio Santiago, Victor Negron, and Raul Robles, immediate and full rein- statement 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 WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the discharges of the employees named above, and notify each of them in writing that this has been done and that evidence of these unlawful dis- charges will not be used as a basis for future per- sonnel actions against them. GOODIE BRAND PACKING CORP.