Ehrlich Beer Corp.

EHRLICH BEER CORP. 671 Ehrlich Beer Corp. and Local 277, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case 2-CA- 21881 judge and orders that the Respondent, Ehrlich Beer Corp., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 30 September 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 14 May 1987 Administrative Law Judge Raymond P. Green issued the attached decision. Both the General Counsel and the Respondent filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law i The Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 We disavow the judge's reference, in sec II,(c), par 1, of his deci- sion, to employee Ismael Mendez' motivation in seeking union representa- tion The judge stated, "As to Mr Mendez the question is did the com- pany discharge him because of his union activities or did he seek union- ization because he had good reason to believe that he was about to be fired " We find Mendez' motivation in seeking unionization irrelevant to the issue of whether his discharge violated Sec 8 (a)(3) and (1). We agree with the judge's finding that the Respondent's layoff of its empties warehouse employees violated Sec 8(a)(3) and (1) of the Act We also agree with the judge's rejection of the Respondent's assertion that the layoffs were necessary because the Respondent's suppliers no longer accepted returns of empty cans and bottles The judge found, con- trary to the Respondent's assertion, that pursuant to New York law, the Respondent's suppliers were required to accept such returns In its excep- tions, the Respondent asserts, inter alia, that the judge misconstrued and misapplied the applicable New York law We have reviewed McKinney's Consolidated Laws of New York, Secs 27-1007 and 1009, concerning the mandatory acceptance of empty beer beverage containers, and we agree with the judge's conclusion We therefore find that the Respondent has not met its burden of rebutting the General Counsel's puma facie case of unlawful layoffs under Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 889 (1st Cir 1981), cert denied 455 U.S. 989 (1982), approved in NLRB v Transportation Management Corp, 462 U S 393 (1983) 3 The General Counsel has requested that the recommended notice be printed in English and Spanish We find merit in the General Counsel's request, and we amend the recommended remedy accordingly Carol Sabin, Esq., for the General Counsel. Arthur Liberstein, Esq., of New York, New York, for the Respondent. Ann W. Schulman, Esq. (Cohn, Glickstein, & Lurie), of New York, New York, for the Union. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me in New York, New York, on 15, 20, and 26 January 1987. The charge in this proceeding was filed by the Union on 1 October 1986 and the com- plaint was issued by the Regional Director of Region 2 of the National Labor Relations Board on 13 November 1986. In substance, the complaint as amended at the hearing alleges: 1. The discriminatory discharge on 27 September 1986 of Ismael M. Mendez. 2. The discriminatory discharges on 30 September 1986 of Carlos Muniz, Ricardo Cruz Morales, Luis Nieves Morales, Angel Lopez, Juan Soto, Martin Vega, and Robert Harvin. Based on the entire record in this case including my observations of the demeanor of the witnesses and after reviewing the briefs filed by the parties, I make the fol- lowing FINDINGS AND CONCLUSIONS I. J4TRISDICTION It is admitted by Respondent and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Also at the hearing, the Respondent conceded and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS The Respondent is a small business enterprise engaged in the wholesale distribution of beer in New York City. It obtains beer from other larger wholesalers who in turn get their beer from the brewers. The Company then sells beer to small markets, restaurants, and taverns. Its chief operating officer is Scott Ehrlich. i By June or July 1986, the Company was losing money. To deal with this problem the Company, among other things, laid off three of its drivers and substituted owner- driver to take care of the routes. After this and until mid-September 1986, the Company directly employed five persons to work either as drivers, helpers, or ware- i Scott Ehrlich's father, Irving, is also an officer of the corporation. The senior Ehrlich has, however, withdrawn from active participation in the Company and has left it, since 1985, in the hands of his son 286 NLRB No. 58 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD housemen. These were Felix Zayas and Carlos Muniz,2 who were mainly drivers, Ismael Mendez who was a driver/warehouseman,3 Dagoberto Hernandez who mainly worked in the warehouses, and Robert Harvin who was a helper.4 Additionally, there were five persons who worked in the office, these being Scott Ehrlich, his wife Gina Ehrlich (part-time), Carmelo De Jesus who was an office manager/bookkeeper, Elizabeth Salgado, and Brunhilde, whose last name is unknown to me. In July 1986, while Mendez was closing the ware- house, the door was damaged. Ehrlich blamed Mendez for this and insisted that the latter pay for part of the re- pairs. Mendez did pay $100. The bill was for $243. On 2 September 1986, Muniz, while driving the com- pany van, was stopped by the police and received 13 ci- tations. Twelve of these were for defects in the van. The other was for driving when his license was suspended. In this regard, Muniz' license had been suspended in March 1985 when he was not employed by Ehrlich Beer. On re- ceiving the citations, Muniz turned them over to Ehrlich who then had the van fixed. About 6 September, Mendez was sent to pick up $500 from a customer. At some point later, a dispute arose whether Mendez turned this money into the office. As to this, Mendez testified that about 2 weeks before his dis- charge Ehrlich accused him of not turning in the money. He testified, "I noticed a change in Ehrlich' s attitude toward me. I think he thought I took the money." With respect to the money incident, Ehrlich testified that although the event occurred on 6 September, he first discovered that the money was missing during the week of 22 September when he checked the books. It is Ehrlich's contention that after discovering the discrepan- cy after not receiving a satisfactory explanation from Mendez that he decided to discharge him. According to Mendez he had another dispute with Ehrlich about a week and a helf before his discharge. This involved Mendez not wanting to stay every night to lock up and Ehrlich's insistence that he continue to do so. On 10 September 1986 the Company received a sum- mon's from the city of New York concerning the bottles and cans that the Company had allowed to accumulate on the sidewalk. Because of this citation, Ehrlich asked an employment agency, Mobicentrics, to send over a group of people to clean up the mess. In this regard, Vasquez, an employee of Mobicentrics who has dealt with the Respondent over the years, testified that she was asked to refer some people for temporary jobs. Con- sequently, on 16 September, Mobicentrics referred five persons to the Company all of whom were hired and were put to work cleaning up the empty bottles and cans. These people were Martin Vega, Juan Soto, Angel Lopez, Luis Nieves Morales, and Ricardo Cruz Morales. When they began work they were put under the direc- 2 Minuz originally began working for the Company in May 1984 He left in January 1985 and was rehired as a driver in April 1986 8 Mendez had a key to the warehouse, which he opened in the morn- ing and closed at night He lives within walking distance of the Compa- ny 4 Harvin was originally hired in October 1985 He was laid off in the spring of 1985 and rehired in June or July 1986 tion of Harvin who was one of the Company's regular employees. I note at this point that the Company has two warehouses that are near each other. The main warehouse is for the beer that is to be distributed and this also contains the Company's offices. The other ware- house where the new group of employees was assigned is used to house empty cans and bottles prior to their return to the Respondent's suppliers. Mendez testified that he began speaking to other em- ployees about getting the Union sometime during the week of 21 September 1986. He states that he did so qui- etly in Spanish, which is a language not spoken or under- stood by Ehrlich. If I credit Mendez' account, I must conclude that he did not begin discussing a union until after the two incidents described above and after Ehr- lich's attitude toward him had changed. Thus, I am in- clined to believe, notwithstanding his assertions to the contrary, that Mendez began thinking about getting a union after he began to realize that his job might be in jeopardy. On Wednesday, 23 September, Muniz went to traffic court. He took with him repair bills so as to clear these tickets. The cases, however, were put over to Monday and Muniz was told that he ought not drive until his li- cense was reinstated. On Friday, 25 September, Mendez called the Union and spoke to Anthony Distinti. This was his first contact with the Union while employed at Ehrlich Beer.5 Dis- tinti told him to call back on Monday. Later on Friday, Mendez went to speak to the employees at the empties' warehouse about unionization. (By this time, the bottles and cans had been cleaned from the street and these em- ployees were straightening out the empties' warehouse.) On Saturday, 26 September, Mendez was fired. Ac- cording to Mendez he was called into Ehrlich's office after the employees were given their weekly pay. He states that Ehrlich told him that he was no longer needed. According to Mendez when he asked why, Ehr- lich said that they were not seeing eye to eye, that they needed a vacation from each other, and that perhaps in the future Mendez could come back to work. When Mendez said that he needed a letter for unemployment benefits, Ehrlich told him to come back on Monday. On Monday, 29 September, Mendez went to get his letter. He was told, however, that he did not need a letter and to just tell the unemployment agency that he was laid off because work was slow. When Mendez pro- tested that he should not be laid off for such a reason be- cause of his seniority, Ehrlich told Mendez to do what- ever he wanted. On Monday morning, after visiting the Company, Mendez went over to the union office where he told Distinti of his discharge. At this time Distinti gave Mendez some authorization cards to distribute to other employees. That afternoon, Mendez picked up Muniz at the traffic court and the two returned to the empties warehouse. (Although clearing up the tickets relating to 5 At an earlier time while employed at another company, Mendez had been a member of Local 277 IBT and knew Distinti. EHRLICH BEER CORP. the van, Muniz did not get his license reinstated because he did not have enough money to pay his fine.) According to Mendez and Muniz, about 4 p.m. on Monday, they saw that the people working in the emp- ties warehouse were let off early. They then approached these employees and induced them to sign union authori- zation cards. Mendez and Muniz thereafter went over to the main warehouse where they met Dagoberto Hernan- dez and Felix Zayas. These two employees also signed cards albeit reluctantly. On Tuesday morning, 30 September, Mendez deliv- ered the signed union cards to the Union. According to Distinti, after receiving these cards he sent Mendez over to the Union's lawyer for the purpose of filing an elec- tion petition and an unfair labor practice charge. According to Distinti between 1 and 2 p.m. on Tues- day, 30 September, he made a phone call to the Compa- ny. He testified that he first spoke to a woman who iden- tified herself as Jean Ehrlich to whom he told that he was a union representative; that he represented the Com- pany's employees; and that he wanted to negotiate a con- tract. Distinti states that she then turned over the phone to someone who identified himself as Scott Ehrlich and to whom he said the same things. Both Mr. and Mrs. Ehrlich deny any such phone conversation. On demean- or grounds, I shall credit Distinti in this regard. About 2:15 p.m. on Tuesday, Scott Ehrlich, accompa- nied by Carmelo De Jesus, laid off all the employees working at the empties' warehouse including Robert Harvin. He told them that they were being laid off be- cause his suppliers were not accepting the returns of his empties. He also told them that if he needed their serv- ices in the future he would recall them. As to the assert- ed reason for laying off these employees, I note that under New York law, his suppliers are required to accept the return of empty bottles and cans just as Ehr- lich Beer is required to accept returns from his custom- ers. The persons laid off at this time were Robert Harvin, Martin Vega, Juan Soto, Angel Lopez, Luis Mo- rales, and Richardo Morales. Dagoberto Hernandez and Felix Zayas were kept on. Thereafter, according to Muniz, about 2:40 p.m. he too was told by Ehrlich that he was fired. Subsequent to the discharges, 1 he Union picketed the Company for a few days in early October. Also it filed the instant unfair labor practice charge on 1 October 1986. On 6 October the Company hired an individual named Arthur Graham who basically did Robert Harvin's job. Thereafter on 16 October Mobicentrics referred three employees to the Company, these being Mike Trache, Wilfred Madera, and Roniel Pagan. At the end of Octo- ber these three employees were laid off but Graham was kept on. At the end of November, Trache was rehired and continued to work thereafter. In December 1986, four more individuals were hired including Juan Soto, one of the alleged discriminatees who was laid off on 30 September. I am not certain, based on this record, how long this group worked. III. ANALYSIS 673 As to Mendez, the question is did the Company dis- charge him because of his union activities or did he seek unionization because he had good reason to believe that he was about to be fired? Mendez had been employed by the Company for more than 2 years without any apparent problems until the summer of 1986, when the broken door incident oc- curred. Nevertheless by his own account Mendez was in- volved in two significant disputes with Ehrlich within 2 weeks of his discharge. Thus, Mendez testified that about 2 weeks before he was fired, Ehrlich accused him of taking $500 after which Ehrlich's attitude toward him changed. Mendez also testified about a subsequent dis- pute regarding his having to stay late to close the shop. The significance of those disputes is not who was right, but rather the disputes occurred almost immediately before Mendez began talking to other employees about getting a union.6 Thus the change in attitude that Mendez described Ehrlich as having, could not have been caused by any union activities on the former's part. After Mendez reached the conclusion that Ehrlich be- lieved that he had taken the missing money, Mendez began talking to other employees about getting a union. In this respect, he testified that he did so in a quiet way and in Spanish, a language not spoken by Ehrlich. In fact, there is no evidence that would lead one to the con- clusion that Ehrlich was aware of this activity prior to the discharge of Mendez on Saturday, 27 September. Because of the lack of evidence showing Respondent's knowledge of Mendez' union activities and because of the two disputes described above, I conclude that Re- spondent's decision to discharge Mendez was not moti- vated by illegal reasons. The Respondent asserts that the layoffs of the employ- ees who worked in the empties warehouse were eco- nomically motivated. In this respect, it asserts that these people were tempo- rarily employees who were laid off when the Company's suppliers no longer accepted returns of empty cans and bottles. The fact is, however, that pursuant to New York law, the Respondent's suppliers were required to accept such returns. Therefore the asserted reason for laying off these employees makes no sense to me. Further, as I have credited Distinti's assertion that he, on behalf of the Union, telephoned the Company and spoke to Mr. and Mrs. Ehrlich only minutes before these employees were laid off, I am convinced, based on the totality of the evi- dence, that these layoffs were motivated by antiunion consideration.' 6 I make no conclusion whether Mendez handed in the money r As to Vega, Soto, Lopez, Luis Morales, and Ricardo Morales, I am of the opinion that they were hired for the purpose of cleaning up the bottles and cans on the street and to straighten out the empties ware- house In this respect, the evidence indicates that this was just about fin- ished on 30 September. Thus, although I have concluded that the assert- ed reason for laying off the above -named employees was pretextual, it is apparent that the purpose for which these employees had been hired had largely been accomplished Therefore it is likely that some or all of these people (except for Harvin), would have been laid off soon after 30 Sep- tember notwithstanding their union activities I therefore leave that issue for the compliance state of this proceeding 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I am also of the opinion that the discharge of Muniz was discriminatorily motivated. In his case, the Employ- er testified that he discharged Muniz because Muniz' driving license had been suspended. While appearing to be a legitimate reason superficially, the fact remains that the tickets, including the ticket for driving without a li- cense, were turned over to Ehrlich in early September and Muniz was kept employed until 30 September, basi- cally as a warehouseman. I do not credit Ehrlich's assertion that he first suspect- ed on 24 September that Muniz' license had been sus- pended. I also do not credit his assertion that he did not discharge Muniz immediately on discovering his license problem because he wanted to use Muniz to take care of the other tickets at traffic court. On the basis of the record as a whole and considering the timing of his dis- charge (soon after the telephone call from Union Agent Distinti), I conclude that the discharge of Muniz was motivated by antiunion considerations. However, as Muniz was employed primarily as a driver, I cannot rec- ommend that he be reinstated to that position unless and until his driver's license has been restored.8 CONCLUSIONS OF LAW 1. Respondent Ehrlich Beer Corp. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 277, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Carlos Muniz, Ricardo Cruz Mo- rales, Luis Nieves Morales, Angel Lopez, Juan Soto, Martin Vega, and Robert Harvin because of their union activities, Respondent has violated Section 8 (a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except to the extent heretofore found , the other al- legations of the complaint are dismissed. REMEDY Having found that the Respondent has violated the Act in certain respects, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. With respect to Robert Harvin, it is recommended that Respondent offer him full and immediate reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges previously enjoyed, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination practiced against him, such earnings to be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 298 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 8 In the absence of a proper license, Muniz could be reinstated to a job as a warehouseman or helper NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1982). Additionally, in accordance with Sterling Sugars, 261 NLRB 472 (1982), I shall recommend that Respondent remove from its files any reference to the discharge of Harvin and to notify him in writing that this has been done and that evidence of same will not be used as a basis for future personnel actions against him. As to Carlos Muniz I recommend that Respondent offer him immediate reinstatement to the position of driver on condition that his driver's license has been re- instated. Otherwise, I recommend that he be offered re- instatement to either a position as a warehouseman or helper. In either case such offer should be without preju- dice to his seniority or other rights and privileges previ- ously enjoyed. Insofar as backpay is concerned, I recom- mend that Muniz be made whole, with interest, for any loss of earnings he may have suffered in accordance with the principle set forth above in F W Woolworth Co., 90 NLRB 289 (1950), Florida Steel Corp, 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1982). I also recommend that his record be expunged in the manner described above as per Sterling Sugars, 261 NLRB 472 (1982). With respect to Ricardo Cruz Morales, Luis Nieves Morales, Angel Lopez, Juan Soto, and Martin Vega, I shall recommend that Respondent reinstate these em- ployees to their former positions of employment (tempo- rary warehousemen), if and when such positions are available, without prejudice to their seniority or other rights previously enjoyed. I shall also recommend that backpay be granted to them with interest to the extent that they may have suffered a loss of earnings in accord- ance with the principles set forth above in F W. Wool- worth Co., 90 NLRB 298 (1950), Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1982). Likewise I recommend the same expunction remedy in accordance with Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, Ehrlich Beer Corp., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or laying off employees because of their union support or sympathies. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights to self-organization, to form, join, and assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses EHRLICH BEER CORP or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) In accordance with the remedy section of this deci- sion, offer Robert Harvin, Carlos Muniz, Ricardo Cruz Morales, Luis Nieves Morales, Angel Lopez, Juan Soto, and Martin Vega immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they may have suffered. (b) Remove from its files any references to the dis- charges of the above-named employees and notify them in writing that this has been done and that evidence of the discharges will not be used as a basis for any 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 place of business copies of the attached notice marked "Appendix." i ° Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order, what steps have been taken to comply therewith. For the purpose of determin- ing or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its officers, agents, suc- cessors, or assigns, or any other person having knowl- edge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of 675 the Untied States court of appeals enforcing this Order and may be had on any matter reasonably related to compliance with this Order, as enforced by the court. 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 or- dered 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 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 layoff our employees be- cause of their union activities or other protected concert- ed activities. 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 offer reinstatement to Robert Harvin, Carlos Muniz, Ricardo Cruz Morales, Luis Nieves Morales, Angel Lopez, Juan Soto, and Martin Vega and make them whole for any loss of earnings they may have suf- fered because of our discharges or layoffs of them on 30 September 1986. EHRLICH BEER CORP. 10 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- 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 "