Imperia Foods, Inc.

1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Imperia Foods, Inc. and Local Union No. 277, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO.' Case 2-CA-21582 19 February 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 29 April 1987 Administrative Law Judge Arthur A. Herman issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order as modified.4 i On I November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The Respondent has excepted to some of the judge's credibility find- ings 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 the first par of sec III,B of the judge's decision, the judge inadvert- ently referred to "employees" instead of "employers " In the last par of sec III,B, the judge inadvertently stated "20 March" instead of "25 March " 9 The events leading to the Respondent's move on 24 March 1986 show that the Union first contacted the Respondent about negotiating a contract on 14 March The Respondent's president and co-owner, Ira Weissman, called employee Carmen Mendez on 16 March to ask about the union meeting held the previous day On 17 March the Union's vice president, Jasper Brown, set up a meeting with Weissman for 19 March On 18 March Weissman decided to accelerate the move and made ar- rangements to move into the New Jersey facility during the weekend of 22-23 March Weissman then canceled the 19 March meeting with Brown and did not return Brown's 21 March phone call The Respond- ent commenced the move in the middle of the night during the weekend, shortly after the second shift left the New York City facility In its letter discharging the employees on 24 March, the Respondent thanked the em- ployees for their efforts and wished them luck Given all the foregoing events, which are undisputed, and the employees' credited denial that they had engaged in sabotage or slowdowns, we conclude that the Re- spondent's claim that employee misconduct caused the accelerated move is a pretext disguising its actual motive of seeking to avoid contract nego- tiations with the Union Thus, we agree with the judge that the precipi- tate shutdown of the New York City facility and the discharge of 14 em- ployees were motivated by antiunion considerations in violation of Sec 8(a)(3) and (1) of the Act See Bridgeford Distributing Co, 229 NLRB 678 (1977), Myers Ceramic Products Co, 140 NLRB 232 (1962), Oxwall Tool Co, 135 NLRB 840 (1962), enfd 310 F 2d 878 (2d Cir 1962) We note that the record fails to show that the parties reached a valid impasse in negotiations for a new contract before the Respondent trans- ferred its operations to South Plainfield, New Jersey 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Imperia Foods, Inc., South Plainfield, New Jersey, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(f). "(f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) In his recommended Order, the judge included a visitatorial clause In the circumstances of this case, such clause is unwarranted See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Judy Mmette Sandler, Esq., for the General Counsel. William G. O'Donnell, Esq. (O'Donnell, Fox, Gartner & Sobolewski, P.C.), for the Respondent Ann W. Schulman, Esq. (Cohen, Ghckstein & Lurie), for the Charging Party. DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge. Local Union No. 277, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 277) filed its unfair labor practice charge in this proceeding on 24 March 1986.1 This resulted in the issuance of a complaint and notice of hearing on 30 May. The complaint alleges that Imperia Foods, Inc. (the Respondent) violated Section 8(a)(1), (3), and (5) of the Act by (1) discriminatorily discharging 14 of its unit em- ployees about 15 March because of their membership in Local 277 and for their support for Local 277's demands for a collective-bargaining agreement; (2) accelerating its move to a new location in March without notifying and consulting Local 277; and (3) unilaterally discontinuing paid sick leave benefits for its employees as specified in the collective-bargaining agreement. Respondent's duly filed answer denied the commission of any unfair labor practices This case was tried before me in New York, New York, on 30-31 July, and 4 and 11-12 August. At the trial, all parties were given full opportunity to par- ticipate, and subsequently the General Counsel and Re- spondent filed thorough briefs. On the entire record in the case, and from my observa- tion of the witnesses and their demeanor while testifying under oath, and after careful consideration of the briefs, I make the following i All dates refer to 1986 unless otherwise indicated 287 NLRB No. 126 IMPERIA FOODS 1201 FINDINGS OF FACT I JURISDICTION Respondent, a domestic corporation, is engaged in the nonretail processing, sale, and distribution of cheese and dairy products Prior to 24 March, Respondent main- tained an office and place of business in New York, New York. About 24 March, Respondent moved its operation to South Plainfield, New Jersey, and since said date has continued to operate its business from the New Jersey site. During the 12-month period prior to its relocation, Respondent purchased and received at its New York fa- cility goods valued in excess of $50,000 directly from firms located outside New York State. Based on the above facts, which Respondent admits, I find that Re- spondent has been, at all times material, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. iI. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Local 277 is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Two facts of utmost importance in understanding the events that occurred in March concern the Respondent's desire to move its facility from New York to New Jersey, and Respondent's relationship with Local 277 The uncontroverted evidence presented by Respond- ent, through its president Ira Weissman, established the fact that as early as 1983 Respondent realized that it could not compete with other cheese processors so long as it continued to operate in the antiquated, inadequate quarters that it occupied in New York. And so, Weiss- man devoted quite a bit of time looking around in New York State, Connecticut, and New Jersey for a building more suitable to his needs In April 1985, Weissman called a meeting of his employees and told them that he had contracted to sell the New York facility, but that he had not yet acquired another site. In June 1985, Weiss- man found such a building in South Plainfield, New Jersey;2 he signed a contract in July 1985 to acquire the property, and he took title to the property on 22 Novem- ber 1985. After signing the contract in July 1985 to buy the New Jersey property, Weissman again called a meet- ing of the employees and told them that he was seriously contemplating buying a building in New Jersey, but did not specify the location Respondent proceeded to ren- ovate the facility for its business needs with the expecta- tion that it would move its business to New Jersey in May. Weissman testified that over the years Respondent had been buying used equipment that he stored away Now that he planned to move, he sent one of his em- ployees, Angle Class, as early as January, over to the Jersey facility with the used equipment to get it in shape. 2 Respondent 's present location Weissman claims that he did not make a public an- nouncement to his employees about the move to New Jersey because he was concerned about losing employees if he did so The complaint does not allege, nor does the General Counsel argue, that the planned move in May was violative of the Act As for its relationship with Local 277, Respondent, for the past 30 years, has been a member of the Butter and Egg Association, and for the same amount of time, the Association has bargained industrywide collective-bar- gaining agreements with Local 277 on behalf of its mem- bers, including Respondent, in a unit consisting of chauf- feurs, helpers, dairy and food handlers, egg candlers, egg inspectors, butter packaging employees, egg breakers, and office employees The Association's membership, over the years, consisted of both distributors and proces- sors But in recent years, the number of processors de- clined, leaving only two in the Association during the life of the last contract, which was effective from March 1, 1983, to February 28, 1986. These two were Respond- ent and Zenith and Godley For the past 15 years Weiss- man has been a member of the Association's negotiating committee and, as such, he constantly attempted to con- vince Local 277 that the problems facing the processors were different from those facing the distributors, and that, therefore, the processors needed a separate con- tract Unable to convince Local 277, Respondent decid- ed in December 1985, prior to the commencement of ne- gotiations for a new contract between the Association and Local 277, to notify Local 277 that it was withdraw- ing from the Association Local 277 was aware of Re- spondent's timely withdrawal when it met to negotiate with the Association during January and February. B The March Events Respondent's witness, Stanley Schwartz, the executive vice president of Friendship Food Products, testified that he attended about four of the negotiating sessions, and that it was understood by both the Union and manage- ment representatives that Respondent and the other processor, Zenith and Godley, were seeking separate contracts. He further stated that the last session he at- tended took place on 28 February, and that, as of that date, agreement had been reached subject only to the ap- proval of the terms of the agreement by the various em- ployees bound by the negotiations and the membership of the Union Anthony Distinti, Local 277's president, testified that he was the chief negotiator for the Union and that he knew Respondent wanted a separate contract. He stated that a tentative agreement with the Association was reached on 14 March, and that he scheduled a union membership meeting for 15 March All employees, re- gardless of whether they worked for Butter and Egg As- sociation members or independent employers, such as Respondent, were asked to attend the 15 March meeting and to vote to accept or reject the tentative agreement. In addition, they were asked to cast a ballot authorizing a strike in the event some employers did not want to accept the negotiated terms. A majority of the member- 1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ship voted approval of the terms of the agreement and approval of the strike authorization. Distinti further testified that he called Weissman on 14 March to tell him of the tentative agreement between Local 277 and the Association, and that he asked Weiss- man for an appointment to negotiate a contract for Re- spondent. Weissman told Distinti that he would get back to him to arrange a meeting. Weissman testified that on 14 March he got a call from Distinti, who acknowledged the fact that he knew that Weissman wanted a separate contract, and the two agreed to get together to negotiate, but no date was set. However, Weissman spent the weekend, 15-16 March, preparing himself for negotiations that he expected to have with Distinti. On the night of 16 March, Weissman called Carmen Mendez, an employee, and inquired about the union meeting that was held the day before. He was told that the membership had ratified the contract that the Association had negotiated with the Union, and Mendez told him the money terms contained therein. On Monday, 17 March, Weissman called Distinti and was told that the latter was on vacation . A few minutes later Jasper Brown, Local 277's vice president and business agent, called Weissman back. According to Weissman, Brown told him that the Union had a ratified contract that was just perfect for Respondent. Weissman told Brown that he had arranged with Distinti to negotiate a separate contract. Brown then proceeded to tell Weiss- man the terms of the contract and Weissman protested that he was not a party to that contract. Brown then suggested that he come to the plant to see Weissman. According to Weissman, Brown said that a strike vote had been approved and that if Respondent did not sign this contract, the Union could strike Respondent. Brown then suggested that he come down to the plant to see Weissman, and an appointment was set for Wednesday, 19 March. However, on Tuesday, Weissman was told by his attorney that he had to be in court on Wednesday, and so he notified the union office that he would not be available for Wednesday. Brown testified that on 17 March, he called Weissman to arrange a meeting at which he could show Weissman the contract that was negotiated between Local 277 and the Association.3 An appointment was set for 19 March on Respondent's premises, but when Brown arrived Weissman was not there, and Brown did not have an- other opportunity to show Weissman the Association contract at the New York premises. The first time Weiss- man saw that contract was on 24 March at the New Jersey premises. Brown further testified that he had pre- sented the Association contract to the other processor, Zenith and Godley; the latter made some changes, which were acceptable to Local 277, and the parties signed a separate contract. Weissman testified that on 18 March he asked the gen- eral contractor, who was overseeing the renovation of the New Jersey facility, if it were possible for Respond- 3 Brown admitted, on cross-examination, that he was aware of the fact that Weissman wanted a separate contract, but he still wanted to give Weissman the opportunity of accepting or rejecting the Association agreement. ent to move in over the weekend of 22-23 March. And, although the premises were far from ready for occupan- cy, Respondent did effect its move that weekend. On Monday, 24 March, when the employees reported for work at the New York facility, they found the prem- ises completely vacated. Weissman was there handing out copies of a letter that read, in pertinent part. IMPORTANT NOTICE TERMINATION OF EMPLOYMENT Imperia Foods, Inc. has moved its operations to another state, namely, New Jersey. Therefore, effec- tive NOW, we are terminating your employment. We thank you for your efforts, unfortunately, they were not enough to overcome higher costs, no growth, and stiff lower cost competition. It is a matter of survival. We wish you the best of luck for the future. The Management4 Brown testified that when he was informed by the em- ployees on 24 March of what had happened, he brought picket signs to the New York plant, and he and the em- ployees went to the New Jersey site. Brown spoke to Weissman and gave him a copy of the association con- tract. According to Brown, Weissman wanted to show it to his attorney. Weissman contends that Brown was not interested in negotiating; that all he wanted was to have Weissman sign the contract as it was, and Weissman was not going to do it. According to Brown , picket signs went up at the New Jersey plant after he finished talking to Weissman. Brown came to the plant the next day, 20 March, expecting to see Weissman . But instead, the person who called himself "Hymie" met him and gave back the Association contract unsigned. As stated above, the underlying unfair labor practice charges were filed by the Union against Respondent on 24 March. C. Respondent's Defenses The Respondent's contentions are as follows: 1. Despite the fact that Respondent attempted to meet with Local 277 to negotiate a separate collective-bargain- ing agreement, Local 277 demanded that Respondent sign the Association contract and threatened to strike Respondent if Respondent did not sign. 2. Since the collective-bargaining agreement that ex- pired on 28 February 1986 did not contain any provision for the survival of its terms beyond the expiration date, and Local 277 failed to bargain in good faith, Local 277 4 The following employees were discharged: Pedro Arroyo Felipe Rivera Pedro Astudillo Ramon Ruiz Angel Erazo Elbyn Salazar Pablo Garcia Jose Sanchez Ada Lucas Juan Santiago Carmen Mendez Victor Santiago Miguel Monge Victor Torres IMPERIA FOODS 1203 waived any rights it had to extend the terms beyond 28 February 3. Since Local 277 encouraged Respondent's employ- ees to engage in a work slowdown, to refuse to work overtime, and to sabotage machinery, Respondent was justified in accelerating its move to New Jersey D The Alleged Incidents Engaged in by Employees Respondent contends that during the period of 10-22 March, its employees engaged in acts of sabotage, slow- down, and refusal to work overtime. Weissman testified that on Monday, 10 March, he was informed by his part- ner, Sonny, that he could not get anybody to work on the previous Saturday Weissman then asked each of the employees to work overtime and each one turned him down. Several other witnesses for Respondent, including the office manager, bookkeeper, and a salesman testified regarding a slowdown by the employees, and business records were introduced into evidence to show a decline in working hours and production for the period 10-22 March Angel Class testified that he was asked to fix the filling machine on Sunday, 16 March, because the wires had been cut, and that he was criticized by other em- ployees for fixing it. The General Counsel called several employees as wit- nesses to rebut these accusations, and each one stated that during the crucial period of 10-22 March they had not been asked to work overtime, and that at no time did they slow down in their work. As for the alleged act of sabotage on the filling machine, evidence was introduced by the General Counsel to show that the machine was old and was having trouble for a long time, but that no deliberate act of sabotage was engaged in by the employ- ees. Furthermore, Respondent readily admitted that it never told the Union of the employees' alleged slow- down or refusal to work overtime, and no employees were disciplined for the alleged misconduct Also, no evidence was introduced by Respondent to show that the Union ordered or sanctioned the alleged misconduct. Through the General Counsel's witnesses, it was estab- lished that the past practice regarding overtime had been for management to ask employees if they wanted to work overtime, and it was then their decision to accept or reject the overtime Analysis and Conclusions The General Counsel contends that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by accel- erating its decision to relocate its operations to New Jersey, by discharging 14 of its 16 employees, by unilat- erally discontinuing the paid sick leave benefits provided for in the 1983-1986 collective-bargaining agreement, and by failing and refusing to notify and negotiate and bargain with Local 277 regarding all the above The Repondent contends that its decision to accelerate its move to New Jersey and to discharge its employees was justified because of the improper conduct engaged in by the employee, causing the Respondent to suffer eco- nomic losses. In addition, Respondent contends that since Local 277 threatened to strike while it sought to impose on Respondent the Association agreement, and did not wish to negotiate a separate agreement with Respondent, Respondent was under no duty to notify Local 277 of its actions, nor were the terms of the prior agreement bind- ing on Respondent subsequent to 28 February, its expira- tion date The legal principles involved in the instant case are clear. It is well settled that when an employer, because of economic considerations, decides to close down a plant in one locality and move it to another, such act in itself does not constitute an unfair labor practice. It hardly need be said, however, that when said employer has an existing bargaining relationship with a union, it is fundamental that the employer has a statutory obligation to bargain with the union over the effects of such a move on the employees. In addition, it is equally well settled that an employer who accelerates a decision to relocate its plant in order to avoid bargaining with the collective-bargaining representative of its employees is in violation of Section 8(a)(3) of the Act.5 In the instant case, there can be no question, but that the Respondent's initial decision to relocate to New Jersey was motivated by economic considerations. Its New York plant was antiquated and inefficient, and operational problems had adversely affected its profit picture. The evidence established that Respondent had held two meetings with its employees advising them of a relocation of the plant, and it can readily be assumed that Local 277, as early at December 1985, was aware of the planned relocation in May In fact, the complaint does not allege, nor does the General Counsel argue, that the Respondent's plan to move in May is violative of the Act. As for the employees, some evidence was presented to show that many of them planned to relocate to the new plant, since the distance from their homes to the New Jersey plant was not that much greater, timewise, than their trip to downtown Manhattan to the old plant. The question thus presented is whether the Respond- ent's precipitous action of accelerating its relocation to New Jersey in March was motivated by its desire to rid itself of Local 277, while at the same time, achieve eco- nomic survival The Respondent contends that the evi- dence shows that in the midst of its attempt to negotiate a separate contract with Local 277, its employees, in order to force Respondent to accept the Association agreement , engaged in concerted interference with Re- spondent's production, in that they refused to work over- time, engaged in a slowdown, and caused acts of sabo- tage. The Respondent believes that such interference constitutes an illegal, in-plant strike. Insofar as the over- time is concerned, assuming , arguendo, I find the evi- dence to support Respondent's contention, which I do not, Respondent overlooks a basic flaw in its argument. The concept of partial strikes as being unprotected de- rives from the fact that employees cannot be permitted to impose on the employer their own terms and condi- tions of employment. The Board interprets this to mean that when the overtime refused by employees is volun- tary, it cannot be said that employees are imposing con- 5 Bndgeford Distributing Co, 229 NLRB 678 (1977) 1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ditions on the employer, since the employer has permit- ted employees to decide for themselves whether they wish to work overtime or not. Therefore, since in the in- stant case the overtime is voluntary, the refusal to per- form overtime is a protected concerted activity.6 Moreover, I reject Respondent's contention and I credit the General Counsel's witnesses, who denied em- phatically that they engaged in such activity. When it is considered that Respondent's evidence fails to identify a single employee, or to establish that Local 277 and/or any employee, independently or through a conspiracy, actually engaged in sabotage or other disruptive activi- ties, inference that they did so becomes less significant in its probative value. As for the sabotage, which I doubt occurred, such alleged activity could have been carried out by a single employee, acting on his own behalf and not on behalf of, or in concert with, other employees or Local 277. The Respondent offers no evidence to the contrary. In fact, no evidence was offered by Respond- ent to show that Local 277 either advocated, initiated, or condoned the alleged disruptive activities. And at no time did Respondent ever notify Local 277 of such ac- tivities nor did it assemble the employees to complain to them about the alleged tactics Finally, if such disruptive activities had occurred, I do not believe that the Re- spondent would have given each employee the kind of discharge letter quoted above. Rather than praise them and wish them luck, a letter castigating them for their actions would have been more appropriate. Under the circumstances, I reject Respondent's contention that the employees' disruptive activities caused him to accelerate his move to New Jersey. The Respondent further contends that Local 277's ada- mant attitude in wanting Respondent to sign the Associa- tion contract rather than a separate agreement, relieved Respondent of the obligation to notify Local 277 of the accelerated move and the discharge of its employees, and of its obligation to meet and bargain over the move and a new agreement. I disagree. The law is well settled that the duty to bargain in- cludes the duty to meet and negotiate in good faith This is not an issue so much of the Respondent's good faith, but rather of whether the evidence available to the Re- spondent is so overwhelmingly convincing of Local 277's bad faith that the Respondent need not take the minimal step required by the statute of meeting with Local 277 face to face and telling Local 277 in what ways it regards its demands as unreasonable The mere fact that Local 277 had a vote of confidence from the employees allowing it to call a strike if need be, and even that Local 277 threatened to exercise that right, does not give Respondent license to rid itself of its obli- gation to meet and negotiate Even if what appeared to be an uncompromising attitude by Local 277 toward a separate agreement did exist, as alleged by Respondent, it still did not give Respondent permission to walk away without negotiation. The good faith of Local 277 was easily capable of a test by Respondent. The record shows that on 14 March, Distinti agreed to meet with Weissman to negotiate, but no date was set. On 17 March, despite Brown's insistence that the Association contract was perfect for Respondent, he agreed to meet Weissman on 19 March, but Weissman canceled the ap- pointment No further discussion took place between Re- spondent and Local 277. Rather, on 18 March, Respond- ent was making inquiries of the general contractor as to the feasibility of moving to New Jersey on 22-23 March. Certainly the facts do not conjure up an image of unwill- ingness to negotiate on the part of Local 277 Respond- ent would have had only to meet and negotiate to test whether, in fact, Local 277 was as intransigent as Re- spondent contends I believe that Respondent had the duty to take at least one more step and put its belief to the test. Not having done that, Respondent was not re- lieved of its duty to bargain. Under the circumstances, I find that by accelerating to March the transfer of its entire operation from New York to New Jersey and by discharging almost all of its employees, Respondent en- gaged in unlawful discriminatory conduct in violation of Section 8(a)(3) and (1) of the Act. Also, I find that by refusing to bargain collectively with Local 277, the lawful representative of Respondent's employees, regard- ing its accelerated move to New Jersey, Respondent en- gaged in unlawful conduct in violation of Section 8(a)(5) and (1) of the Act. Finally, Respondent contends that since the last collec- tive-bargaining agreement, which expired on 28 Febru- ary 1986, did not contain a clause providing for the sur- vival of any of its terms beyond the expiration date, its unilateral discontinuation of paid sick leave benefits as provided in the contract did not constitute a violation of the Act. Such an argument is incomprehensible. It is well settled that Section 8(a)(5) of the Act, which makes it an unfair labor practice for an employer to refuse to bargain collectively with its employees' representative, precludes an employer from unilaterally changing terms and condi- tions of employment that constitute mandatory subjects of bargaining 7 It is equally well settled that an expired contract continues to define the status quo as to wages and working conditions and that an employer is required to maintain that status quo until the parties reach a new agreement or bargain to impasse.8 It is further well set- tled that health benefits constitute terms and conditions of employment that survive the expiration of the con- tract and cannot be altered without bargaining.9 In the instant case, neither a new agreement was reached nor an impasse arrived at As a matter of fact, not once did the parties sit down at the bargaining table. Under the circumstances, Respondent had no right to unilaterally discontinue the health benefits provided for in the expired contract and, by doing so, it violated Sec- tion 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1 Respondent, Imperia Foods, Inc. is, and at all times material has been, an employer engaged in commerce 7 NLRB P Katz, 369 U S 736 (1962) 8 NLRB v Cauthorne, 691 F 2d 1023, 1025 (D C Cir 1982), NLRB v 8 Dow Chemical Co, 152 NLRB 1150 (1965), Jasta Mfg Co, 246 Carilh, 648 F 2d 1206, 1214 (9th Cir 1981) NLRB 48 (1979), enfd 634 F 2d 623 (4th Cir 1980) 8 Auto Fast Freight, 272 NLRB 561 (1984) IMPERIA FOODS 1205 and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Local Union 277, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is, and has been at all times material, a labor or- ganization within the meaning of Section 2(5) of the Act 3 The following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All chauffeurs, helpers, dairy and food handlers, egg candlers, egg inspectors, butter packaging em- ployees, egg breakers and office employees em- ployed by Respondent, excluding guards, profes- sional employees and supervisors as defined in the Act. 4. At all times material , Local 277 has been the exclu- sive bargaining representative of all employees in the ap- propriate unit described above. 5. Respondent violated Section 8(a)(3) and (1) of the Act by accelerating its decision to relocate its plant and by discharging 14 of the 16 employees in the appropriate unit 6. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing the paid sick leave and benefits provided for in the 1983-1986 collective-bargain- ing agreement. 7. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to notify, negotiate, and bar- gain with Local 277 regarding the accelerated reloca- tions, the discharge of 14 of its 16 employees, and the unilateral discontinuance of the paid sick leave benefit 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5), (3), and (1) of the Act, I will recom- mend that Respondent be required to cease and desist therefrom, and that it take certain affirmative action de- signed to effectuate the policies of the Act Having found that Respondent unlawfully discharged employees- Pedro Arroyo Felipe Rivera Pedro Astudillo Ramon Ruiz Angel Erazo Elbyn Salazar Pablo Garcia Jose Sanchez Ada Lucas Juan Santiago i o Carmen Mendez Victor Santiago Miguel Monge Victor Torres I will recommend that Respondent be ordered to the employees immediate and full reinstatement to offer their former jobs of, if their jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges, and make them 10 Juan Santiago died after he was discharged whole for any loss of earnings they may have suffered from the time of their discharge to the date of their offer of reinstatement The loss of earnings shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing Co , 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977) Having found that Respondent unlawfully accelerated the relocation of its plant to New Jersey, I will recom- mend that, on request, Respondent shall bargain collec- tively with Local 277 for all of the employees in the ap- propriate unit at the relocated plant. Having found that Respondent has unlawfully and uni- laterally changed certain terms and conditions of em- ployment following the expiration of the 1983-1986 col- lective-bargaining agreement, namely, paid sick leave benefits, in derogation of its ongoing obligation to bar- gain withLocal 277 about any such changes, I will rec- ommend that Respondent pay such sums as would have been paid pursuant to the agreement, until such time as the Respondent and Local 277 negotiate in good faith to a new agreement or to an impasse. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Imperia Foods, Inc., South Plain- field, New Jersey, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging employees because of their activities on behalf of Local 277, or any other labor organization (b) Withdrawing recognition and refusing to bargain with Local 277 as the exclusive representative of its em- ployees in the appropriate unit described above. (c) Unilaterally discontinuing paid sick leave benefits due the unit employees under the terms of the collective- bargaining agreement. (d) 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) Offer Pedro Arroyo, Felipe Rivera, Pedro Astu- dillo, Ramon Ruiz, Angel Erazo, Elbyn Salazar, Pablo Garcia, Jose Sanchez, Ada Lucas, Carmen Mendez, Victor Santiago, Miguel Monge, and Victor Torres im- mediate and full reinstatement to their former positions without prejudice to their seniority or, if those positions no longer exist, to substantially equivalent positions with- out prejudice to their seniority or other rights previously enjoyed, and make them, and Juan Santiago's heirs, whole for any loss of pay or other benefits suffered by reason of the discrimination against them in the manner described above in the remedy section. 11 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 1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) On request, bargain with Local 277 as the exclu- sive representative of the employees in the appropriate unit described above. (c) Reinstate the paid sick leave benefits contained in the 1983-1986 collective-bargaining agreement, and pay such sums as would have been paid pursuant to this agreement, until such time as a new agreement is negoti- ated or an impasse reached (d) 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. (e) Post at its business in South Plainfield, New Jersey, copies of the attached notice marked "Appendix."12 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Re- spondent's authorized representative, 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 12 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 " 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. The Act gives employees the following rights. To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or pro- tection. To refrain from the exercise of any or all such activities. WE WILL NOT discharge you because of your activities on behalf of Local 277, or any other labor organization. WE WILL NOT withdraw recognition or refuse to bar- gain with Local 277, your collective-bargaining repre- sentative. WE WILL NOT discontinue your paid sick leave bene- fits. 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 Pedro Arroyo, Felipe Rivera, Pedro Astudillo, Ramon Ruiz, Angel Erazo, Elbyn Salazar, Palbo Garcia, Jose Sanchez, Ada Lucas, Carmen Mendez, Victor Santiago, Miguel Monge, and Victor Torres reinstatement to their former positions or if those positions no longer exist to substantially equivalent jobs, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Pedro Arroyo, Felipe Rivera, Pedro Astudillo, Ramon Ruiz, Angel Erazo, Elbyn Salazar, Pablo Garcia, Jose Sanchez, Ada Lucas, Carmen Mendez, Victor Santiago, Miguel Monge, Victor Torres, and Juan Santiago's heirs whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them, plus interest. WE WILL on request, bargain with Local 277 as your collective-bargaining representative regarding rates of pay, hours of employment, and other terms and condi- tions of employment and, if any understanding is reached, embody such understanding in a signed agree- ment. WE WILL reinstate the paid sick leave benefits that were contained in the 1983-1986 collective-bargaining agreement, and pay such sums as would have been paid pursuant to the agreement, until such time as a new agreement is negotiated or an impasse reached. IMPERIA FOODS, INC.