Las Villas Produce, Inc.

Jose A. Garcia 13,607.07 Alvaro Garza 35,668.23 Gilberto Gomez 2,171.59 Rafael Maldonado 69,496.81 Carmelo Marquez 34,088 09 Luis Rios 48,795 37 Ramon Rivera 18,327.84 Eulogio Rocha 22,153.56 Jacinto Roman 77,408.37 Alberto Diaz 735.61 Antonio Fernandez 27,468.58 Jose R. Medina 35,137.94 Ramon Padilla 4,430.64 Marion Portillo 452.50 Rafael Reyes 18,917.49 Edwin Rodriguez 7,411.04 Efrain Roldan 55,821.99 Caledomo Santiago 12,736.71 Ismael Vasquez 46,128.16 Miguel Velasquez 9,582.65 Wilfredo V elasquez 7,636.16 Carlos Velez 3,560.31 Gustavo Chavez 17,034.40 Antonio Diaz 2,305.74 Gregono Diaz 1,785.95 Ramon Fiallo 1,989 70 Antonio Lozada 22,053.32 Rafael Rivera 23,762.12 Juan A. Lozada 12,052.96 Felix Maysonet 10,463 80 Jorge Razo 256.86 Uriel Cintron 13,808.88 Herman Correa 785.68 Louis Maldonado 8,051.78 Health and Welfare Fund Payments and Pension Fund Payments Health and Welfare Fund Payments Pension Fund Payments Louis Maldonado $ 294 $ 301 Gustavo Chavez 924 946 Antonio Diaz 84 86 Antonio Lozada 2,184 2,236 Juan A Lozada 588 602 Felix Maysonet 553 567 Antonio Fernandez 1,442 1,478 Jose R Medina 2,665 2,730 Ramon Padilla 74 76 Rafael Reyes 874 896 Edwin Rodriguez 259 266 Efrain Roldan 3,141 3,219 Caledorno Santiago 481 494 Ismael Vasquez 3,775 3,870 Miguel A Velasquez 444 456 Wilfredo Velasquez 296 304 Francisco Cruz 32 33 Jose A Garcia 596 614 Alvaro Garza 2,086 2,139 Unel Cintron 751 774 LAS VILLAS PRODUCE 915 Las Villas Produce, Inc. and Produce, Fresh & Frozen Fruits & Vegetables, Fish, Butter, Eggs, Cheese, Poultry, Florists, Nursery, Landscape and Allied Employees, Drivers, Chauffeurs, Warehousemen and Helpers Union, Chicago and Vicinity, Local 703, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 13-CA-19903 23 October 1984 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 27 July 1984 Administrative Law Judge Bruce C. Nasdor issued the attached supplemental decision. The General Counsel and the Respondent filed exceptions and supporting briefs, and the Gen- eral Counsel filed an answering brief to the Re- spondent's exceptions. 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,' and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Las Villas Produce, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall pay to its unit em- ployees the amounts of net backpay, health and welfare fund, and pension fund payments specified in the appendix to this Supplemental Decision and Order, with interest on the net backpay as comput- ed in Florida Steel Corp., 231 NLRB 651 (1977), and interest on the health and welfare and pension fund payments according to Mertyweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). 1 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 APPENDIX Net Backpay Payments Francisco Cruz $ 2,904.54 272 NLRB No. 142 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Health and Welfare Fund Payments and Pension Fund Payments—Continued Health and Welfare Fund Payments Pension Fund Payments Gilberto Gomez 96 99 Rafael Maldonado 4 595 4 715 Carmelo Marquez 2 041 2 099 Luis Rios 2 564 2 636 Rafael Rivera 1 227 1 263 Ramon Rivera 781 804 Eulogio Rocha 1 190 1 225 Jacinto Roman 4 402 4 518 SUPPLEMENTAL DECISION STATEMENT OF THE CASE BRUCE C NASDOR Administrative Law Judge This case was tried at Chicago Illinois on October 11 12 and 13 1983 On March 31 1982 an administrative law judge issued his decision in this proceeding finding that Respondent had violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) by abrogating its collec tive bargaining agreement with the Union On May 4 1982 the National Labor Relations Board adopted the judge s findings and ordered Respondent to make whole all unit employees for any losses suffered as a result of Respondent s failure to recognize and abide by the terms of the collective bargaining agreement Thereafter on December 2 1982 the United States Court of Appeals for the Seventh Circuit enforced the Board s Order in full On February 28 1983 the Regional Director for Region 13 issued a backpay specification and notice of hearing setting forth the computations of gross and net backpay and the benefit fund payments due to the Union on behalf of the bargaining unit employees Respondent filed its answer to the backpay specification and two amendments thereto on March 16 29 and 30 1983 The supplemental hearing was intended to resolve the backpay due unit employees pursuant to the 1979-1982 contract between the Market Services Association and the Union and the benefit fund payments required under the Market Agreement The backpay period is from No vember 9 1979 through March 31 1982 the date that the Market Agreement expired On the entire record 1 including my observation of the demeanor of the witnesses and after due consideration of the briefs I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW Counsel for the General Counsel concedes that only two classifications of employees were employed by Re spondent in the bargaining unit during the backpay period—drivers and helpers The specification alleges that Respondent employed at various times during the backpay period 28 helpers and 7 drivers who are entitled to backpay Paragraph III of the specification enumerates these unit employees At the hearing Respondent ad duced evidence that Calendonio Santiago was a cook and that Antonio Diaz Gregono Diaz and Louis Mal donado were janitors Thus Respondent avers that they are not entitled to backpay because they were neither helpers nor drivers and therefore not in the bargaining unit Respondent contends that for a substantial portion of their workday drivers help load their trucks a func tion normally performed by helpers Therefore Re spondent contends that the drivers should be compensat ed at the helper s rate during the periods when they were not actually driving Moreover Respondent con tended that since Gilberto Gomez was employed as a helper rather than as a driver his backpay should be cal culated at the lower helper rate Respondent does not dispute the computation of the number of regular hours (40) worked by its employees or of the benefit payments owing on their behalf con tamed in the amended backpay specification However Respondent denies that employees worked an average of 15 hours of overtime per week Monday through Friday and takes the position that employees rarely if ever worked overtime It also denied that employees worked an average of 8 hours on Saturdays during the backpay period Rather Respondent contends that the only em ployees who ever worked on a Saturday during the backpay period were Alvaro Garza Jacinto Roman Ismael Vasquez Antonio Diaz Bregano Diaz Antonio Lozado and Herman Correa The gross pay computa tions as set forth in the backpay specification are based on a formula providing that during the backpay period employees worked an average of 55 hours per week from Monday through Friday 8 hours Saturday and 8 hours on each of the 9 holidays set forth in the Market Agreement Respondent stipulated that all unit employ ees worked on Washington s Birthday Veteran s Day and their birthdays t e three of the nine contractual holidays Respondent denied that employees except for certain unusual exceptions worked on any of the remain ing contractual holidays Respondent admitted that Ja cinto Roman and Ismael Vasquez worked on Thanksgiv ing 1981 and that Juan Lozado worked on Memorial Day 1981 The parties are in agreement that there are no issues to be resolved with respect to offsetting amounts to gross backpay The parties stipulated to the amounts owed by Re spondent to the health and welfare fund and to the pen mon fund 2 The unit determinations made with respect to the employees Respondent contends are janitors and a cook will affect whether payments should be made to the benefit funds on their behalf Board Agent Craig Wilson who has been engaged in compliance work for 3 1/2 years testified with respect 1 Counsel for the General Counsel s unopposed motion to correct the transcript is granted 2 See G C Exh 2 in this regard LAS VILLAS PRODUCE 917 to the preparation of the backpay specification and the gross backpay formula He commenced his compliance investigation by reviewing Respondent's payroll records with Respondent President Camelo Caldero and his wife Ada, who maintains the payroll records and prepares the payroll Respondent made records available for the period No- vember 1979 through November 1981 They reflected that employees were paid a weekly salary, but did not indicate the number of hours worked by employees on any given day or week. William Hamilton of the Illinois Department of Labor was called by the General Counsel to testify regarding his investigation of Respondent's fail- ure to comply with the State's labor laws concerning overtime. His investigation was conducted from Septem- ber 2 through November 16, 1981, and covered the period June 1, 1979, through September 2, 1981. From his investigation of Respondent's records he concluded that Respondent did not keep accurate records (see G C. Exh. 9 and 10) and he could not "decipher Respondent's records with any certainty." Respondent paid its employ- ees a fixed salary for fluctuating hours. Respondent in a letter dated December 21, 1981, and signed by Respond- ent President Caldero admitted that it did not keep records of hours worked by the employees.3 Because Respondent's records were totally unreliable, the gross backpay formula was determined from employ- ee interviews, data gathered by the Illinois Department of Labor, and interviews with Respondent's representa- tives. Many employees testified that they worked on the av- erage of 11 hours per day, Monday through Friday, or 55 hours per week. Respondent President Caldero testified in an effort to support the proposition that employees did not work an average of 15 hours' overtime per week. Accordingly, he testified that throughout the backpay period he closed the warehouse at 3:30 p m. and employees did not work more than 8 hours per day with staggered starting and stopping times Illinois Department of Labor Compliance Officer Hamilton's memorandum (G.C. Exh. 10) reflects that Caldero admitted to him that some employees were scheduled to work more than 40 hours per week. Cal- dero admitted in his testimony that he did not know what time the drivers finished making their deliveries, or how many hours they worked, because of the fact that they frequently took their trucks home with them at the end of the workday. Caldero testified, and documenta- tion reflected, that employees started work at 6 a.m. and punched out after 3:30 p.m. Respondent installed a timeclock at its premises in No- vember 1981 Although in its brief counsel for Respond- ent makes reference to the cavalier attitude displayed by the employees toward the timecards, the evidence dem- onstrates an equally cavalier attitude by Respondent. Respondent contends that the demands in the backpay specification for payments to certain members in the bar- gaining unit for overtime work during the normal work- week, and on Saturdays and certain holidays, should be rejected because these individuals did not testify. The See 0 C Exh 18 General Counsel points out that, in computing the over- time hours worked, an average number was developed for the gross backpay formula. For example, if an em- ployee worked 1-1/2 hours per week during lunch break during the latter 4 months of the backpay period, this would be insufficient to reduce the average number of overtime hours worked over the entire backpay period. Moreover, as to seven employees who were employees after the installation of the timeclock but did not testify, Maldonado was employed as a driver and Maysonet's testimony and the testimony of Caldero reflect that driv- ers generally worked more than 55 hours per week. Nev- ertheless, Maldonado's backpay was computed according to the general formula. Furthermore, Antonio Diaz was credited with 2.5 hours of overtime for the 5 weeks he worked in the fourth quarter 1982. Gregono Diaz was credited with only 4.75 hours of overtime for the 3 weeks he worked in the fourth quarter 1981, and no overtime hours for the 2 weeks he worked in the first quarter 1982 There are but two examples and, interest- ingly, in its answer Respondent attributes more overtime to these and other individuals than the General Counsel is alleging. Respondent proposes that any formula should take into account a lunch period of one-half hour. The preponder- ance of the evidence reveals that, for the first 2 years of the backpay period, employees ate lunch at the work- place while working, and received no formal lunchbreak. The employees who worked after the installation of the timeclock testified that after November 1981, the date the clock was installed, they were given one-half hour for lunch. Pursuant to the gross backpay formula employees are alleged to have worked an average of 8 hours on Satur- days throughout the backpay period. Saturday and holi- day hours are paid double the hourly rate. Several em- ployees testified that they worked an average of 8 hours every Saturday at least until the installation of the time- clock. One employee, Ismael Vasquez, testified he worked only 2 or 3 hours on Saturday before the instal- lation of the timeclock. The agreement requires that em- ployees called in to work on Saturdays must be paid a minimum of 4 hours of double time. The General Coun- sel recognizes that the backpay specification alleges that Vasquez worked only 6 hours on Saturdays and does not therefore oppose the reduction in his backpay award in the amount of $3,045 75. The substance of Caldero's testimony of cross-exami- nation is that throughout the backpay period employees worked on Saturdays, basically performing the same work they performed during the week. He also admitted, finally, that more than two or three employees worked on Saturdays before and after the installation of the time- clock. Respondent takes the position that the Saturday crew fluctuated and the most equitable formula would be to credit employees, not including the drivers, with 8 hours of overtime worked every other Saturday. Employee witnesses testified generally that they worked an average of 8 hours on the six holidays set forth in the contract which are not covered by the stipu- lation. Jacinto Roman testified that he was told to stay 918 DECISIONS Ov NATIONAL LABOR RELATIONS BOARD home once because it was a holiday on the Fourth of July 1981 Joses Medina testified that he worked all the contractual holidays and was told to stay home only once Christmas 1981 Therefore the General Counsel would reduce the backpay of each of these individuals $174 56 Caldero testified that he was closed on approximately 12 holidays each year although the agreement designates only six holidays in addition to the three that Respond ent stipulated it remained opened He 'further testified that during the backday period only once did an employ ee work at his request He did admit later on cross exam mation that on Thankgiving 1981 at least two employees worked Moreover he explained that his wife was re sponsible for the work schedules of the employees from mid September to mid December 1981 because he was in Puerto Rico during that period It is noted that the Ii linois Department of Labor investigation took place during this same penod and documentary evidence re flects that Caldero was at work and not in Puerto Rico during November 1981 (See eg GC Exh 11) Re spondent was unable to produce payroll records for the period after November 1981 or offer any documentary evidence or witnesses to buttress Caldero s testimony with respect to holidays Conclusion and Analysis Respondent was unable to provide reliable records re fleeting hours worked by employees or to detail specific days worked Therefore the gross backpay formula evolved from employee and Respondent interviews and evidence provided by the Illinois Department of Labor including record testimony Employees testified in a manner that did not limit their responses to only personal or individual work habits and practices Rather they presented an overview relating to the employee complement as an entity Thus it was un necessary to present each and every employee and therefore Respondent s reliance on a case arising under the Fair Labor Standards Acts Wirtz v Minton Render mg Co 54 LC Tf 31 876 (N D Tex 1966) is inapplica ble Accordingly in my opinion the gross backpay formu la as set forth in the backpay specification is appropnate and legally sound The employees who testified with respect to their overtime hours worked Monday through Friday are credible They impressed me as being honest and forth right By contrast the testimony of Caldero was uncon vincing and implausible I do not accord it any weight in fixing the average number of hours employees worked The weight of the evidence reflects that employees ate lunch at their work stations while working and did not receive a lunch period at least for the first 2 years of the backpay period After the timeclock was installed No vember 1981 they were given a one half hour lunch break Vasquez the only employee still employed by Re spondent was a witness whose credibility was highly suspect It was apparent to me that there was a false coloring to this testimony and an effort to distort the truth to favor his employer I deem him an incredible witness Prominent is the testimony of the Department of Labor representative Hamilton that during the course of his investigation Caldero admitted that employees were required to work more than 40 hours per week The preponderance of the evidence discloses that em ployees averaged 8 hours on Saturday before and after the inception of the timeclock Respondent admitted in its answer that Herman Correa Antonio Diaz and Gregono Diaz worked Satur day hours Accordingly they are entitled to additional compensation as follows Herman Correa—$329 12 for a total of $805 68 Antonio Diaz—$256 39 additional Gregono Diaz—$147 29 additional All other employees alleged are entitled to Saturday overtime as Respondent has presented no evidence doe umentary or otherwise to refute the General Counsel s record proof Jose Medina s and Jacinto Roman s net backpay should be reduced $174 56 for each of them since they acknowledged not working on a holiday 4 Based on the totality of the evidence I conclude that the employees worked on the holidays alleged in the backpay specification Wilson the Board agent who conducted compliance explained why he concluded that Gilberto Gomez was a driver Respondent normally employed two or three dnvers Wilson by utilizing Respondent s weekly payroll summary sheets and subtracting the salaries of the admit ted drivers from the total dnver payroll the remainder matched the salary listed solely for Gomez Respondent s only classifications of employees were drivers and help ers and again Respondent had no records relating to the classification of Gomez Accordingly I find and conclude that Gomez was em ployed as a driver Respondent contended that Santiago was a cook and Maldonado Antonio Diaz and Gregono Diaz were maintenance employees Stroud the Charging Union s business agent and trust ee testified that employees employed by Respondent and other produce concerns covered by the same agree ment regularly performed cleaning tasks such as sweep ing and picking up broken crates and produce as well as hosing down the warehouse areas and the docks More over there are employees employed by employers under the agreement who performed only janitorial work and all the employees who handled produce in the course of their work were covered by the agreement Employees testified that they had observed Maldonado working on the floor as a helper loading trucks in addition to per forming some cleaning duties Caldero admitted that unit employees performed cleaning work while employed by Respondent Accordingly I conclude that these three employees were helpers and are included in the appro pnate bargaining unit 4 Medina Christmas 1981 and Roman July 4 1981 LAS VILLAS PRODUCE 919 Respondent, by Caldero, would have me believe that Santiago was employed for the sole purpose of cooking lunch for employees. There is an abundance of testimony that employees who worked during the time Santiago worked made no reference to Santiago cooking lunch or Respondent providing free hot lunches for employees. Rather, employees testified that they brought their lunch or bought sandwiches from a vendor in a truck. I do not believe that Respondent provided this incredible fringe benefit. Accordingly, I find that Santiago should be in- cluded in the appropriate unit. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 5 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 ORDER The Respondent, Las Villas Produce, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall pay the following. I have determined that the gross backpay formula as set forth in the backpay specification is appropriate. I therefore conclude that Respondent owes the unit em- ployees backpay as alleged in the specification as modi- fied, and owes the benefit funds the payments stipulated to by the parties Moreover, in addition to these amounts, Respondent shall pay interest thereon to be computed in the manner prescribed in E W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).6 Board and all objections to them shall be deemed waived for all pur- poses 6 See generally Isis Plumbing Co, 138 NLRB 716 (1962)