Federal Dairy Co., Inc.

National Labor Relations Board - Board DecisionsApr 19, 1963

142 N.L.R.B. 133 (N.L.R.B. 1963)

FEDERAL DAIRY COMPANY, INC. 133 All bricklayers , masons, and plasterers employed by said employer -members exclusive of executives , guards, and supervisors as defined by the Act. WE WILL NOT in any manner restrain or coerce any employer who is a member of, or represented by, the said Institute in the selection of the said Institute or any other person , group, corporation , organization or, association as a representative for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT give effect or enforce or attempt to enforce our individual contracts with members of the above -named Institute which were executed on and after May 2, 1962. THE WESTCHESTER COUNTY EXECUTIVE COMMITTEE REPRESENTING THE SUBORDINATE UNIONS NUMBERS 20, 22 , 27, 48, 51, 55, 75 AND 83, OF THE BRICK- LAYERS, MASONS & PLASTERERS INTERNATIONAL UNION OF AMERICA OF WESTCHESTER AND PUTNAM COUNTIES, Labor Organization. Dated- ------------------ By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced , or covered by any other material. Federal Dairy Company, Inc. and Local - Union No. 64 , Inter- national Brotherhood of Teamsters, Chauffeurs , Warehouse- men and Helpers of America. Case No. 1-CA-3115. April 19, 1963 SUPPLEMENTAL DECISION AND ORDER On December 28, 1962, Trial Examiner Phil Saunders issued his Supplemental Intermediate Report in the above-entitled proceeding, as set forth in the attached Supplemental Intermediate Report, in which the finding was made that employees Wilson Brown, Carmine Lopez, James P. Fay, and Ralph Regine were entitled to backpay, and recommending that Wilson Brown be awarded backpay in the amount of $1,644.54; Carmine Lopez be awarded backpay in the amount of $1,890.30; James P. Fay be awarded backpay in the amount of $2,919.25; and that Ralph Regine be awarded backpay in the amount of $5,988.59.' The Respondent filed exceptions to the Sup- plemental Intermediate Report of December 28, 1962, and supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- 1 The Board , by Decision and Order of March 3 , 1961 , Federal Dairy Company, Inc., 130 NLRB 1158, directed the Respondent to make whole certain employees for their losses resulting from the Respondent 's unfair labor practices. 142 NLRB No. 17. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mental Intermediate Report and the entire record in the case, in- cluding the exceptions and brief, and hereby adopts the finding-,, conclusions, and recommendations of the Trial Examiner, except as specifically modified herein. It was stipulated that Fay was offered reinstatement by letter dated December 30, 1961, requesting that he report for work on January 4, 1962. The Trial Examiner finds, and the record supports such finding, that Fay reported to work on January 5 and 6, 1962, after assisting his foreman with a milk delivery, Fay returned to the Respondent's premises where he was assaulted with resultant hospitalization. Subsequently,. on February 10, 1962, Fay received another letter of reinstatement requesting that he report for work on February 19, 1962. As the record does not show that the Respondent was in any man- ner implicated in the hospitalization of Fay, the backpay period of this employee should end on January 4, 1962, and we direct the Regional Director to recompute this employee's backpay accordingly. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner except as follows: The backpay of James P. Fay shall be computed from April 5, 1960, to January 4, 1962. SUPPLEMENTAL INTERMEDIATE REPORT STATEMENT OF THE CASE This supplement proceeding to determine backpay, with all parties represented, was heard before Trial Examiner Phil Saunders in Providence, Rhode Island, on October 15, 1962, on the specification of the General Counsel and answer of Federal Dairy Company, Inc., herein called the Respondent or the Company. Gen- erally, the issues litigated were the amounts of backpay due, if any , from the Re- spondent to Wilson Brown , James Fay, Carmine Lopez, and Ralph Regine.1 All parties were afforded full opportunity to examine and cross -examine witnesses, to introduce evidence, and to present oral argument . A brief was received from the General Counsel, and upon my observation of the witnesses , their testimony, the exhibits, and upon the entire record in this case I make the following findings and conclusions: 1. BACKGROUND AND PLEADINGS On March 3, 1961, the Board issued its Order directing the Respondent to make whole certain employees for their losses resulting from the Respondent 's unfair labor practices . On December 8, 1961, the United States Court of Appeals for the First Circuit issued its decree enforcing , as modified , the Board 's findings in the above pro- ceeding. In general respects the backpay specification by the General Counsel utilizes a formula traditionally applied by the Board in proceedings of this kind. Specifically, the specification set forth the following: 1In addition to these four employees, the backpay specification as issued in September 1962, also contained allegations for backpay as to employees Croce, Insana, Frank Regine, Sacoccio, and Ysenbart. Subsequently, the parties entered into a signed stipulation as to the exact amounts due each of the above-mentioned discriminatees, and thereupon, the General Counsel flied with the Trial Examiner a motion to dismiss so much of the back- pay specifications as referred to the above individuals. The motion was granted by the Trial Examiner on November 27, 1962, and therefore, these discriminatees are not dis- cussed in this report. FEDERAL DAIRY COMPANY, INC. 135 (a) An appropriate measure of the weekly wages each of the retail drivers would have earned is the average weekly earnings of other retail drivers during the backpay period. (b) The average weekly earnings of the retail drivers during the backpay period were $75.00. (c) An appropriate measure of the weekly earnings of the wholesale drivers, foremen and route foremen is the average weekly earnings of these employees during the six months immediately preceding the backpay period. (d) The quarterly gross backpay for each discriminatee was determined by multiplying the number or weeks applicable to each quarter of the backpay period of each discriminatee by the average weekly earnings he would have re- ceived during such quarter. (e) Calendar quarter net interim earnings is the difference between calendar quarter interim earnings and calendar quarter expenses. (f) Calendar quarter net backpay is the difference between calendar quarter gross backpay and calendar net interim earnings. (g) The total net backpay due each discriminatee is the sum of the calendar quarter amounts of net backpay due him. II. THE INDIVIDUAL CLAIMS LITIGATED; FINDINGS AND CONCLUSIONS Wilson Brown: The specification alleges that Brown's backpay period begins April 5, 1960, and ends January 19, 1962, but it is admitted by the General Counsel that Brown's net interim earnings for each quarter subsequent to the second quarter of 1961 exceeded his gross backpay for each corresponding quarter. In accordance therewith it is alleged that the amount of backpay due Brown under this formula totals $1,644.54. The parties stipulated that Brown was first employed by the Respondent on January 4, 1960, as a driver on their retail route, and also that he was offered rein- statement to his job by the Company by a letter dated January 11, 1962, and asked to report in that letter on January 19, 1962.2 The Respondent's sales manager and treasurer, Angelo Almonte, testified that the plant had 11 retail routes prior to the strike, and had 2 foremen and Supervisor Lopez. Almonte further stated that the Company then had a reduction in retail routes and that the first one was taken off on March 10, 1960, and as a result the position of supervisor was eliminated, so had Lopez returned he would have replaced one of the foremen, and Medeiros who was the most recent driver, would have been out of a job, and that since one route had also been taken off Brown would be without employment. In accordance with this testimony the Respondent contends that since Brown was the second last man hired as a retail route driver before the strike, Brown would have lost his job because Super- visor Lopez would have returned to work as a foreman and replaced one of the then existing foremen, and this latter foreman would then have caused the most recently hired retail driver to have been laid off. Furthermore, the Company main- tains that a route was eliminated prior to the end of the strike, which meant that the second most recently hired driver, Brown, would have lost his job. The Respondent also argues that there is nothing in the record which indicates that Brown would have been employed by the Company after March 10, 1960, if he had continued to work at the plant, and even if there had been no strike. The record reveals that in the period of the strike, or immediately thereafter, the Company had working on its retail routes employees Guercia, Campo, Calitri, Medeiros, Mendes, Anthony Almonte, Solitto, Gentile, Esser, Andresson, Broadhead, Zoglio, and Vanni.3 Angelo Almonte further admitted in his testimony that after the strike was over the Company had 13 men, 2 foremen and 11 salesmen, employed on the retail routes, and admitted that at various times the Company had 6 to 8 other employees working for short periods of time on the retail routes. It is noted also that in reply to the question as to whether or not William Esser was hired on March 10, 1960, Almonte stated, "He could have been." 4 This is the date, as afore- stated, when supposedly the first retail route was taken off and Brown would then have no longer been employed. 2 For the sake of establishing time sequences in this proceeding, it appears that a strike at the Respondent's plant started on February 22, 1960, ended on April 4, 1960, and was deemed to be an unfair labor practice strike. Federal Dairy Company, Inc., 130 NLRB 1158. 3 Testimony of the Respondent 's Sales Manager Angelo Almonte. I Almonte also admitted that new employees Blair, Lombardi, Fuller, and Savoie, worked at the plant In addition to the above employees. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the final analysis here, it first appears to me that the Company has foreclosed a good deal of its argument and contention by offering to reinstate Brown in January of 1962, and certainly there was no evidence introduced in attacking the validity of this offer. It, therefore, seems to me that the Respondent, more or less, admits that there was a job available for Brown even as late as January 1962. Furthermore, even accepting the Respondent's main premise that starting on March 10, 1960, retail routes were reduced, nevertheless, in consideration of the record as a whole, and on the pertinent testimony heretofore mentioned, there are very definite indications that the overall business operations in the retail routes during the periods in question remained at a high level. While there may have been some internal changes or bookkeeping reduction in the number of routes, the actual vol- ume of business, to a large extent, remained. Just before the strike on February 22, 1960, there were 13 employees working at the plant in connection with retail routes, and immediately after the strike in early April, there is admitted testimony that there were 13 men on the retail routes. From this evidence it is obvious to me that the Company did have a constant demand for employees on the retail routes. I find that the Company failed to sustain its contention that the reduction in retail routes would have resulted in a curtailment of employment for Brown, and this contention of the Respondent is rejected.5 In accordance with the above I recommend that Wilson Brown he paid the sum of $1,644.54. Carmine Lopez: The specification alleges that Lopez' backpay period begins on April 5, 1960, and ends February 17, 1962.6 It is alleged that under the Board's formula the backpay due Lopez totals $1,890.30. The parties stipulated that Lopez received a letter from the Company dated April 13, 1960, which read as follows: You are hereby requested to report for work on Monday, April 18, at your usual time. You will be assigned as driver of route No. 12. Lopez testified that when the strike occurred he was working as the supervisor on the retail routes, stated that he also drove 5 days a week on a route himself, and was being paid about $120 a week.? Lopez further testified that the day after he received the letter from the Company, as aforestated, he had a conversation with Anthony Almonte, a son of one of the owners, and that Lopez then inquired of him as to why he had been given route No. 12, and Anthony Almonte then informed Lopez that the Company "figured" that he would not take it, and if he did ".. . wouldn't last long." Lopez did not report for work on April 18. The record shows that on January 29, 1962, the Company sent Lopez a second letter which read as follows: You are hereby offered reinstatement to your former or substantially equiv- alent position without prejudice to any of your rights and privileges. We would like to have you report on Tuesday at 9:30 a.m., February 6, 1962. Kindly communicate with us before that time and let us know if you can come in on that date. Lopez related that pursuant to the above he reported to the Company on February 6, but was then informed by the Respondent 's Sales Manager Angelo Almonte that he would call Lopez when the Company was ready, and that there was no opening right then. Lopez next heard from the Company by a letter dated February 17, 1962.8 Angelo Almonte testified that the Company never had a position as supervisor over the retail routes until Lopez was made one, that this position has been dis- continued since the strike, and stated that had Lopez returned to work on April 5, 1960, he would have held the position of foreman at $100 a week. The Respondent contends that the letter dated April 13, 1960, was an offer of reinstatement and that Lopez would have been entitled to one of the two foremen's jobs in the retail routes division . Respondent argues that there is nothing in this 6It is noted also that Brown is an unfair labor practice striker, and therefore, entitled to his job even if a replacement employee had to be dismissed. 9 The General Counsel admits in the specification that Lopez was unavailable for work during certain periods in 1960 and 1961. 4 It was established that the average weekly earnings of the retail route drivers during the backpay period was $75. 9 This third letter stated : "Further to telephone conversation of February 14, this letter will confirm our understanding you will report for work as a foreman, on Wednesday, February 21, 1962, at 4:30 a.m." FEDERAL DAIRY COMPANY, INC. 137 letter to indicate that he would not be a foreman, but, on the other hand admitted that the letter stated that Lopez would be assigned as driver on route No. 12.9 Lopez was entitled to reinstatement to his former or substantially equivalent posi- tion. The letter by the Company dated April 1960, stated that Lopez would be assigned as driver on route No. 12, and in my opinion there is no indication in this letter whatsoever, that Lopez would be given a job as one of the foremen. It is further noted that shortly after Lopez received this letter, he had a conversation with Anthony Almonte who told Lopez that he (Almonte) was in charge of all the whole- sale routes, and that the Company "figured" Lopez would not return to take route No. 12. Under these circumstances and conditions, I find that Lopez was fully justified in refusing the Respondent's offer of reinstatement with the specific limita- tions therein imposed. There is also present, as aforestated, a second offer made to Lopez to report to work'on February 6, 1962, to his former or substantially equivalent position. In view of the cavalier dismissal of Lopez when he did in fact report, it can only be assumed that this offer was made to cut off Lopez' backpay in the vain hope that Lopez would not report as directed. In accordance with the above I recommended that Lopez be paid the sum of $ 1,890.34 as alleged in the specification. James P. Fay: The specification alleges that Fay's backpay period begins on April 5, 1960, and ends February 19, 1962. It is alleged that under the Board's formula the backpay due Fay totals $2,919.25. It is undisputed that Fay started to work at Federal Dairy on August 13, 1959, as a wholesale driver. It was stipulated that Respondent offered Fay reinstatement by letter dated December 30, 1961, asking him to report for work on January 4, 1962. It was also stipulated that Respondent again offered Fay reinstatement by letter dated February 10, 1962, asking him to report for work on February 19, 1962.10 Fay testified that on January 6, 1962, he reported for work, and after finishing his first stop his foreman told him to return to the dairy. Fay stated that as he was walking toward the dairy he was assaulted from behind, and as a result of this in- cident he had to be sent to a hospital. The record shows that about a month after this incident the Company sent Fay another offer of reinstatement, as aforestated, but in the meantime Fay secured a job elsewhere, and chose not to report for work at the Company a second time. Fay was the lowest man in seniority of the whole- sale drivers at the time of the strike. Angelo Almonte testified that at the time of the strike the Company had 11 whole- sale routes, but after the strike the routes were reduced to 9-and that one of the routes was eliminated on June 29, 1960.11 Almonte also stated that at the end of the strike the Company had 13 men working on the wholesale routes. Almonte admitted that employees Spizzerri and Carmadello were hired right after the strike, and that employee Larni (or Lanni) was hired on February 22, 1960. In making my findings as to Fay, it is first noted that Angelo Almonte stated in his testimony that regardless of the strike the Company still retained their customers, but testified that the Respondent cut the service on its wholesale routes in that they gave one delivery every other day instead of a delivery every day. It is also noted that after the strike the Company continued to employ approximately the same num- ber of men as wholesale route drivers as it did before their labor difficulties. In accordance therewith, I find that the Respondent has failed to prove that the reduc- tion in wholesale routes was sufficiently serious to have caused extensive employee layoffs, and that there was ample work available during the backpay period for the employment of Fay. Certainly by the offer of reinstatement to Fay on January 4, 1962, the Respondent more or less implies or indicates that the reduction in the num- ber of wholesale routes did not necessarily reduce the number of employees required. As aforestated, there is also admissions by the Respondent that new employees were constantly being "broken in" on its various routes. Furthermore, the Company felt it again necessary to offer Fay reinstatement in February in view of the serious cir- cumstances which caused him to be hospitalized a month earlier, and in view of this incident the General Counsel alleged that Fay's backpay period ended with the sec- e In accordance with the above the Company maintains that Lopez would have been earning $100 a week, and that the backpay should be computed on this basis. 1O Fay actually reported for work on January 5, 1962, and worked that day without objection by the Respondent to the fact that he had reported late. n Almonte testified that at this time Fay would have been let out as he had the lowest seniority of wholesales drivers, and the Respondent contends that had Fay been working on June 29 , 1960, there would have been no job for him and he would have been released then . The Company admits backpay liability up to this date. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and offer of reinstatement rather than the first . I have rejected the Respondent's contention that there was no work available after June 29, 1960, and there appears to be no argument by the Company that Fay should have reported back to work after his hospitalization in January 1962.12 In accordance with the above, I recommend that Fay be paid the sum of $2,919.25. Ralph Regine: The amended specification as to Regine alleges that his backpay period runs from April 5, 1960, and ends June 30, 1961. Under the Board's formula the backpay due Ralph Regine totals $5,988.59. The record reveals that Regine first started to work for Respondent in 1944, and before the strike was a foreman in the ice cream department. It was stipulated that Regine was sent a letter by the Company dated May 6, 1960, which requested him to report for work on May 10, 1960, and which informed Regine that he would be assigned to an ice cream route. Regine testified that prior to the strike he received approximately $93 weekly, and stated that the job he was offered on the ice cream route would have paid him about $75. Regine further testified that his additional duties at the plant included deliveries on a special route, 2 days a week, 2 days of relieving other drivers on their days off, and that he was in charge of the plant operations on Sundays. Regine also testified that shortly before he was due to report for work as requested in the above-mentioned letter, he had a conversation with Henry Almonte, Jr. Almonte asked Regine if he had the nerve to report back to the plant, and further told Regine that he would be assigned to an ice cream route, would not be given his regular job, and then informed Regine that "we'll can you the next day, because we'll accuse you of stealing." Regine stated that a few days after he was to report back, he was informed by Angelo Almonte that Regine "used his head" in not reporting back to the Company because he was not wanted. On February 7, 1962, Respondent sent Regine another offer, and this second offer was to report for work on February 12, 1962, in "your former or substantially equivalent position." Angelo Almonte testified that after the strike the special route Regine formerly ran was cut off entirely, and the two ice cream routes then delivered 5 days a week instead of 6, and stated that the Company had no ice cream foreman from that time on. Almonte testified that due to these changes, had Regine returned, he would have been a route driver. Basically, the Respondent contends that its original offer of work on May 10, 1960, was a valid offer of reinstatement, and that this proposal effected cut off of Regine's backpay. It appears to me that the proposal made to Regine by the Company in May 1960, was not a valid offer of reinstatement and I so find. Regine was entitled to more than an offer of a mere job-he should have been reinstated to his former or substantially equivalent position. Here also the Company, again relies on changes it made after the strike, but has failed to prove any real justifications for them or that the then-existing business conditions were sufficiently serious to have necessi- tated such changes. Furthermore, the allegation by the General Counsel is made all the stronger by the admission that at least some of Regine's former duties- Sunday work-continued to be performed by another employee.13 It further appears to me that the May 1960 offer made to Regine did not measure up to the standard set by the Board. The mere notification to Regine that a certain job not formerly held by him was available, does not satisfy the requirement the Board placed on the Respondent to offer reinstatement. I submit that the 1960 offer made by the Company was clearly intended to rebuff Regine with the hopes that he would refuse to accept, and with the further hopes and expectations that Regine would then be subsequently bound by that refusal. It is noted that in February 1962, the Respond- ent sent Regine a second offer, as aforestated, and at this time to reinstate him to his former or substantially equivalent position. This would appear to me as an indication that such a position still existed, and this offer correctly states the standard to which the first offer did not adhere. ^ Throughout this record, and as again indicated in the case of Fay, the Respondent maintains that it can escape liability by setting up a model of what would have been the situation had there been no strike. However, this record falls to sustain this contention, and at the most only shows that possibly a few services were curtailed or changed due to the strike, but that there remained a continued need for all employees. If the demand for the Respondent's products fell off to any noticeable degree due to the labor dispute-it is not reflected adequately by this record. Furthermore, there is no credited testimony whatsoever of any prior planning by the Company to reduce its wholesale or retail routes. For the Respondent now to take advantage of the fruits of its own misdeeds would be intolerable. 13 Testimony of Angelo Almonte. MONTEREY COUNTY, ETC., TRADES COUNCIL 139 In accordance with the above, I recommend that Ralph Regine be paid the sum of $5,988.59. CONCLUSION Upon the foregoing findings, the Trial Examiner finds and concludes that the employees listed hereunder are entitled to payment by the Respondent of the sums listed opposite their names.14 Wilson Brown -------- $1,644. 54 James Fay_______________ $2,919.25 Carmine Lopez------- $ 1,890 .30 Ralph Regine_____________ $5,988.59 RECOMMENDED ORDER It is recommended that the Board adopt the foregoing findings and conclusions. 14 Minus any tax withholdings required by Federal and State laws. Monterey County Building & Construction Trades Council and Vito J. La Torre . Cases Nos. 20-CC,-285, 20-CP-66-1, and 20-CP-66-2. April 2291963 DECISION AND ORDER On August 22, 1962, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, and on September 5, 1962, an erratum, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these allegations be dismissed. Thereafter, the General Counsel, the Charging Party, and the Respondent filed excep- tions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner to the extent that they are consistent with this Decision. 1. The Trial Examiner found that the Respondent, without a Board certification, threatened to and did picket Buckeye and Whiteside for recognition at the Elkhorn Ranch, and that such picketing con- tinued for a period in excess of 30 days without the filing of a repre- sentation petition. We agree with this finding. I Respondent 's request for oral argument is denied , as in our opinion the record, excep- tions, and briefs adequately present the issues and the position of the parties. 142 NLRB No. 18.