Imperia Foods, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1988

287 N.L.R.B. 1200 (N.L.R.B. 1988)

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.