Market Services Assn.

National Labor Relations Board - Board Decisions

Sep 22, 1994

314 N.L.R.B. 1250 (N.L.R.B. 1994)

1250
314 NLRB No. 202
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The caption reflects the new official name of the International
Union.
2 Dominick’s Finer Foods, 308 NLRB 935, enfd. docket Nos. 93–
1365 and 93–1545 (7th Cir. 1994).
3 The names of these 58 employers are listed in Exh. A appended
to the judge’s Supplemental Decision; the names of the 72 employ-
ers who were in compliance and the 22 employers dismissed at the
hearing, are listed in Exh. B and C, respectively.
4 The Board has delegated its authority in this proceeding to a
three-member panel.
5 In the absence of exceptions, we shall adopt the judge’s Order
against 56 of the employers listed in his Exh. A, excluding
Carnicerias Jimenez, Inc. and J & S Produce Co.
Market Services Association its Members and Asso-
ciate Members and Local 703, International
Brotherhood of Teamsters, AFL–CIO1 and
Local 703, a Division of Truck Drivers, Chauf-
feurs, Warehousemen and Helpers Union Local
707, affiliated with the National Production
Workers Union, Party in Interest. Case 13–CA–
29770
September 22, 1994
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On February 5, 1992, Administrative Law Judge
Walter H. Maloney issued a decision finding that cer-
tain named employer-respondents had violated Section
8(a)(1), (2), (3), and (5) of the Act. The judge, how-
ever, excluded the employer-members of Market Serv-
ices Association from his decision based on his ap-
proval, between the close of the hearing and issuance
of his decision, of an informal settlement agreement
entered into by the Association on behalf of its mem-
bers. On September 23, 1992, the Board issued a Deci-
sion and Order in this matter,2 adopting the judge’s
findings and conclusions of law and adopting his rec-
ommended Order.
Thereafter, on October 21, 1993, the General Coun-
sel filed a motion to set aside the settlement agree-
ment, claiming that a large number of the individual
employers belonging to the Association were not in
compliance with its terms. Pursuant to the General
Counsel’s motion, the judge issued an Order to Show
Cause on November 15, 1993, directed at the members
of the Association who were not in compliance with
the settlement agreement but who had been initially
charged and served when the case began, asking them
to state why the General Counsel’s motion should not
be granted as to them. Thereafter, on December 10,
1993, the judge issued a Second Order to Show Cause
directed at those who had not responded to the first
show cause order, again directing them to show cause
why the General Counsel’s motion should not be
granted as to them.
Subsequently, a hearing was held before the judge
on February 28, 1994, on the General Counsel’s mo-
tion to set aside the settlement agreement. At the hear-
ing, the General Counsel moved to dismiss its motion
as to 72 named employers, 57 of whom had complied
with the settlement agreement initially, and 14 of
whom had complied at a later date. Dismissal was also
sought as to the Association itself, which had eventu-
ally complied. The General Counsel further moved to
dismiss its motion as to 22 individual employers, who
had filed responses to the show cause orders and ap-
peared at the hearing, because they had each presented
valid reasons why the original order in this case should
not be applied to them. At the hearing, as requested by
the General Counsel, the judge dismissed the motion
to set aside the settlement agreement as to the 72 com-
plying employers including the Association and the 22
employers to whom the order did not apply.
Thereafter, on March 28, 1994, the judge issued his
Supplemental Decision and Order, granting the General
Counsel’s motion to set aside the settlement agreement
only as to the remaining 58 individual employers who
failed to respond to either Order to Show Cause.3 As
to those 58 individual employers, the judge applied the
findings of fact and conclusions of law issued by him
in JD–28–92, and adopted by the the Board in 308
NLRB 995, as fully as if they were recited again in
haec verba.
Carnicerias Jimenez, Inc. and J & S Produce Co., 2
of the 58 individual employers listed in Exhibit A,
filed timely exceptions to the judge’s Supplemental
Decision and Order. They each assert, inter alia, that
they received the show cause orders but made no re-
sponse because they were neither members of Market
Services Association at the time of the unfair labor
practices nor had authorized it to act on their behalf.
They therefore urge the Board to reopen the record to
enable them to adduce evidence of their non-
membership. The General Counsel’s answering brief
argues that the exceptions are lacking in merit because
both Jimenez and J & S failed to timely respond to ei-
ther show cause order.
The Board4 has considered the supplemental deci-
sion 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 his rec-
ommended Order as modified.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, ex-
cept as to Carnicerias Jimenez, Inc. and J & S Produce
Co., and orders that the remaining 56 named employ-
ers in Exhibit A, their officers, agents, successors, and
assigns, shall take the action set forth in the rec-
ommended Order.
1251MARKET SERVICES ASSN.
1 An evidentiary hearing took place on February 28, at which time
the counsel for the General Counsel noted that she wished to add
to the record certain formal papers—return receipts showing service
of the two Orders to Show Cause, my order, dated January 21, 1994,
setting the February 28 hearing date, and the responses of the var-
ious parties who appeared at that hearing showing cause why they
should not be included under the order. Following the hearing, she
filed a motion with me, March 11, 1994, asking that these docu-
ments be admitted into evidence as General Counsel’s Exhs. (a)
through (tt), the last exhibit being an index of the other exhibits. The
motion is granted.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3 The employers named in the attached Exh. B have complied with
the settlement agreement in the instant case and the employers listed
in the attached Exh. C were dismissed by me, from the instant pro-
ceeding, at the hearing which was held on February 28, 1993. Thus
the my Order in the instant case should not apply to any of the em-
ployers listed in Exh. B or Exh. C or to Market Services Association
itself.
IT IS FURTHER ORDERED that the issue raised as to
whether Carnicerias Jimenez, Inc. and J & S Produce
Co. were members of Market Services Association at
the time of the commission of the unfair labor prac-
tices found in this proceeding be severed and that this
proceeding as it relates to these two employers be re-
manded to an administrative law judge to be des-
ignated by the chief administrative law judge for reso-
lution of the above issue and for the preparation and
service on the parties of a supplemental decision con-
taining findings of fact, conclusions of law, and a rec-
ommended Order in light of the Board’s remand. Fol-
lowing service of such supplemental decision on the
parties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
SUPPLEMENTAL DECISION AND ORDER
WALTER H. MALONEY, Administrative Law Judge. On
February 5, 1992, after an extended hearing on the merits,
I issued a decision in a consolidated case denominated
Dominick’s Finer Foods, JD–28–92, in which I made de-
tailed findings of fact and conclusions of law and issued a
recommended Order to the Board. That decision, including
the findings of fact and conclusions of law there, was af-
firmed by the Board on September 23, 1992, at 308 NLRB
935, and the recommended Order was adopted as to four of
the five original Respondents in the case.
While the case was pending before me, Respondent Mar-
ket Services Association and its members and associate
members entered into an informal settlement with the Gen-
eral Counsel. That settlement was approved by me and, on
appeal, by the Board. On October 21, 1993, the counsel for
the General Counsel filed a motion to set aside settlement
agreement, claiming that a large number of the individual
employer-members of the Association were not in compli-
ance with its terms. She later acknowledged that some 57
named members had in fact complied. These are among the
individual firms listed in Exhibit B appended to this Supple-
mental Decision and Order. I denied the motion to set aside
the settlement agreement as to those employers. The remain-
ing 14 employers listed in Exhibit B complied at a later date,
as did the Association itself.
On or about November 15, 1993, I issued an Order to
Show Cause, directed at the remaining members of Market
Services Association who had been initially charged and
served when the case began, asking them to state why the
General Counsel’s motion should not be granted as to them.
On December 10, 1993, I issued a Second Order to Show
Cause directed to those who had not responded to the first
order, again directing them to show cause why the General
Counsel’s motion should not be granted. Some 22 employers
whose names are listed in Exhibit C appended to this supple-
mental decision filed responses showing cause why the set-
tlement should not be set aside and the terms of the original
order applied to them. A hearing was held on February 28,
1994, in Chicago, Illinois, at which time these employers ap-
peared personally or through counsel. At that time, the Gen-
eral Counsel was satisfied that they had presented valid rea-
sons the original Order in this case should not be applied to
them and moved to dismiss the motion to set aside settlement
as to them. The motion was granted by me.1
The 58 individual employers whose names appear on Ex-
hibit A, appended hereto, made no response to either Order
to Show Cause which was served on them. Since they have
failed to do so, I am applying to them individually the find-
ings of fact and conclusions of law which were issued by me
in JD–28–92 as fully as if they were recited again here in
haec verba.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent members and associated members of Mar-
ket Service Association (the Respondents) who are listed in
the attached Exhibit A attached3 and their officers, directors,
attorneys, supervisors, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and to bargain collectively in
good faith with Local 703 International Brotherhood of
Teamsters AFL–CIO (Local 703 or Local 703 IBT) as the
exclusive collective-bargaining representative of all of the
employees employed in the bargaining unit for which Local
703 was recognized for collective-bargaining purposes on
September 1, 1990.
(b) Refusing to give full force and effect to any collective-
bargaining agreements they had respectively with Local 703
as of September 1, 1990, and at all times thereafter, includ-
ing the union-security and checkoff provisions of the agree-
ments.
(c) Discouraging membership in or activities on behalf of
Local 703 by refusing to bargain collectively with it as the
duly designated collective-bargaining representative of em-
ployees employed in units for which those members and as-
sociated members had recognized Local 703 on September 1,
1990, by refusing to give full force and effect to any collec-
tive-bargaining agreements they had with the Union includ-
ing recognition or joint recognition to another labor organiza-
tion as the bargaining representative of employees in bar-
gaining units represented by Local 703, by checking off from
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
National 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.’’
the pay of employees and not remitting to Local 703 money
for union dues and fees, or otherwise discriminating against
them in their hire or tenure.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain collectively in good faith with
Local 703 as the exclusive collective-bargaining representa-
tive of all the employees employed by each named member
or associate member in the respective bargaining unit in
which they recognized Local 703 for collective-bargaining
purposes on September 1, 1990.
(b) Give full force and effect to any collective-bargaining
agreements they had respectively with Local 703 at all times
during the period September 1, 1990, to the present including
the union-security and checkoff provisions of the agreements.
(c) Withdraw and withhold recognition from any labor or-
ganization other than Local 703 as either the joint or exclu-
sive bargaining representative of any employees in any bar-
gaining unit represented by Local 703 as of September 1,
1990, unless and until the other labor organization becomes
certified as the result of a Board-conducted election.
(d) Make whole all employees employed by each specified
member and associate member in the bargaining unit for any
loss of pay or benefits suffered by them by reason of the un-
fair labor practices found here.
(e) Jointly and severally with Truck Drivers Local 707 af-
filiated with the National Production Workers Union (Local
707 NPWU) make whole Local 703 for any union dues and
fees which were checked off in the bargaining unit here from
the pay of employees and remitted to any other party but
Local 703, for those employees for whom it held checkoff
authorizations in favor of Local 703 and jointly and severally
with Truck Drivers Local 707 NPWU make whole any em-
ployees for any union dues and fees which were checked off
in the respective bargaining unit and remitted to Respondent
Truck Drivers Local 707 NPWU for those employees who
had not executed checkoff authorizations in favor of Local
703 all of the payments to be made with interest.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at at their respective places of business in and
about Chicago, Illinois, copies of the attached notice marked
‘‘Appendix A.’’4 Copies of the notice, on separate forms
provided for each specified member as an associate member
by the Regional Director for Region 13, after being signed
by a representative of such members and associate members
of the Respondents, shall be posted immediately upon receipt
thereof and shall be maintained by the Respondents for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily placed. Reason-
able steps shall be taken by each specified member and asso-
ciate member of Respondents ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the specified members
and associate members of the Respondents have taken to
comply.
IT IS FURTHER RECOMMENDED that with respect to Market
Services Association and the employees listed in Exhibits B
and C, the motion of the General Counsel, dated October 21,
1993, to set aside the settlement agreement, which was ap-
proved by me on December 30, 1991, was dismissed pre-
viously and that dismissal is confirmed and restated.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
[Employer named in Exhibit A] is posting this notice to com-
ply with an order of the National Labor Relations Board
which was issued after a hearing before an administrative
law judge in a case in which we were found to have violated
certain provisions of the National Labor Relations Act.
WE WILL NOT refuse to recognize and to bargain collec-
tively with Local 703 International Brotherhood of Teamsters
AFL–CIO as the exclusive collective-bargaining representa-
tive of all the employees employed in the bargaining unit in
which we recognized Local 703 IBT as of September 1,
1990.
WE WILL NOT refuse to give full force and effect to any
collective-bargaining agreement we had with Local 703 IBT
as of September 1, 1990.
WE WILL NOT grant recognition to any labor organization
other that Local 703 IBT as either the joint or exclusive col-
lective-bargaining representative of any employees in any
bargaining unit represented by Local 703 IBT as of Sep-
tember 1, 1990, unless and until the other labor organization
becomes certified as the result of a Board-conducted election.
WE WILL NOT check off from the pay of any employees
and remit to Truck Drivers Local 707 affiliated with the Na-
tional Production Workers Union any money for union dues
or fees.
WE WILL NOT discourage membership in or activities on
behalf of Local 703 IBT by refusing to recognize and bar-
gain collectively with it, by refusing to give full force and
effect to any collective-bargaining agreement we have signed
with the Union, including the union-security and checkoff
provisions of the contracts, by granting recognition to an-
other labor organization as the bargaining representative of
employees in a bargaining unit lawfully represented by Local
703 IBT, by checking off from the pay of employees and re-
mitting to another labor organization money for union dues
and fees, or otherwise discriminating against employees in
their hire or tenure.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize and bargain collectively in good faith
with Local 703 IBT as the exclusive collective-bargaining
representative of all of the employees employed in the bar-
gaining unit in which they were recognized for collective-
bargaining purposes on September 1, 1990, and WE WILL
1253MARKET SERVICES ASSN.
give full force and effect to any collective-bargaining agree-
ment we had with Local 703 IBT as of September 1, 1990,
including the union-security and checkoff provisions of the
agreement.
WE WILL withdraw and withhold recognition from any
labor organization other than Local 703 IBT as either the
joint or exclusive bargaining representative of any employees
in any bargaining unit represented by Local 703 IBT as of
September 1, 1990, unless and until the other labor organiza-
tion becomes certified as the result of a Board-conducted
election.
WE WILL jointly and severally with Truck Drivers Local
707 NPWU, make whole Local 703 IBT for any union dues
and fees which were checked off from the pay of our em-
ployees and remitted to Truck Drivers Local 707 NPWU for
those employees from which we held checkoff authorizations
in favor of Local 703 IBT, and jointly and severally with
Truck Drivers Local 707 NPWU, WE WILL make whole any
employees for any union dues and fees which we checked
off and remitted to Truck Drivers Local 707 NPWU for
those employees who had not executed checkoff authoriza-
tions in favor of Local 703 IBT, all of the payments to be
made with interest.
[EMPLOYER NAMED IN EXHIBIT A]
EXHIBIT A
Alex Produce-Skokie Garden Fresh
Arrigo & Sons Produce
Ty Avros Produce Tee Time Produce Ltd.
Balistreri Trucking Treasure Island Foods
C & M Produce Thomas J. Gatziolas
Carioto & Larsen, Geronimo’s Inc.
Inc. J & J Produce Co.
Jimenez Carniceria, J & S Produce Co.
Inc. John’s Northwest Produce
Carrot Top, Inc. J P Produce
T. Castro Produce M. Klein Produce
Chicago Food Ser- La Mantia Bros. Arrigo
vice Enterprises Co.
Inc. Lanzarotta Bros. Co.
Combined Foods Lincoln Wholesale
Corp. M & V Produce
Commonwealth Market Place
Wholesale Pro- Charles McRae Wholesale
duce, Inc. Produce
Crystal Foods/Fabui, Midwest Produce, Inc.
Inc. Mr. Tomatoes
D & M Egg Co. Naturally Fresh Provisions
S. Delisi & Sons Michael J. Navilio
Delmares Produce Pete’s Produce
Diamond Produce Quality Produce Supplier
Durante Bros. Reliable Supermarkets
Produce Roins Produce
El Rancho Produce RWF Tomato Co.
Enriquez Produce M. Signorelli Produce
Farmers Glory J. Spanola & Sons
Five Star Food Dist. Sparta Produce
Falver Fresh Dist. Star Bear
Fresh Bunch, Inc. Steins/LTS Produce
Fresh Market Service Tony’s Produce
Fruteria Olivos Wainer Fruit Co.
EXHIBIT B
The employers named in Exhibit B below have complied
with the instant settlement agreement:
Anton Argires Bros. Atom Banana, Inc.
& Co. Battaglia Distributing
Auster Company Big Apple Finer
Berkowitz Co. Foods, Inc.
California Sprout & Capitol Wholesale
Celery Produce
J. Caruso Produce Cee Bee Cartage
Chicago Melon City Wide Produce
Corp. Joseph Cosentino Co.
George J. Cornille D’Amico Produce
& Sons, Inc. Durante & Termini
Coyne Produce Harry A. Fandre
Dietz & Kolendenko Market Service
Co. Ira I. Fisher, Inc.
Evergreen Inter- General Produce
national Produce Dist.
Finer Foods, Inc. Get Fresh Produce
G. W. Produce Hoversen & Sons
Gentile Bros. Jack Keller Co.
Produce Tom Kutsulis Co.
Harris Motor La Hacienda Brands
Express Lurie Bros.
DJ Karos Company Anthony Marano Co.
(Kros Produce Austin J. Merkel Co.
Company) Mushroom Growers
Orval Kent Food Sales Assn.
Company Northwest Express
La Preferida, Inc. Original Chicago Produce
Loutos Cartage Pedi Bros. Wholesale
Service Produce
Mandolini Co. S. J. Piraino Co.
Market Cartage Quality Celery & Sprout
Midwest Foods Co.
Morris Nathan Al Rinella Wholesale
Produce Produce
Olympic Wholesale S & M Produce, Inc.
Produce Sisiliano Motor Freight
Panama Banana Dist. Irv Solomon & Son
Co. South Water Produce
Pets Calvert Co. Dominick Testa & Son,
Leo Pusateri & Sons Inc.
R & S Produce Tropical Wholesale
C. Ruffolo & Sons Produce
Sansone Motor United Potato Co.
Freight Victory Spud Service
Bernard Smith Market Services
Produce Association
Son-Quang Corp. Universal Fruit Co.
Strube Celery & Thomas S. Zaccone,
Vegetable Co. Wholesale Pro-
Tri Workers, Inc. duce
Jack Tuchten Whole-
sale Produce
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
EXHIBIT C
The employers named in Exhibit C were dismissed by me
at the hearing held on February 28, 1993.
ABC Food Remem- Berwyn Fruit Mar-
berances ket, Inc.
Daniels Wholesale Gino & Sam’s Whole-
Produce sale Produce
Green Garden Kenosha Fruit Mar-
Produce ket
Kramer Produce La Bodega, Inc.
Marines Bros. Meadow Brook Pro-
Mike’s Taters duce Co. (Meadow-
Nice N’Easy Foods brook Egg)
Parsnips Persimmons Nat’s Garden
& Katz Produce
Rizes Produce, North Water Market
Inc. N. S. Pizzo & Sons,
A. Stallone, Inc. Inc.
Vegetable Fresh, Russo’s Produce
Inc. Valley Fruit &
Watermelon Depot Produce