Stern Produce Company

National Labor Relations Board - Unpublished Board Decisions

Jun 7, 2021

28-CA-258619 (N.L.R.B. Jun. 7, 2021)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
STERN PRODUCE COMPANY, INC.

and Case 28-CA-258619
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 99
DECISION AND ORDER
Statement of the Case
On May 5, 2021, Stern Produce Company, Inc. (the Respondent); United Food and
Commercial Workers Union, Local 99 (the Charging Party); and the General Counsel of the
National Labor Relations Board entered into a Formal Settlement Stipulation, subject to the
Board’s approval, providing for the entry of a consent order by the Board and a consent
judgment by any appropriate United States Court of Appeals. The parties waived all further and
other proceedings before the Board to which they may be entitled under the National Labor
Relations Act and the Board’s Rules and Regulations, and the Respondent waived its right to
contest the entry of a consent judgment or to receive further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record, and the
proceeding is transferred to and continued before the Board in Washington, D.C., for the entry of
a Decision and Order pursuant to the provisions of the Formal Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board makes the
following
Findings of Fact
1. The Respondent’s business
The Respondent is a corporation with an office and place of business in Phoenix, Arizona
(the Respondent’s facility), and has been engaged in the wholesale distribution of food products.
In conducting its operations during the 12-month period ending March 30, 2020, the
Respondent purchased and received at the Respondent’s facility goods valued in excess of
$50,000 directly from points outside the State of Arizona.
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The Respondent is now, and has been at all material times, an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the National Labor Relations Act
(the Act).
2. The labor organization involved
The United Food and Commercial Workers Union, Local 99 is a labor organization
within the meaning of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the entire
record, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor
Relations Board orders that the Respondent, Stern Produce Company, Inc., Phoenix, Arizona, its
officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Selectively recalling or rehiring laid-off employees in a manner calculated to
dilute the strength of United Food and Commercial Workers Union, Local 99 (UFCW, Local 99)
or any other labor organization in an election conducted by the National Labor Relations Board.
(b) Discharging or refusing to reinstate any of its employees, refusing to recall any of
its laid-off employees, or in any other manner discriminating in regard to hire or tenure of
employment or any other term or condition of employment, in order to discourage membership
in UFCW, Local 99, or in any other labor organization.
(c) In any other manner interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form labor organizations, to join or assist the
UFCW, Local 99, or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of the Board’s Order, offer, in writing, Efrain
Amador, Gaspar Beltran, Miguel Canales-Escalera, Juan Juarez Nunez, Eustolio Miranda,
Manuel Olea, Jose Pacheco, Uvaldo Ponce, Roberto Rosas, Jose Ruiz, and Charles White full
reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed
before their layoffs.
(b) Make whole the following employees for any loss of pay they suffered as a result
of the unlawful refusal to recall them by payment to them of the amounts set forth opposite their
respective names:
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Name Backpay Interest Excess Tax Total
Efrain Amador $27,040.02 $451.63 $83.79 $27,575.44
Gaspar Beltran $32,693.65 $652.73 $121.10 $33,467.48
Miguel Canales- $29,714.63 $659.73 $122.40 $30,496.76
Escalera
Juan Juarez Nunez $39,149.79 $679.29 $126.03 $39,955.11
Eustolio Miranda $52,325.56 $908.22 $168.51 $53,402.29
Manuel Olea $16,545.65 $338.34 $62.77 $16,946.76
Jose Pacheco $19,108.63 $445.29 $82.62 $19,636.54
Uvaldo Ponce $35,864.99 $780.23 $144.76 $36,789.98
Roberto Rosas $23,656.35 $509.58 $94.54 $24,260.47
Jose Ruiz $46,213.69 $802.06 $148.81 $47,164.56
Charles White $35,303.14 $595.21 $110.43 $36,008.78
(c) Make whole Efrain Amador, Gaspar Beltran, Miguel Canales-Escalera, Juan
Juarez Nunez, Eustolio Miranda, Manuel Olea, Jose Pacheco, Uvaldo Ponce, Roberto Rosas,
Jose Ruiz, and Charles White for any additional loss of pay caused by the Respondent’s failure,
if any, to reinstate them in accordance with the provisions of this Order, within 14 days from the
date of this Order, by payment to them of the respective amounts that they would have earned if
properly reinstated, from the 15th day after the date of the Board’s Order to the date of a proper
offer of reinstatement, less their net earnings during such period, said amounts to be computed
on a quarterly basis.
(d) Compensate Efrain Amador, Gaspar Beltran, Miguel Canales-Escalera, Juan
Juarez Nunez, Eustolio Miranda, Manuel Olea, Jose Pacheco, Uvaldo Ponce, Roberto Rosas,
Jose Ruiz, and Charles White for the adverse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for Region 28, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay
award to the appropriate calendar year(s).
(e) File with the Regional Director for Region 28 a copy of each affected employee’s
corresponding W-2 form(s) reflecting the backpay award.
(f) Within 14 days of the Board’s Order, remove from the Respondent’s files any
reference to the unlawful refusal to recall Efrain Amador, Gaspar Beltran, Miguel Canales-
Escalera, Juan Juarez Nunez, Eustolio Miranda, Manuel Olea, Jose Pacheco, Uvaldo Ponce,
Roberto Rosas, Jose Ruiz, and Charles White, and within 3 days thereafter, notify those
employees in writing that this was done, and that the unlawful refusal to recall them will not be
used against them in any way.
(g) Within 14 days of service by the Region, post at its Phoenix, Arizona facility,
copies of the attached notice marked “Appendix A” in English and Spanish, and in additional
languages if the Regional Director decides that it is appropriate to do so. Copies of the notice, on
forms provided by Region 28, after being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places,
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including all places where notices to employees are customarily posted. The Respondent will
take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other
material. The Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees employed by the Respondent and the 11 named alleged discriminatees.
(h) This stipulation is subject to the approval of the Board and, immediately upon the
approval by the Board, it will be retroactively effective to the date of execution of the stipulation.
(i) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C., June 7, 2021.
___________________________________
Lauren McFerran, Chairman
___________________________________
William J. Emanuel, Member
___________________________________
John F. Ring, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF ANY APPROPRIATE UNITED STATES COURT
OF APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain, or coerce you in the exercise of the above rights.
WE WILL NOT selectively recall or rehire laid-off employees in a manner calculated to dilute
the strength of United Food and Commercial Workers Union, Local 99 (UFCW, Local 99) or
any other union in an election conducted by the National Labor Relations Board.
WE WILL NOT discharge or refuse to reinstate you, refuse to recall you from a layoff, or in
any other manner discriminate against you in regard to hire or tenure of employment or any other
term or condition of employment, in order to discourage membership in UFCW, Local 99, or in
any other union.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of
your rights under Section 7 of the Act.
WE WILL make Efrain Amador, Gaspar Beltran, Miguel Canales-Escalera, Juan Juarez Nunez,
Eustolio Miranda, Manuel Olea, Jose Pacheco, Uvaldo Ponce, Roberto Rosas, Jose Ruiz, and
Charles White whole, with interest, for any losses they may have suffered as a result of our
refusal to recall them.
WE WILL immediately offer Efrain Amador, Gaspar Beltran, Miguel Canales-Escalera, Juan
Juarez Nunez, Eustolio Miranda, Manuel Olea, Jose Pacheco, Uvaldo Ponce, Roberto Rosas,
Jose Ruiz, and Charles White, full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed before their layoffs.
WE WILL remove from our files any reference to our refusal to recall Efrain Amador, Gaspar
Beltran, Miguel Canales-Escalera, Juan Juarez Nunez, Eustolio Miranda, Manuel Olea, Jose
Pacheco, Uvaldo Ponce, Roberto Rosas, Jose Ruiz, and Charles White, and WE WILL notify
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those employees in writing that this was done, and that the refusal to recall them will not be used
against them in any way.
WE WILL compensate Efrain Amador, Gaspar Beltran, Miguel Canales-Escalera, Juan Juarez
Nunez, Eustolio Miranda, Manuel Olea, Jose Pacheco, Uvaldo Ponce, Roberto Rosas, Jose Ruiz,
and Charles White for the adverse tax consequences, if any, of receiving a lump-sum payment,
and WE WILL file with the Regional Director for Region 28, within 21 days of the date the
amount is fixed, either by agreement or Board order, a report allocating the payment to the
appropriate calendar years for each of them.
WE WILL file with the Regional Director for Region 28 a copy of each affected employee’s
corresponding W-2 form(s) reflecting the backpay award.
STERN PRODUCE COMPANY, INC.
The Board’s decision can be found at www.nlrb.gov/case/28-CA-258619 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.