Petitioners seek review of an order of the National Labor Relations Board which dismissed, in part, and unfair labor practice complaint against Goodie Brand Packing Corp. The petition is granted, the order is modified in part, and the case is remanded for further proceedings.
Before: OAKES, KEARSE and PIERCE, Circuit Judges.
Petitioners Roberto Canchez and Elva Rodriguez Seek review pursuant to Section 10(f) of the National Labor Relations Act (Act), as amended, 29 U.S.C. §§ 151, 160(f) (1982), of an order of the National Labor Relations Board (Board) dated April 30, 1984, that dismissed in part unfair labor practice complaint against Goodie Brand Packing Corp. (Goodie Brand or Company). While the Board agreed with the Administrative Law Judge (ALJ) that Goodie Brand had violated Section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by discharging petitioner Sanchez and other employees who had participated in a strike.
The petition for review is granted and the Board's order is modified to provide for the reinstatement of petitioner Sanchez. The case is remanded for further proceedings with respect to the striking employees.
The finds of fact as made by the ALJ and adopted by the Board chronicle a pattern of unfair labor practices at Goodie Brand. goodie Brand is a wholesale fruit and vegetable distributor in New York City that purchases produce at the Hunts Point Market (Market) in the Bronx as well as from growers throughout the United States and Mexico and sells the produce to retail stores and restaurants. Goodie Brand is run by four brothers; Abe Solomon, the President, is in charge of labor relations.
The Company employs floor workers who sort and package the produce, and drivers who pick up the produce at the Market and make deliveries. These employees are represented by Local 202, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and helpers of America (the Union or Local 202), which has two association-wide collective bargaining agreements with Goodie Brand. These agreements. one of which covers the drivers while the other covers the floor workers, have been in existence since 1959 and, according to the findings, contain valid union security clauses, no-strike and no-lockout clauses, and provide for the adjustment of grievances and arbitration. In addition, both agreements provide that the Union may designate shop stewards.
Goodie Brand has a telling history of hostility to Union activities. Felix Liciaga, a floor worker, was the shop steward for both the drivers and the floor workers for several years until 1978 or 1979. In February, 1980 Petitioner Elva Rodriguez, a floor workers was elected shop steward and also represented both the floor workers and the drivers. Despite the fact that both collective bargaining agreements contained union security clauses which required union membership after 30 days of employment, only eleven out of sixty of the Company's eligible workers were Union members in 1980. Rodriguesz' efforts to increase union membership and to represent goodie Brand's employees met with considerable Company resistance. After distributing union membership cards to the employees, Rodriguez was told by one of the Solmon brothers not to talk about the Union inside the plant. In April, 1980, Rodriguez, who lives in Yonkers, was discharged from the Company for failing to report to work during the transit strike. Sol Solomon told the employees that Rodriguez would not be allowed back at work because she was a "son of a bitch." Rodriguez was the only employee discharged, despite the fact that other employees did not report to work during the transit strike. Rodriguez was reinstated only after the employees walked out and Teddy Mogilnicki, the Union business agent, interceded on her behalf. In August and September 1980, the Union received letters from the Company complaining about Rodriguez' work performance. Thereafter, Rodriguez and her sister were told that they would be required to lift thirty-two pound boxes of tomatoes which, until then, had been lifted for them by a male worker. When she protested to Abe Solomon and presented him with a doctor's note, he told her that the alternative was to quit; when she complained to Mogilnicki, he said that she must follow orders. In June 1981, Rodriguez resigned as shop steward and Roberto Sanchez, a driver, was elected July 1.
Sanchez was hired as a driver by goodie Brand in 1975 and became a member of the Union in 1978. Sanchez testified that when one of the Solomon brothers asked him why he joined the Union and he responded that he sought Union benefits, he was told that he should have talked it over with the management first. After attending a Union meeting, Sanchez was told by the management that he had better be careful and that he was being followed; he was also told not to talk to to her employees about Union activities. Thereafter, the Union received letters complaining about Sanchez' work performance. As the ALJ pointed out, there is not record of prior complaints about Sanchez.
According to the findings, after Sanchez' election as shop steward in July, 1980, he was subjected to threats and warnings by Goodie Brand's management and assigned more onerous working conditions. For example, Abe Solomon told Sanchez that he could not represent both the floor workers and the drivers (despite the fact that one shop steward had traditionally represented both units) because the Company had two separate contracts with the Union. Solomon asked Sanchez why he was organizing the workers and threatened Sanchez saying "from now on, you me [sic] going to have a fight every single day, and let's see how long you last in your job." App. at 103. Sanchez was also told to advance his own money for tolls contrary to prior company practice, and he was put on the night shift contrary to seniority rules. In addition, after Sanchez' election as shop steward, a number of complaint letters were sent to the Union regarding his work performance. Despite this harassment, Sanchez filed over forty-five grievances with the Union.
The following events gave rise to petitioners' present predicament. At approximately 5:30 a.m. on September 25, 1981, Sanchez left the Market driving a Company truck. He unwittingly turned south onto a northbound lane of the Bruckner Boulevard. When he realized his mistake, he crossed the concrete divider that separates the north and south lanes. the divider was approximately twelve inches wide and five and one half inches high and the truck was damaged to the extend of $2,300. Nat Solomon observed the incident and when Sanchez returned to the Goodie Brand plant, Abe Solomon asked him what had happened; according to Sanchez, upon hearing Sanchez' story Solomon walked away. Abe Solomon testified that "[Sanchez] told me what happened and I said to him that at this particular time you're being suspended for a period of time." Solomon told the ALJ that he meant an "indefinite suspension." App. at 661. thereafter, Sanchez received a letter from Goodie Brand addressed to the Union informing him that he had been indefinitely suspended. Solomon testified that after discussions with Goodie Brand's attorneys and Mogilnicki he decided to convert the indefinite suspension to a two week suspension. See also app. at 1098 (pre-hearing letter to Board claiming that Sanchez was suspended). Mogilnicki testified that he understood that he suspension would be for one week, but at most Solomon had agreed to a two week period. Apparently, no one told Sanchez about the conversion to a two week suspension. In fact, after Sanchez received the letter from Goodie Brand and asked the Union's attorney that it meant, he was told "what the hell you think it is? You're fired." App. at 331 (testimony of Roberto Sanchez).
On October 5, 1981, Sanchez, with the help of other union members set up a picket line outside the Goodie Brand plant to protest his discharge. Approximately forty employees joined the picket line. On October 6, the company sent the following letter to all these employees with the exception of Sanchez:
Please be advised that you are [sic] engaged in an unlawful work stoppage--A WILDCAT STRIKE--which ...