Schorr Stern Food Corp., 1650 (1975)

Schorr Stern Food Corp. and Patrice Manes and Food Packers, Cannery and Miscellaneous Workers Union, Local 220, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Party to the Contract. Case 29-CA-4968

January 28, 1977 DECISION AND ORDER

BY MEMBERS JENKINS , PENELLO, AND WALTHER

On November 19, 1976, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified.' ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Schorr Stern Food Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

1. Substitute the following for paragraph 1(c):

   '(c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities.' 2. Substitute the attached notice for that of the Administrative Law Judge.

   1 In par 1 (c) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, 'like or related,' rather than the broad injunctive language, 'in any other manner,' the Board traditionally provides in cases involving serious 8(aX3) discnminatory conduct, such as that found here See N.LR B v. Entwistle Mfg Co, 120 F 2d 532,536 (C A 4, 1941), Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975) Accordingly, we shall modify the recommended Order to require Respondent to cease and desist from in any 227 NLRB No. 245 manner infringing upon employee rights. This change shall also be made in the revised notice to employees.

   APPENDIX

   NOTICE To EMPLOYEES POSTED BY ORDER OF THE

   NATIONAL LABOR RELATIONS BOARD

   An Agency of the United States Government After a hearing at which we were represented and presented evidence, it has been found that we have violated the National Labor Relations Act in certain respects. To correct and remedy these violations, we have been directed to take certain actions and to post this notice.

   WE WILL NOT include or maintain in any collective-bargaining agreement with Food Packers, Cannery and Miscellaneous Workers Union,

   Local 220, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,

   AFL-CIO, or any other labor organization, any provision requiring membership in such Union as a condition for participation in wage increases, compulsory sick leave, or other terms and conditions of employment.

   WE WILL NOT discriminate against any of our employees by denying them coverage under our collective-bargaining agreement with the abovenamed Union and by otherwise not granting our employees wage increases, paid sick leave, pensions, paid holidays, and other employment benefits because they are not members of the Union.

   WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities.

   WE WILL make whole, with interest, Patrice Manes and any of our other employees who presently are or who formerly were employed by us in the bargaining unit of the said Union since October 19, 1975, for any loss they may have suffered since that date by reason of our failure and refusal to give them wage increases, paid sick leave, paid holidays, paid vacations, insurance, pensions, and other terms and conditions of employment for the aforementioned period, to the same extent and manner as such benefits were granted to our union employees.

   SCHORR STERN FOOD

   CORP.

   DECISION STATEMENT OF THE CASE

   SCHORR STERN FOOD CORP.

   3. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts ROBERT M. SCHWARZBART, Administrative Law Judge:

   This case was heard on September 13, 1976, in Brooklyn,

   New York, pursuant to a charge' filed by Patrice Matins and a complaint issued on June 7, 1976.

   The complaint alleges that Schorr Stern Food Corp., herein the Respondent, has engaged in certain unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, herein the Act.

   The Respondent has filed an answer admitting certain of the allegations of the complaint but denying that it has violated the Act.

   At the hearing, the Respondent was represented by counsel and all parties were given full opportunity to appear, to introduce evidence, to examine and crossexamine the witnesses, to argue orally, and to file briefs.

   Upon the entire record, the briefs filed by the General Counsel and the Respondent, and upon my observation of the demeanor of the witnesses, I make the following:

   FINDINGS OF FACT

1. JURISDICTION The Respondent, a New York corporation with its principal office and place of business in Brooklyn, New York, is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of pickles and related products. During the past year, which period is generally representative of its annual operations, the Respondent, in the course and conduct of its business, purchased and caused to be transported and delivered to its Brooklyn place of business cucumbers and other goods and materials valued in excess of $50,000, of which goods and material valued in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from States of the United States other than the State of New York. Upon the foregoing facts, it is conceded and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   2. THE LABOR ORGANIZATION INVOLVED Food Packers, Cannery and Miscellaneous Workers Union, Local 220, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFLCIO, herein the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

      1 The charge was filed on April 19, 1976.

      2 Most of the facts herein have been stipulated 3 The Respondent's previous collective-bargaming agreement with the Union covering the term from December 10, 1971, to January 3, 1975, contains the same recognition article as appears in art I of the current agreement, described above.

      1651

      The Respondent,2 in business since 1947, voluntarily recognized the Union in 1950 as the collective-bargaining agent of certain of its employees. Since that time, the Respondent has continued to bargain with that Union and a series of collective-bargaining agreements has been executed.

      Under the language of article I of the current agreement, effective from December 10, 1974, to January 3, 1978, the Respondent agreed to recognize the Umon as 'the sole collective-bargaining agent' on behalf of a unit consisting of all of the Respondent's 'production, shipping, receiving, chauffeur, helper, sales, office and maintenance employees and such other employees performing work incidental thereto, employed by the Employer, in its establishment and all other establishments now operated, or hereinafter acquired and operated during the term hereof by the Employer, located in the State of New York, and/or the State of New Jersey, excluding non-working supervisors and such categories although excluded by the labor management relations act of 1947, as amended.' 3 The Respondent's plant in Brooklyn, New York, is involved in this proceeding.

      Article II of the contract, which provides for union security, makes continued employment contingent upon membership in good standing in the Umon after a grace period of at least 30 days.

      Article III of the collective-bargaining agreement provides for the checkoff of union dues. Union and nonunion members, all whom are employed within job classification encompassed within the unit description set forth in article I of the collective-bargaining agreement, perform like and related tasks at the Employer's premises. However, the terms and conditions of employment contained in the collective-bargaining agreement have been applied by the Respondent only to those employees employed in the classifications included in the contract unit description who actually are members of the Union. The only provisions of the contract which were not applied to the Respondent's union employees were article I, where, as noted, the Employer recognized the Union as the sole collectivebargaining agent on behalf of the employees in the unit described therein, and article II, the union-security provision.

      Since October 19, 1975, the start of the 6-month period cognizable under Section 10(b) of the Act,4 the Respondent has experienced employee turnover but has maintained a fairly constant complement of employees to perform duties in the work classifications encompassed in the contract...