Coastal Sunbelt Produce, (2012)

Docket Number:05-CA-036362
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.Coastal Sunbelt Produce, Inc. and Mayra L. Sagastume. Case 052013CA2013036362September 20, 2012DECISION AND ORDERBY CHAIRMAN PEARCE, AND MEMBERS HAYES AND BLOCKOn February 17, 2012, Administrative Law Judge Eric M. Fine issued the attached decision. The Respondent filed exceptions and a supporting brief, the Acting General Counsel filed an answering brief, and the Respondent filed a reply brief.The National Labor Relations Board has delegated 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 briefs1 and has decided to affirm the judge2019s rulings, findings,2 and conclusions3 and to adopt the recommended Order. 1 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties.The Respondent asserts that it has reserved the right to argue that Board Members Block and Griffin should be disqualified from ruling in this proceeding on the ground that their recess appointments to the Board by the President were invalid. For the reasons set forth in Center for Social Change, Inc., 358 NLRB No. 24 (2012), we reject this argument. 2 The Respondent has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s 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 judge2019s findings.3 We adopt the judge2019s conclusions that the Respondent unlawfully interrogated Mayra L. Sagastume in violation of Sec. 8(a)(1) of the Act and unlawfully discharged her in violation of Sec. 8(a)(3) and (1). With respect to the evidence of animus, the Respondent has excepted to the judge2019s reliance on the Respondent2019s antiunion campaign, its hiring of an outside consultant, and CEO John Corso2019s statement to employees that he felt stabbed in the back by the organizing campaign. The Respondent contends that the foregoing actions are protected by Sec. 8(c) of the Act. We find it unnecessary to rely on that evidence as proof of animus, because we find that the record amply demonstrates animus for the other reasons stated by the judge. We further find it unnecessary to rely on the judge2019s inferences as to Corso2019s knowledge of union activity on the part of Luis Hernandez, Sagastume2019s husband. Supervisors Joey Saia and Julio Ramos both knew of Hernandez2019 organizing activity, and Sagastume admitted her prounion sentiments to Ramos hours before the Respondent decided to discharge her. We impute the supervisors2019 knowledge to the Respondent, in the absence of credited testimony to the contrary. Gestamp South Carolina, LLC., 357 NLRB No. 130, slip op. at 10 (2011).Chairman Pearce and Member Block additionally do not rely on the judge2019s discussion of agency at footnote 77 of his decision, but instead affirm the judge2019s finding that the Respondent is liable for its supervisors2019 coercive statements regardless of specific authorization.ORDERThe National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Coastal Sunbelt Produce, Inc., Savage, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order.Dated, Washington, D.C. September 20, 2012Mark Gaston Pearce, ChairmanBrian E. Hayes., MemberSharon Block, Member(SEAL) NATIONAL LABOR RELATIONS BOARDM. Anastasia Hermosillo, Esq., for the Acting General Counsel. Kara M. Maciel, Esq., of Washington, D.C. and Evan Rosen, Esq., of Atlanta, Georgia, for the Respondent.Mayra Sagastume of Jessup, Maryland, for the Charging Party. DECISIONSTATEMENT OF THE CASEERIC M. FINE, Administrative Law Judge. This case was tried in Baltimore, Maryland, on July 18 to July 22, 2011. The charge was filed by Mayra L. Sagastume on January 5, 2011 against Coastal Sunbelt Produce, Inc.1 The complaint issued on March 31, 2011, as amended at the hearing, alleges that Coastal Sunbelt Produce, Inc., (referred to herein as Respondent or CSPC)2 through Julio Ramos on or about November 16 interrogated Sagastume by asking her about her husband2019s union activities; and that on or about November 18 Respondent terminated Sagastume because Sagastume formed, joined, or assisted the Drivers, Chauffeurs and Helpers, Local Union No. 639 a/w the International Brotherhood of Teamsters (the Union); engaged in concerted activities; and to discourage employees from engaging in these activities in violation of Section 8(a)(1) and (3) of the Act.3On the entire record, including my observation of the witnesses2019 demeanor, and after considering the briefs filed by the 1 All dates are in 2010 unless otherwise indicated.2 While the complaint names Respondent as Coastal Sunbelt Produce, Inc., Respondent was referred to on the record by Respondent2019s witnesses as Coastal Sunbelt Produce Company (CSPC). Respondent concedes in its posthearing brief that Coastal Sunbelt Produce, Inc. is appropriately alleged as the responsible party for Sagastume2019s termination.3 The complaint asserts Sagastume was terminated because of her union activities. However, counsel for the Acting General Counsel stated at the outset of the hearing the theory of the complaint was Sagastume was terminated because of her husband2019s union activities in violation of Sec. 8(a)(1) and (3) of the Act. Respondent was on notice of the Acting General Counsel2019s theory, and the issue was fully litigated and briefed by the parties.DECISIONS OF THE NATIONAL LABOR RELATIONS BOARDActing General Counsel and Respondent, I make the following4FINDINGS OF FACTI. JurisdictionRespondent, a corporation, with an office and place of business in Savage, Maryland, has been engaged in the business of providing fresh produce and dairy products to restaurant chains, independents, hotels, businesses, and food service companies throughout the east coast. During the 12-month period prior to March 31, 2011, a representative period, Respondent sold and shipped goods valued in excess of $50,000 to states outside of Maryland. Respondent admits and I find it is an employer engaged in commerce under Section 2(2), (6), and (7) of the Act and the Union is a labor organization under Section 2(5) of the Act.II. ALLEGED UNFAIR LABOR PRACTICESA. Respondent2019s OperationsRespondent admitted at the hearing the following individuals maintain the titles next to their names and they are supervisors and agents of Respondent: John Corso, chief executive officer; Mike Flanagan, chief financial officer; Erin Morgan, human resources manager; and Julio Ramos, supervisor. It was stipulated at the hearing that during the fall of 2010, Jim McWhorter was the vice president of sales; Jason Lambros was the vice president of purchasing; Tracy Moore was the vice president of operations; Stalio Callas was the operations day manager; Jennifer Caplinger was the transportation manager then became the logistics manager; Justin Callas was the night manager; Joey Saia was the fleet manager and that all the aforementioned were supervisors and agents of Respondent during the specified time period. Coastal Sunbelt, Inc. (CSI) is a holding company for three operating companies. CSI only employs executive managers. CSI is a holding company for: Coastal Sunbelt Produce Company (CSPC), a distribution business; East Coast Fresh Cuts (ECFC), a processing and manufacturing business; and for Coastal Sunbelt Leasing (CSL) a leasing company which leases assets to CSPC and ECFC.5 Corso is the president and CEO of CSI and CSPC. Ross Foca is the president and CEO of ECFC. Foca reports to Corso. Foca testified that although he is president of ECFC, Foca is not employed by that company. Rather, Foca has been employed by CSI. Foca2019s paycheck is from CSI, but the money comes from ECFC since CSI has no revenue.6 ECFC employees receive their pay checks from ECFC. Foca 4 In making the findings, I have considered the witnesses2019 demeanor, the content of their testimony, and the inherent probabilities of the record as a whole. In certain instances, I have credited some but not all of what a witness said. See NLRB v. Universal Camera Corp., 179 F. 2d 749, 754 (2d. Cir. 2), reversed on other grounds 340 U.S. 474 (1951). All testimony and evidence has been considered. If certain testimony or evidence is not mentioned it is because it is cumulative of the credited evidence, not credited, or not essential to the findings herein. Further discussion of the witnesses2019 credibility is set forth below.5 As set forth above, CSPC is alleged in the complaint as Coastal Sunbelt Produce, Inc.6 Corso; Dave Zeleznik, the general manager and vice president of ECFC; Tracy Moore, vice president of operations of CSPC; Jason Lambros, vice president of purchasing for CSPC; and Mike Flanagan, the chief financial officer for CSPC and ECFC, among some others, are also employed and paid by CSI.testified the money he is paid is allocated to the operating company which is ECFC. Foca2019s benefits and taxes are allocated to ECFC. Foca testified that all the individuals reporting to him work for ECFC, except for Zeleznik, who is also employed and paid by CSI. Zeleznik2019s pay is allocated to ECFC.Corso testified ECFC and CSPC are different businesses. ECFC is a manufacturing company, which means it changes the function of its product. CSPC is a...

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