Newman Livestock 11, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 2014

361 N.L.R.B. 343 (N.L.R.B. 2014)

NEWMAN LIVESTOCK-11, INC. 343
Newman Livestock-11, Inc. and Ricardo Ascencio and
Efrain Asencio Loza and Jose Manuel Brambila.
Cases 32–CA–084178, 32–CA–084180, and 32–
CA–084191
August 28, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On November 26, 2013, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
General Counsel filed exceptions and a supporting brief.1
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 brief, and has decided to
affirm the judge's rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent discharged 15
employees in retaliation for their exercise of their Section
7 right to strike until they received wages they previously
had earned from the Respondent.3 He dismissed the
complaint, however, based on his finding that the Re-
spondent did not meet any of the Board’s jurisdictional
standards. Contrary to the judge, we find that the Re-
spondent met the Board’s nonretail-employer criteria for
asserting jurisdiction. We therefore find that the mass
discharge violated Section 8(a)(1) of the Act. We also
find, in turn, that the discriminatees are entitled to a
complete remedy of reinstatement, backpay, and notice.
I. JURISDICTION
The Board exercises discretionary jurisdiction over
nonretail employers that have a “direct” or “indirect”
business outflow or inflow of at least $50,000 across
state lines. Direct outflow refers to goods or services
provided out-of-state by the employer itself. Indirect
outflow refers to goods or services provided by the em-
ployer to in-state customers meeting any of the Board's
jurisdictional standards (except indirect outflow or in-
flow). In applying these measures, the Board adds direct
and indirect outflow together in order to determine
whether an employer meets the $50,000 threshold. Kan-
sas AFL–CIO, 341 NLRB 1015, 1017 (2004); Siemons
Mailing Service, 122 NLRB 81, 85 (1958). Here, the
record establishes that we have jurisdiction over the Re-
1 The Respondent did not except or respond to the General Coun-
sel’s exceptions.
2 The judge’s fact findings with respect to the mass discharge at is-
sue, which we adopt, implicitly credited the General Counsel’s wit-
nesses. The Respondent did not appear at the hearing despite having
received timely notice.
3 The Respondent has not excepted to this finding.
spondent based on indirect outflow—that is, its provision
of services worth more than $50,000, cumulatively, to
entities falling within the Board’s jurisdiction.
The Respondent, located at all relevant times in New-
man, California, slaughtered and processed livestock for
business customers. Beginning in October 2011, the
Respondent leased the slaughterhouse facility involved
here from Petaluma Livestock Auction Yard (PLAY), a
California livestock auction engaged in the selling of
livestock. For at least the first 3 months of the lease,
PLAY was one of the Respondent’s customers. There is
no dispute that PLAY met the Board’s jurisdictional
standards. The General Counsel’s complaint alleged—
and the Respondent admitted by not denying in its an-
swer—that during the 12-month period preceding March
31, 2012, PLAY sold and shipped livestock product val-
ued at more than $50,000 to customers outside Califor-
nia.4
The Respondent also sold its services to Southwest
Hide Co., a multistate processor and seller of animal
hides. As with PLAY, there is no dispute that the Board
would have jurisdiction over Southwest Hide. The com-
plaint alleged—and the Respondent similarly admitted
by not denying in its answer—that over the same 12-
month period ending March 31, 2012, Southwest Hide
sold and shipped goods worth more than $50,000 from
within California to customers outside California.
Accordingly, we look to the Respondent’s cumulative
sales of its services to PLAY and Southwest Hide to de-
termine whether we have jurisdiction over the Respond-
ent. The Respondent’s answer to the complaint admitted
that it made sales to PLAY of an unspecified value dur-
ing the relevant time period. The judge found that those
sales totaled at least $35,000, but were not shown to ex-
ceed that amount. The Respondent’s answer also admit-
ted, however, that it provided slaughtering services to
Southwest Hide in the amount of $20,793 over the period
alleged. In sum, then, the Respondent’s sales to PLAY
and Southwest Hide totaled $55,793, exceeding the ju-
risdictional threshold of the indirect outflow standard.
We will accordingly assert jurisdiction in this case.5
4 The Respondent’s answer to the complaint took the form of a letter
dated July 24, 2013, addressing several complaint allegations and ig-
noring others. Upon receiving the letter, the Region notified the Re-
spondent that unaddressed allegations would be treated as admitted and
extended the deadline for a supplemental response, but the Respondent
did not supplement its answer.
5 The judge mistakenly suggested that the Board’s jurisdiction was
impaired by the discharges having “occurred subsequent to the time
PLAY ceased doing business with the Respondent.” (The Respondent
failed to provide documentation that would have established the precise
date of the mass discharge.) Even assuming that the judge is correct as
to the sequence of those events (which is open to serious question from
the record), this would be irrelevant. It is well established that for the
361 NLRB No. 32

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344
Although not necessary to our finding that we have ju-
risdiction, we observe that this finding is confirmed by
additional evidence submitted by the Respondent to the
judge on October 23, 2013, after the record closed but
before the judge issued his decision. That evidence,
which included the Respondent’s own Board affidavits
and some of its business records, confirmed that the Re-
spondent sold more than $115,000 in services to PLAY
from October 2011 to January 2012, a period encom-
passed by the 12-month period preceding March 31,
2012. Although no party moved to reopen the record to
admit this evidence, the General Counsel waived his
right to object in order to rely on the admissions con-
tained therein. In view of the judge’s implicit admission
of this evidence in his decision, and the reliance of the
parties (particularly the Respondent) on this evidence, we
find that no due process rights would be impaired by
considering this evidence without formally reopening the
record.6 We therefore note these additional admissions
as confirming our finding that we have jurisdiction over
this Respondent.
II. THE MASS DISCHARGE
The judge, crediting the discharged employees’ testi-
mony, found that the Respondent fired them on or around
January 11, 2012, “for concertedly refusing to work until
they were paid the wages due them.” As noted, the Re-
spondent has not excepted to this finding. 7 We accord-
purpose of determining jurisdiction any 12-month period may be used
to assess a respondent’s interstate business, as long as that period is
reasonably related to the timing of the alleged violations, the unfair
labor practice charge, or the unfair labor practice proceeding itself. See
J & S Drywall, 303 NLRB 24, 29–30 (1991), affd. in relevant part sub
nom. NLRB v. Jerry Durham Drywall, 974 F.2d 1000 (8th Cir. 1992).
6 In cases where we have refused to consider evidence not included
in the record, we have usually been prompted to do so by a motion to
strike by the non-proffering party. E.g., Chicago Tribune, 316 NLRB
996 fn. 1 (1995), enf. denied on other grounds 79 F.3d 604 (7th Cir.
1996); California Distribution Centers, 308 NLRB 64 fn. 3 (1992). In
addition, apart from their use for impeachment, the Board has treated
Board affidavits as affirmative evidence in appropriate circumstances,
particularly where they are stipulated or admitted without objection.
Conley Trucking, 349 NLRB 308, 310–312 (2007), enfd. 520 F.3d 629
(6th Cir. 2008); Santa Maria El Mirador, 340 NLRB 715, 721 (2003);
Alvin J. Bart & Co., 236 NLRB 242, 243 (1978), enf. denied on other
grounds 598 F.2d 1267, 1271 (2d Cir. 1979) (finding that it was unnec-
essary to decide whether the affidavits at issue were correctly admitted
into evidence).
7 There is no merit, in any case, to the Respondent’s argument to the
judge that the General Counsel failed to establish that Linda Kanawyer,
who told the discriminatees they were fired, had the actual or apparent
authority to act for the Respondent in discharging the employees. The
judge clearly credited the discharged employees who testified that
Kanawyer was their supervisor. In addition, Kanawyer, in her own
affidavit to the Board, which the Respondent included in its October
23, 2013 submission to the judge, identified herself as the Respondent’s
“Plant Manager.”
ingly find that the mass discharge violated Section
8(a)(1).
III. REMEDY
The discharged employees did not quit their jobs and
committed no unprotected misconduct which would dis-
qualify them from a complete remedy.8 Their unlawful
discharges therefore converted their status from econom-
ic strikers to discriminatees, and they are consequently
entitled to reinstatement and backpay.9 Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). In accordance with
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB 102 (2014), we also shall require the Respondent
to file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters
and compensate the discriminatees for the adverse tax
consequences, if any, of receiving one or more lump-sum
backpay awards.
In addition, considering the lapse of time since the vio-
lation occurred and the possibility that a workplace post-
ing requirement will provide inadequate remedial notice
to the discriminatees, we will include a notice-mailing
requirement in our order regardless of whether the Re-
spondent remains in business. See The 3-E Co., 313
NLRB 12, 12 fn. 2 (1993), enfd. 26 F.3d 1 (1st Cir.
1994).
8 The judge implicitly discredited the Respondent’s earlier conten-
tion that the employees consumed alcohol outside the facility after
refusing to work.
9 E.g., Dino & Sons Realty, 330 NLRB 680, 688 (2000), enfd. 37
Fed.Appx. 566 (6th Cir. 2002). The judge incorrectly suggested that
even if the Board asserted its jurisdiction and found the mass discharge
unlawful, the appropriate remedy would be limited to notice-mailing.
He based this opinion on his inference that the Respondent was no
longer in business; on the discriminatees having informed the Respond-
ent they would not work until they received the pay they were owed;
and on the absence of any showing that they were paid or that they
requested and were denied reinstatement. However, like other discrim-
inatees unlawfully denied employment, the strikers had no obligation to
request or otherwise qualify for reinstatement; it was rather the Re-
spondent’s obligation to offer reinstatement to them. Pride Care Am-
bulance, 356 NLRB 1023, 1026 (2011); Dino &Sons Realty, supra, 330
NLRB at 688; Super Glass, 314 NLRB 596, 596 fn. 1 (1994); Abilities
and Goodwill, 241 NLRB 27, 27–28 (1979), enf. denied on other
grounds 612 F.2d 6 (1st Cir. 1979). We note, however, that our Order
requires the Respondent to offer the discriminatees, in relevant part,
“full reinstatement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions.” The existence of the discrimi-
natees’ former jobs or of substantially equivalent positions may depend
on whether the Respondent is still in business, see NLRB Casehandling
Manual (Part Three) Compliance Sec. 10532.2, as may the duration of
the backpay period, id. Secs. 10532.1, 10536.2. We leave these and all
other remedial matters to compliance.

NEWMAN LIVESTOCK-11, INC. 345
ORDER
The National Labor Relations Board orders that the
Respondent, Newman Livestock 11, Newman, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against its
employees for striking or engaging in other protected
concerted activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
employees Jonathan Alvarez, Omar Alvarez, Joel Ar-
royo, Efrain Asencio Loza, Ricardo Ascencio, Jose Ma-
nuel Brambila, Jose De Jesus Lopez, Benito Gonzalez,
Manuel Guerra, Jose Luis Juarez Suarez, Jesus Rodri-
guez, Sergio Salazar, Agustine Soltero, Luis Enrique
Vera, and Victor Vera 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.
(b) Make Jonathan Alvarez, Omar Alvarez, Joel Ar-
royo, Efrain Asencio Loza, Ricardo Ascencio, Jose Ma-
nuel Brambila, Jose De Jesus Lopez, Benito Gonzalez,
Manuel Guerra, Jose Luis Juarez Suarez, Jesus Rodri-
guez, Sergio Salazar, Agustine Soltero, Luis Enrique
Vera, and Victor Vera whole for any loss of earnings and
other benefits suffered as a result of the unlawful dis-
crimination against them, in the manner set forth in the
remedy section of this decision.
(c) Compensate Jonathan Alvarez, Omar Alvarez, Joel
Arroyo, Efrain Asencio Loza, Ricardo Ascencio, Jose
Manuel Brambila, Jose De Jesus Lopez, Benito Gonza-
lez, Manuel Guerra, Jose Luis Juarez Suarez, Jesus Ro-
driguez, Sergio Salazar, Agustine Soltero, Luis Enrique
Vera, and Victor Vera for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and file
a report with the Social Security Administration allocat-
ing the backpay award to the appropriate calendar quar-
ters for each individual.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Jonathan Alvarez, Omar Alvarez, Joel Arroyo, Efrain
Asencio Loza, Ricardo Ascencio, Jose Manuel Brambila,
Jose De Jesus Lopez, Benito Gonzalez, Manuel Guerra,
Jose Luis Juarez Suarez, Jesus Rodriguez, Sergio Sala-
zar, Agustine Soltero, Luis Enrique Vera, and Victor
Vera, and within 3 days thereafter, notify them in writing
that this has been done and that the discharge will not be
used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its 9th Street facility in Newman, California, copies of
the attached notice marked “Appendix,”10 in both
English and Spanish. Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In addition, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since January 1, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED AND MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post, mail, and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
10 We shall substitute a new notice to conform with Durham School
Services, 360 NLRB 694 (2014). If this Order is enforced by a judg-
ment of a United States court of appeals, the words in the notice read-
ing “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.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate
against you for going on strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jonathan Alvarez, Omar Alvarez, Joel Ar-
royo, Efrain Asencio Loza, Ricardo Ascencio, Jose Ma-
nuel Brambila, Jose De Jesus Lopez, Benito Gonzalez,
Manuel Guerra, Jose Luis Juarez Suarez, Jesus Rodri-
guez, Sergio Salazar, Agustine Soltero, Luis Enrique
Vera, and Victor Vera 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.
WE WILL make Jonathan Alvarez, Omar Alvarez, Joel
Arroyo, Efrain Asencio Loza, Ricardo Ascencio, Jose
Manuel Brambila, Jose De Jesus Lopez, Benito Gonza-
lez, Manuel Guerra, Jose Luis Juarez Suarez, Jesus Ro-
driguez, Sergio Salazar, Agustine Soltero, Luis Enrique
Vera, and Victor Vera whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings, plus interest compounded daily.
WE WILL compensate Jonathan Alvarez, Omar Alvarez,
Joel Arroyo, Efrain Asencio Loza, Ricardo Ascencio,
Jose Manuel Brambila, Jose De Jesus Lopez, Benito
Gonzalez, Manuel Guerra, Jose Luis Juarez Suarez, Jesus
Rodriguez, Sergio Salazar, Agustine Soltero, Luis En-
rique Vera, and Victor Vera for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file a report with the Social Security Ad-
ministration allocating the backpay awards to the appro-
priate calendar quarters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of employees Jonathan Alvarez, Omar Al-
varez, Joel Arroyo, Efrain Asencio Loza, Ricardo Ascen-
cio, Jose Manuel Brambila, Jose De Jesus Lopez, Benito
Gonzalez, Manuel Guerra, Jose Luis Juarez Suarez, Jesus
Rodriguez, Sergio Salazar, Agustine Soltero, Luis En-
rique Vera, and Victor Vera, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the discharge will not be used against them in
any way.
NEWMAN LIVESTOCK-11, INC.

The Board's decision can be found at
www.nlrb.gov/case/32–CA–084178 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Angela Hollowell-Fuentes, Esq., for the Acting General Coun-
sel
Esmeralda Zendejas, Esq., Migrant Worker Attorney California
Legal Assistance, Inc., of Stockton, California, for Ricardo
Ascencio and Effrain Ascencio Loza.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in 32–
CA–084178 was filed by Ricardo Ascencio, an individual, on
June 27, 2012. The charge in Case 32–CA–084180 was filed by
Efrain Ascencio Loza, an individual, on June 27, 2012. The
charge in Case 32–CA–084191 was filed by Jose Manuel
Brambila, an individual, on June 27, 2012. Thereafter, on June
20, 2013, the Regional Director for Region 32 of the National
Labor Relations Board (the Board) issued a complaint and no-
tice of hearing alleging a violation by Newman Livestock-11,
Inc. (the Respondent) of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The Respondent, in its answer to
the complaint, denies that it has violated the Act as alleged.
The Respondent did not appear at the hearing. The parties
were afforded a full opportunity to be heard, to call, examine,
and cross-examine witnesses, and to introduce relevant evi-
dence. Since the close of the hearing a brief has been received
from counsel for the General Counsel (the General Counsel),
and the Respondent has submitted a letter dated October 23,
2013, with accompanying documents, and another letter dated
November 12, 2013, in the nature of a reply brief. Upon the
entire record, and based upon my observation of the witnesses
and consideration of the brief and letters submitted, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent in its answer to the complaint has contested
jurisdiction.
The complaint alleges and the Respondent’s answer does not
deny that at all material times the Respondent has been a Cali-
NEWMAN LIVESTOCK-11, INC. 347
fornia corporation with an office and place of business in
Newman, California, and has been engaged in the slaughtering
and processing of livestock. The record shows that the Re-
spondent was no longer in business after May 2012.
Manuel Brazil testified that he is president of Petaluma Live-
stock, a livestock auction engaged in the selling of livestock to
customers inside and outside of the State of California. Asked
approximately how much business Petaluma Livestock did with
Bartell’s Meat, located in the State of Oregon, from about mid-
2011 to mid-2012, Brazil testified that “Without looking at my
records, it could be anywhere from 100 to 150,000 during that
period.”
Brazil testified that the Respondent leased the Newman, Cal-
ifornia slaughterhouse from Petaluma Livestock beginning on
October 11, 2011. Further, Brazil testified that from October
11, 2011 “until approximately I believe December, same year,”
less than a 2- or 3-month period, Petaluma did business with
the Respondent in the amount of “Gee, without looking at my
records, I would approximately (sic) on a weekly basis any-
where from 5,000 to 10,000 weekly.” Moreover, at the time of
the alleged unfair labor practices herein, infra, it is clear that the
Respondent was not doing business with Petaluma Livestock.
Brazil, who repeatedly said he did not look at his records,
was not asked to produce any records to substantiate his ap-
proximations either with regard to dates or dollar volume of
business with either Bartell’s Meat or the Respondent.
On the basis of the foregoing it is clear that the General
Counsel has failed to definitively show that the volume of busi-
ness exceeded $50,000 during the short period Petaluma Live-
stock did business with the Respondent.1 While the General
Counsel interprets Brazil’s testimony to imply that the business
relationship extended from October 11 through December
2011, this is not what Brazil testified. Rather, he testified that
the business relationship lasted from October 11, 2011 “until
approximately I believe December, same year.” Accordingly,
the business relationship, if it continued into December, could
have ended December 1. Assuming the business relationship
ended on December 1, this means there was less than a 7-week
business relationship between the two entities. Moreover, given
Brazil’s uncertainty and his speculation regard the weekly
amount of business with the Respondent, there is no way to
definitively ascertain from the record evidence whether during
the indefinite period in question the total dollar volume of busi-
ness exceeded $50,000 and thereby met the Board’s standard
for asserting jurisdiction under its indirect outflow standard. In
re Townley Sweeping Service, 339 NLRB 301, 301 fn. 4 (2003);
Siemons Mailing Service, 122 NLRB 81 (1958).
Accordingly, I shall dismiss the complaint on this basis.
1 Moreover, the alleged unfair labor practices occurred subsequent
to the time Petaluma Livestock ceased doing business with the Re-
spondent.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The complaint alleges that the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act by discharging employees who
concertedly refused to continue working for the Respondent
until they were paid their back wages.
B. Facts and Analysis
Victor Vera testified that he began working for the Respond-
ent in October, 2011 and stopped working for the Respondent
at the beginning of January, 2012. He performed a variety of
duties, including butchering duties. His supervisor was Linda
Kanawyer, plant supervisor or manager. In early January 2012
he and some 15 to 17 of his coworkers were not being paid on a
regular basis. The discussed the matter among themselves and
one day in early January they collectively decided to meet in
the Respondent’s parking lot and to refuse to work until they
were paid their back wages. Kanawyer confronted them in the
parking lot and, according to Vera, “she asked each one of us
and say that if we didn’t work, we were basically fired.” She
said, “You’re ‘F’ fired basically.” Vera had the keys to the
plant and Kanawyer asked him for the keys. After they were
fired they left the premises and have not returned to work. Con-
trary to contentions made by the Respondent in communica-
tions with the Regional Office, Vera testified that none of the
employees were drinking alcohol either inside or outside the
facility.
Employee Jose de Jesus Lopez testified similarly to Vera.
Lopez further testified that approximately five or six or more
employees returned to the facility the following day “just to
claim our money.” Hillel Shamam, the Respondent’s owner,
came out and talked to them and, according to Rodriguez, said,
“when I have your money, I’ll pay you and give you a call.”2
On the basis of the foregoing I find that the employees were
discharged for concertedly refusing to work until they were
paid the wages due them. Such conduct is violative of the Act.
See Ablon Poultry & Egg Co., 134 NLRB 827, 829 (1961);
Toledo Commutator Co., 180 NLRB 973, 977 (1970). In the
event the Board had jurisdiction over the Respondent, the viola-
tion would warrant the mailing of an appropriate notice, as the
Respondent is no longer in business. It appears that backpay
would not be due any employees subsequent to their termina-
tions, as they had decided not to return to work until they were
paid what was owed them, and there is no showing that they
were paid what was owed them or requested reinstatement and
were nevertheless refused reinstatement.
[Recommended Order omitted from publication.]
2 While this scenario comports with the Respondent’s apparent posi-
tion that the employees were not discharged but simply refused to work
until they were paid the wages due them, nevertheless the record evi-
dence establishes, I find, that the employees were told they were fired.