C-Town

National Labor Relations Board - Board Decisions

Sep 12, 1986

281 N.L.R.B. 458 (N.L.R.B. 1986)

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JCO Food Corp., d/b/a C-Town and Sabina Perez.
Case 2-CA-21013
12 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTsoN AND MEMBERS
JOHANSEN AND BABSON
On 17 December 1985 Administrative Law
Judge D. Barry Morris issued the attached deci-
sion. The General Counsel and the Respondent
filed exceptions and supporting briefs and the Re-
spondent filed an opposition to the General Coun-
sel's exceptions.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions as modified.
We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging employee Sabina Perez. Contrary to the
judge, however, we find that Perez is entitled to
reinstatement.
On 3 April 1985 Perez was discharged by the
Respondent in violation of the Act. The next day,
she went to the Respondent's workplace, as in-
structed, to pick up her check. While on the prem-
ises, Perez went to the meat department where she
used to work and saw the replacement who had
taken her job. Perez, in the presence of her re-
placement and another employee, commented that
she was a Puerto Rican and not a "shit Domini-
can."
The judge found that this outburst rendered
Perez unfit for reinstatement. The judge reasoned
that since both the replacement and the president
of Respondent are of Dominican descent Perez' re-
instatement would lead to future strained relations
in the workplace.
When restoring the status quo ante in cases of
unlawful discharge the Board's conventional reme-
dies are reinstatement and backpay. The Board has
denied employees who have been discriminatorily
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Pralucts, 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 findings.
In its exceptions the Respondent contends that employee Sabina Perez
has not mitigated damages by failing to exercise reasonable diligence in
securing substantially equivalent employment. We find it unnecessary to
pass on the merits of this argument at this time inasmuch as this issue is
appropriately raised at the compliance stage of these proceedings.
discharged the Act's traditional remedies when
they have engaged in serious misconduct which
renders them unfit for future employment with
their employer.2 But not every impropriety de-
prives the offending employee of the protection of
the Act. The Board looks at the nature of the mis-
conduct and denies reinstatement in those flagrant
cases "in which the misconduct is violent or of
such character as to render the employees unfit for
further service."3
In the instant case, Perez' comment was unac-
companied by threats or violence. Perez' outburst
was prompted by observing her replacement al-
ready at work. Perez had been unlawfully dis-
charged only the day before. While we do not con-
done Perez' ethnic slur, Perez' conduct is not of
such a serious or flagrant nature to warrant with-
holding the Board's traditional reinstatement
remedy.4 Accordingly, we shall order that Perez
be reinstated. 5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, JCO Food Corp., d/b/a C-Town, Bronx,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer employee Sabina Perez immediate and
full reinstatment to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any loss of pay suffered as a result of
the unlawful discharge, with interest, in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1980),
and Florida Steel Corp., 231 NLRB 651 (1977)."
2. Substitute the attached notice for that of the
administrative law judge.
2 Roure Bertrand Dupont, Inc., 271 NLRB 433 (1984)
J. W Microelectronics Corp., 259 NLRB 327 (1981).
4 The Respondent's backpay liability shall continue until Perez receives
a valid offer of reinstatement.
5 The employee misconduct in Hillside Avenue Pharmacy, 265 NLRB
1613 (1982), a case heavily relied on by the judge, was much more egre-
gious than that which occurred here.
281 NLRB No. 72
C-TOWN 459
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found,
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
'o organize
To form, join, or assist any union
TO, bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities. '
WE WILL NOT discharge or otherwise - discrimi-
nate against any of you for supporting United Food
and Commercial Workers Union, Local 174, AFL-
CIO or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE wILL offer Sabina Perez immediate and full
reinstatement to her former job or , if that job no,
longer exists, to a 'substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed and WE
WILL make , her whole for any loss of earnings and
other benefits resulting from - her discharge , less any
net interim earnings, plus interest. - "
- WE WILL notify Sabina Perez that we have re-
moved from our files any reference to her dis-
charge and that the discharge will not be used
against her in any way.
JCO'FooD CORP., D/B/A C-TowN
Polly Chip Esq., for the General Counsel.
Peter R. Shipman, Esq.,, of Bronx, New York, for -the Re-
spondent.
Gerald Richman, Esq. (Shapiro, Shiff, Beilly, Rosenberg &
Fox), of New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative' Law Judge. This
case was heard before me in New York City on 12 and
13 August 1985.1 On a charge filed on 22 April and
1 All dates refer to 1985 unless otherwise specified.
amended on 24 May a complaint was issued on 5 June
alleging that JCO -Food Corp., d/b/a- C-Town ( Respond-
ent) violated Section 8(aXl) and (3) of the National
Labor Relations Act, by discharging its employee,
Sabina Perez . Respondent filed an answer denying the
commission of the- alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence , examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the
General Counsel and by Respondent. - "
On the entire record of the case, including my obser-
vation of the demeanor ' of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, with a place of
business in Bronx, New York, is ` engaged - in the oper-
ation of a retail supermarket selling foodstuffs, beverages,
and other goods. It annually derives gross revenues in
excess of $500,000 and purchases and receives at its
Bronx facility goods valued in excess of $35,000 from en-
terprises located outside New York State. Respondent
admits that it is an employer engaged in commerce
within the meaning of Section 2(2),. (6), and (7) of the
Act, and I so find . In addition,, I find that United Food
and Commercial Workers Union, Local 174, AFL-CIO
(the Union) is a labor organization within ,the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Discharge
Sabina Perez worked for C-Town, a Bronx supermar-
ket, for approximately 10 years. At the time of her dis-
charge she was working as a meat wrapper. She worked
40 hours per week at a salary of $417 plus benefits, and
was a member of the Union . On 29 March C-Town was
acquired by Respondent. Perez worked on 2-April and
had the day off on 3 April. During the afternoon of 3
April, Perez was called at home by one of Respondent's
office employees who told her to "come to the store and
pick up my , check." Because Perez was not due to be
paid until Saturday, 6 April, she, knew that the phone
call meant that she was being fired. She immediately
placed a call to her union representative.
On the morning of 4 April, Perez went to the store
and 'spoke to Julio Ortiz, president of Respondent. Perez
credibly testified that she asked: Ortiz why she had been,
discharged and he told her "he didn't want the union
and that for half of my' pay he could get someone [to]
work six days ." Later that morning Robert Felice, the
Union's executive vice- president , came to the store.
Felice also asked Ortiz why Perez had been discharged.
Ortiz replied that "he didn 't want [Perez], he didn't want
the union." -
Felice corroborated Perez' testimony. He testified that
at the 4 April meeting he told Ortiz:
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Y]ou are doing the wrong thing . She is a union
girl. It is her job. She has been here and you can't
fire her for being a union girl. He says well I don't
want no union . I don't want the union . That is it.
Felice further credibly testified that Ortiz did not give
any other reason for discharging Perez.
James Cuniglio, the Union 's vice president and busi-
ness representative , testified that he went to Respond-
ent's place of business in April after Perez was fired. He
asked Ortiz about putting Perez "back to work" and
Ortiz answered , "He didn 't care for the union ." Cuniglio
also credibly testified that Ortiz did not give any other
reason for having discharged Perez.
On direct examination, Ortiz testified that he dis-
charged Perez because of a summons he received for the
meat department being dirty ; because Perez refused to
clean a glass divider in the meat department ; because of
her excessively long conversations with customers; be-
cause she threw away meat ; and because she was an
"enemy" of himself and of the Company . Ortiz further
testified that Perez made disparaging racial remarks both
before and after her discharge.
Pedro Colon, the manager of the meat department, ap-
peared to me to be a credible witness . He testified that
although there were occasions when Perez "talked with
the customers," he "let her do it." He further testified
that he never asked Perez not to refrain from such con-
versations . In addition , he testified that Perez did not
throw out meat but, instead , if there was meat to be
thrown out, it was his job to do so.
B. Postdischarge Remarks
Perez was replaced by Deysi Mercado Toribio, who
began working on 4 April at a salary of $175 per week.
Colon credibly testified that on Toribio's first day of
work Perez came into the room where both Colon and
Toribio were standing and said , in Toribio's presence,
"I'm PR, I'm not a full of shit Dominican." Toribio is of
Dominican extraction . Colon's testimony was corroborat-
ed by Toribio, who stated that Perez said "she was a
Puerto Rican and . . . wasn't a shit Dominican."
C. Conclusions Concerning Discharge
I credit Perez' testimony that when she was dis-
charged Ortiz told her that he did not want the Union
and that he could get someone for half her salary. This
was corroborated by Felice and Cuniglio . In addition,
the three credibly testified that Ortiz gave no other
reason for the discharge . Indeed , Perez, whose salary
had been $417 per week, was replaced by Toribio whose
salary was $ 175 per week.
Although Ortiz testified that Perez was discharged for
several reasons , I have not credited his testimony, which
contains several inconsistencies . On direct examination,
Ortiz testified that one of the reasons why Perez was dis-
charged was because of the summons he received for the
meat department being dirty. On cross-examination,
however, Ortiz conceded that he first became aware of
the summons a week after Perez' discharge and that the
summons was issued not just because the meat depart-
ment was dirty, but also because of "other things that
were wrong." In addition , one of the reasons Ortiz gave
for the discharge was that Perez had lengthy conversa-
tions with customers . Perez denied that the conversations
were lengthy and she explained that the customers asked
her questions "like how's the meat, what 's the prices or
sometime[s] they even ask me how to cook it and if I
know, I will explain to them." In addition , Colon, the
meat department manager, stated that he permitted her
talking with the customers and he never told her not to.
Ortiz also gave as a reason for her discharge the prac-
tice of Perez to throw out meat . Colon, however, denied
that Perez did this and stated that if there was meat to be
thrown out it was his job to do it . Concerning Ortiz' tes-
timony that racial remarks were made by Perez before
her discharge, Colon, Toribio, and Paradis all testified
that the racial remarks concerning Dominicans were
made after the discharge . Concerning the alleged failure
by Perez to clean the glass in the meat department,
Perez denied that the request was made and Ortiz did
not personally make the request nor did he personally
hear Perez ' supposed response.
Finally, the General Counsel asked Ortiz:
Q. Isn't it true, Mr. Ortiz, that you told Mr.
Colon that it wasn't necessary for him to appear
today in answer to the subpoena that was sent to
him by me?
A. I was not aware that Mr. Colon had to come
here today.
Colon, however, whom I have credited, stated that the
previous day Ortiz told him that it was "unnecessary"
for him to come to the hearing and that on the day
Colon testified both he and Ortiz came to the hearing to-
gether.
Based on the above I fmd that Respondent discharged
Perez because she belonged to the Union. At the time of
the discharge no other reason was given . Although at
the hearing Ortiz testified to various reasons for the dis-
charge , I find these reasons to be clearly pretextual. See
United Plastics, 261 NLRB 1328 (1982); Limestone Appar-
el Corp., 255 NLRB 722 (1981 ), enfd . 705 F.2d 799 (6th
Cir. 1982).
D. Conclusions Concerning Postdischarge Remarks
I have credited the testimony of Colon and Toribio
and find that after Perez was discharged she came to the
supermarket and stated, in Toribio 's presence , that "she
was a Puerto Rican and wasn 't a shit Dominican." Both
Toribio and Ortiz are of Dominican extraction.
CONCLUSIONS OF LAW
1. JCO Food Corp., d/b/a C-Town is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Perez because of her membership in
the Union, Respondent violated Section 8(a)(3) and (1) of
the Act.
- C-TOWN
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order Re-
spondent to cease and desist therefrom and to take fur-
ther action necessary to effectuate the policies of the
Act. -
An issue is raised concerning the appropriate remedial
order for the unlawful -discharge . I have found above
that on the-day after Perez was discharged , when she
came to pick up her check , she stated in the presence of
her replacement, Toribio, that "she was a Puerto Rican
and wasn't a shit Dominican." Toribio, who at the time
of the hearing was still employed at Respondent, is of
Dominican extraction , as is also the president of Re-
spondent, Ortiz. The question is thus whether this post-
discharge remark constitutes serious misconduct that ren-
ders Perez unfit for future service with Respondent. See
Roure Bertrand Dupont, Inc., 271 NLRB 443, 444 (1984).
Misconduct after discharge may warrant denial of re-
instatement, depending on the nature of the misconduct
and the "likelihood that it will lead to future strained re-
lations on the job if the employee is returned to work."
Hillside Avenue Pharmacy, 265 NLRB 1613, 1622 (1982).
On the other hand, the "employer ought not to be al-
lowed, as a matter of course , to profit from his own
wrongful misconduct and be wholly exonerated from the
Act's sanctions because the employee likewise was at
fault." Fairview Nursing Home, 202 NLRB 318, 325 fn. 36
(1973).
In the instant proceeding Perez was discharged solely
because she was a union member . After her discharge she
made disparaging remarks about Dominicans. One of the
employees who heard the remarks was Toribio , a person
of Dominican extraction . In addition, Ortiz , the president
of Respondent is Dominican . Inasmuch as the meat de-
partment contains only two or three employees and, at
the time of the hearing , Toribio was still employed there,
I believe that if Perez were ordered to be reinstated the
likelihood exists that it would lead to "future strained re-
lations on the job."
Although Respondent contends' there should be nei-
ther reinstatement nor backpay , citing Clear Pine Mould-
ings, 268 NLRB 1044 (1984), that case involved picket
line and strike misconduct . Similarly, in Roure Bertrand
Dupont, supra, while the Board also denied both rein-
statement and backpay, the misconduct, which was seri-
ous, occurred prior to discharge . The Board stated (271
NLRB at 444445):
We do not believe that ... the purposes and
policies of- the Act will be furthered by awarding
reinstatement and backpay to an employee who
prior to his discharge purposefully disregards the
safety of employees and nonemployees and inten-
tionally attempts to injure them and the public at
large.
In Roure Bertrand Dupont, which was decided subse-
quent to Clear Pine Mouldings, and in which the Board
specifically discussed the latter decision , the Board cited
with approval (at fn. 7) Hillside Avenue Pharmacy , supra,
and Fairview Nursing Home, supra. In Hillside Avenue
461
Pharmacy, reinstatement was not ordered but the discri-
minatee was made whole for_all . losses he suffered from
the date of his discharge until, he , obtained substantially
equivalent employment elsewhere.
I do not believe that Perez' disparaging remarks con-
stituted misconduct of such a serious nature to warrant
the denial of backpay: However,` I believe that her dis-
paraging -remarks against Dominicans renders her "unfit
for future service" with.. Respondent. Accordingly, as
was done in Hillside Avenue Pharmacy , supra, I shall not
require Respondent to reinstate Perez, but shall order
Respondent to make her whole for all monetary losses
that she may have suffered by the reason of her discrimi-
natory discharge on 3 April until she obtains substantial-
ly equivalent employment elsewhere.2
I shall also order that Respondent remove from its
files any reference to the discharge of Perez and notify
her in writing that it has done so and that evidence of
the discharge will not be used against her in any way.
Sterling Sugars, 261 NLRB 472 ( 1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, JCO Food Corp., d/b/a C-Town,
Bronx, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees for activities protected by
Section 7 of the Act.
(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) Make whole Sabina Perez for all losses of pay she
may have suffered by reason of Respondent's unlawful
discharge in accordance with the remedy section of this
decision.
(b) Remove from its files any reference to the unlawful
discharge of Sabina Perez and notify her in writing that
this has been done and that the discharge will not be
used against her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
2 Backpay shall be computed in the manner prescribed in F. W. Wool-
worth, Co, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumb-
ing Co., 138 NLRB 716 (1962); and Florida Steel Corp., 231 NLRB 651
(1977).
a If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shell, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its facility in Bronx, New York, copies of
the attached notice marked "Appendix."4 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by Respondent 's authorized
4 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al 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."
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.