Fernbach v. Raz Dairy, Inc.

• Decision Date: 29 June 2012
• Docket Number: No. 12 Civ. 4179(JCF).,12 Civ. 4179(JCF).
• Citation: 881 F.Supp.2d 452
• Parties: Karen P. FERNBACH, Regional Director, Region 2 NATIONAL LABOR RELATIONS BOARD, For and On Behalf of the National Labor Relations Board, Petitioner, v. RAZ DAIRY, INC. and Metro Dairy Corp., as a Single Employer, Respondent.
• Court: U.S. District Court — Southern District of New York

881 F.Supp.2d 452

Karen P. FERNBACH, Regional Director, Region 2 NATIONAL LABOR RELATIONS BOARD, For and On Behalf of the National Labor Relations Board, Petitioner,

v.RAZ DAIRY, INC. and Metro Dairy Corp., as a Single Employer, Respondent.

No. 12 Civ. 4179(JCF).

United States District Court,

S.D. New York.

June 29, 2012.

James C. Rucker, National Labor Relations Board, New York, NY, for Petitioner.

Gary Schoer, Syosset, NY, for Respondent.

MEMORANDUM AND ORDER

JAMES C. FRANCIS IV, United States Magistrate Judge.

On May 25, 2012, petitioner Karen P. Fernbach, Regional Director (the “petitioner” or the “Regional Director”) for Region 2 of the National Labor Relations Board (the “NLRB” or the “Board”), instituted this action against respondent Raz Dairy, Inc. and Metro Dairy Corp. as a single employer (the “respondent”), pursuant to Section 10(j) of the National Labor Relations Act (the “NLRA” or the “Act”), 29 U.S.C. § 160(j). The petitioner issued a Complaint and Notice of Hearing on April 27, 2012, alleging that the respondent has engaged in unfair labor practices in violation of Sections 8(a)(1) and (3) of the Act. The Complaint alleges that the respondent (1) interrogated employees about their union activities and sympathies, (2) warned employees of plant closure if they bring in the union as their bargaining representative, (3) threatened employees with discharge unless they refrained from engaging in union activities, (4) promised employees increased benefits and improved terms and conditions of employment if they refrained from engaging in union activities, (5) solicited employee complaints and grievances in order to deter unionization, and (6) discharged an employee because he engaged in union and concerted activities. The petitioner seeks an injunction enjoining the respondent from engaging in the charged conduct and reinstating the discharged employee pending the final disposition of proceedings before the NLRB. The parties have consented to proceed before me pursuant to 28 U.S.C. § 636(c). For the following reasons, the petition is granted.

BackgroundA. Facts

1. Respondent's Operations

The respondent consists of a pair of integrated companies engaged in the business of distributing dairy products to customers for resale. (Petition for Temporary Injunction under Section 10(j) of the National Labor Relations Act (“Pet.”), ¶ 6(a); Complaint and Notice of Hearing, Case No. 02–CA–071508 (“Compl.”), attached as Exh. 2 to Pet., ¶¶ 2, 3(a); Answer, Case No. 02–CA–071508 (“Ans.”), attached as Exh. 3 to Pet., ¶¶ 1–3). The respondent is partially owned by Edward Zastenik, and Elvis Echevarria and Mohammed Abdallah are its main supervisors.¹ (Pet., ¶ 6(e); Compl., ¶ 5; Ans., ¶¶ 1–3; Zastenik Aff., ¶ 5). The respondent employs at least 16 drivers, at least four office workers, two mechanics, and some loaders. (Abdallah Aff., ¶¶ 4, 8, 10–11). Mr. Abdallah hires most of the drivers, and communicates termination decisions to the subject employees. (Abdallah Aff., ¶¶ 5–6).

2. Respondent's Allegedly Unlawful Conduct

a. Interrogation of Employees and Threats of Plant Closure and Discharge

In September 2011, Luis Munoz, a delivery driver employed by the respondent, spoke to his co-worker Luis Perez, who provided him contact information for a union member employed at another milk and dairy distributor. (Affidavit of Luis Munoz dated Jan. 9, 2012 (“Munoz Aff.”), attached as Exh. 4 to Pet., ¶ 4; Affidavit of Luis Perez dated March 8, 2012 (“Perez Aff.”), attached as Exh. 5 to Pet., 58). A few days later, Mr. Munoz spoke to the union member about the benefits of obtaining union representation. (Munoz Aff., ¶ 5). Over the next couple of months, Mr. Munoz spoke to between 10 and 12 of his co-workers about unionization. (Munoz Aff., ¶ 6; Affidavit of Cristian Sanchez dated Feb. 9, 2012 (“Sanchez Aff.”), attached as Exh. 6 to Pet., ¶ 6).

At approximately 1:30 p.m. on December 23, 2011, Mr. Echevarria allegedly called Mr. Munoz's mother-in-law, Myrna Altreche, whom he had known since 1992. (Affidavit of Myrna Altreche dated Jan. 10, 2012 (“Altreche Aff.”), attached as Exh. 7 to Pet., ¶¶ 1, 3). Mr. Echevarria allegedly asked Ms. Altreche if Mr. Munoz was trying to unionize the respondent's employees,and stated, “[E]verybody is pointing the finger at him, and I can't have the union come in because they will put me out of business.” (Altreche Aff., ¶ 3). Ms. Altreche said that she did not know whether this was true and suggested that Mr. Echevarria speak with Mr. Munoz directly. (Altreche Aff., ¶ 3). A few minutes later, Ms. Altreche called Mr. Munoz, told him about her conversation with Mr. Echevarria, and suggested that Mr. Munoz speak with him. (Munoz Aff., ¶ 7).

At the end of his shift that day, Mr. Munoz went to speak with Mr. Echevarria. (Munoz Aff., ¶ 8). According to Mr. Munoz, Mr. Echevarria “gestured that [they] should walk to the left corner of the building outside the office, away from the direction” of the other individuals present. (Munoz Aff., ¶ 8). Mr. Echevarria then allegedly told Mr. Munoz that the company believed he had been trying to unionize the drivers, stating, “Everyone is saying that you are trying to form a union, that you are the ring leader. Why do you want to bring in the union for?” (Munoz Aff., ¶ 8). Mr. Munoz replied:

Well, basically we are tired of this. We are tired of the abuse—tired of working for six days and not get[ting] compensated. We don't get paid overtime. We always have to go through a war to get a day off, and the answer was always that “we don't have someone to replace you.” It's a lot of us feeling the same way. You guys never do anything about it. You guys promised us benefits but you never did anything about it. You took away the 10% [pay cut one year ago] and never gave it back to us. It's a slap in the face when you see the owner driving a Mercedes Benz and our pay is low.... Listen, I am not the ring leader. I do talk to other truck drivers to see where we all stand in the union situation. Many of us think the same because we are tired of the abuse. But that doesn't make me the ring leader.

(Munoz Aff., ¶ 8). A few minutes later, Mr. Echevarria allegedly called Mr. Munoz into an office and asked whether he was “with [him] or ... with the union,” and warned that the company would close if the employees unionized. (Munoz Aff., ¶ 9).

The following morning, December 24, 2011, Mr. Echevarria allegedly gave Ms. Altreche a “courtesy call” to inform her that the respondent would be terminating Mr. Munoz's employment that day, stating, “I am not going to let him put [me] out of business. I am sorry but today we are going to meet with him.” (Altreche Aff., ¶ 4). When Ms. Altreche protested, Mr. Echevarria apologized again and ended the call. (Altreche Aff., ¶ 4). Ms. Altreche then called Mr. Munoz and related what Mr. Echevarria had said. (Munoz Aff., ¶ 10).

According to Mr. Perez, around 1:00 p.m. that afternoon, Mr. Zastenik, Mr. Abdallah, and Mr. Echevarria confronted him in the truck yard and told him that he had been identified by Mr. Munoz and other employees as “the leader” of the unionization effort. (Perez Aff., ¶ 9). Mr. Perez told the three men that it was Mr. Munoz, not himself, that was the leader and denied talking to anyone about the union. (Perez Aff., ¶ 9). Mr. Echevarria then allegedly told Mr. Perez that Mr. Munoz was going to be terminated, and warned that Mr. Perez would also be fired if he attempted to recruit his co-workers to join the union. (Perez Aff., ¶ 9).

b. Termination of Mr. Munoz

When Mr. Munoz finished his shift later that day, he went to see Mr. Echevarria, who directed him to see Mr. Abdallah. (Munoz Aff., ¶ 11). According to Mr. Abdallah, he informed Mr. Munoz that he was being laid off for economic reasons, telling him, “We don't need you for now. If things get better, I'll give you a call.” (Abdallah Aff., ¶ 19). Mr. Munoz, on the other hand, claimed that Mr. Abdallah told him that he was being terminated because his delivery route was being eliminated. (Munoz Aff., ¶ 11). Mr. Abdallah stated that he was “not sure” if he told Mr. Munoz that he was eliminating his route, but admitted that the route was not, in fact, eliminated. (Abdallah Aff., ¶ 19).

In his affidavit, Mr. Zastenik claimed that Mr. Munoz was fired because “he failed to properly perform his job duties and because there was strong and convincing evidence that he was stealing from the Company.” (Zastenik Aff., ¶ 3). Specifically, Mr. Zastenik complained that Mr. Munoz: “had numerous tickets for double parking and for failing to stop at red lights,” “more often than other drivers ... reported damage to dairy products occurring as [a] result of his failure to properly secure items on his truck during delivery,” “failed to complete the required paper work of the job, including daily vehicle ... and customer credit reports,” “often gave customers credits that they were not entitled to receive,” and “[m]ost importantly, ... failed to collect and return milk crates that had been delivered to customers[,] and his truck, upon return at the end of a daily route, contained less product than it should have based on [his] sales records.” (Zastenik Aff., ¶ 9). In addition, Mr. Zastenik complained to Mr. Abdallah that Mr. Munoz was “taking the bridge when he was not suppose[d] to.” (Abdallah Aff., ¶ 15).

Mr. Zastenik also stated in his affidavit that, at the end of November 2011, he met with Mr. Munoz and “warned him that the deficiencies in his performance were becoming intolerable,” and that “failure to properly collect and account for crates, credits, cash receipts[,] and ‘lost’ product could not continue and that these failures led to the conclusion that some of the [c]ompany's money and/or property was ending up in his pocket.” (Zastenik Aff., ¶ 11). According to Mr. Zastenik, Mr. Munoz continued to submit deficient vehicle inspection reports, milk crate pickup documentation, and...