UFCW’s Demand for Arbitration|Is 20 Years Late, Employer Says

     MANHATTAN (CN) – A meat wholesaler seeks dismissal of a union’s demand for arbitration, claiming the butcher involved became “practically useless” after he repeatedly “injected drugs into his penis,” and that in the 20 years the man worked for the company, he “had never been a member of the union; he never sought to be in the union; the union never sought for Mr. Mercado to be a member of the union; and the company at all times treated Mr. Mercado as a management employee.”

     John W. Williams Inc. seeks stay of arbitration commenced by the United Food and Commercial Workers Union Local 342, AFL-CIO, in New York County Court.
     Williams claims, “While there are many jurisdictional issues and reasons why this arbitration should not proceed, the most problematic and substantive issue for the union and Mr. Mercado is that the claim is barred by the statute of limitations. The claim is late by about 20 years.”
     Williams then claims that for more than 20 years Leonardo Mercado never joined the union, and the union never claimed him as a member: “During the more than 20-year period that Mr. Mercado has worked for the company, he has not paid union dues and the union had never submitted a dues check-off statement seeking to have dues withheld from the pay of Mr. Mercado.”
     Williams adds that Mercado’s work performance “deteriorated very rapidly” during 2008- 2009. “During this time, Mr. Mercado had instituted and continued a practice of using drugs to stimulate his penis,” the complaint states. “He actually injected drugs into his penis with a needle, so as to get his penis hard and to keep it hard. The company believes this factor adversely affected the work performance of Mr. Mercado.”
     Williams claims that Mercado was given “numerous warnings” about his work performance, which continued to spiral downward “to such an extent that he was practically useless.”
     The complaint adds: “The company did not give notice of these warnings to the union or to the shop steward because Mr. Mercado was not a member of the union and no on thought of him as a member of the union.”
     Williams fired Mercado in January and told him his last day of work would be Feb. 5, the complaint states. It adds: “Despite the fact that Mr. Mercado has been terminated the prior week, on Monday, Feb. 8, 2010, Mr. Mercado presented the company with a union check-off authorization.”
     The union “threatened action against the company if it did not agree to rehire Mr. Mercado, and for that reason the company did rehire him, as a butcher, at $19 per hour,” according to the complaint, which adds, “Neither Mr. Mercado nor the union filed a grievance at that time about his pay rate.”
     Then, “On July 22, 2010, after he was re-hired, Mr. Mercado claimed that he injured himself lifting a carcass for butchering, and he stayed home from work, claiming workers’ compensation,” the complaint states.
     In August, the UFCW demanded that Mercado “should be paid at the rate of $22.00 per hour, not the rate of $19.00 per hour which is the rate at which he is being paid (when and if he does work) and which was the rate at which he was being paid when he went out of work on workers’ compensation,” the complaint states.
     The union citied “seniority” in demanding the $22 calculation. But Williams claims that “As a matter of law, Mr. Mercado has no ‘seniority.’ This claim is barred by the statute of limitations.”
     Williams wants the union’s demand for arbitration dismissed. It is represented by Kenneth J. McCulloch.

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