Associated Food Inc.

ASSOCIATED FOOD INC 735 Associated Food Inc and Morris Todres Case 29-CA-2698 December 4, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 11, 1972, Administrative Law Judge' Bernard J Seff issued the attached Decision2 In this proceeding Thereafter, the Charging Party filed exceptions and a supporting brief The Respondent filed an answering brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety I The title of Trial Examiner was changed to Administrative Law Judge effective August 19, 1972 2 The Administrative Law Judge s Decision inadvertently named Local 318 the correct union name is Local 138, International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America 3 The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to overrule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products Inc 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J SEFF, Trial Examiner This matter was heard in Brooklyn, New York, on July 13, 1972 The complaint issued on May 26, 1972, based upon charges filed by the above-named Charging Party (herein known as Todres) on January 18, 1972,1 alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to transfer Todres from the night to the day shift Respondent's answer denies the commission of the unfair labor practices alleged, but admits allegations of the complaint sufficient to support the assertion of jurisdiction under current standards of the Board ($50,000 annual interstate inflow and outflow) The answer further admits that the Union (Local 318) is a labor organization within the meaning of Section 2(5) of the Act Upon the entire record in this case, from the observation of the witnesses,2 and after due consideration of the brief submitted by the Respondent, the Trial Examiner makes the following FINDINGS AND CONCLUSIONS I THE ISSUES The General Counsel contends that Respondent refused to transfer Todres because Mr Todres, in the course of his employ has taken it upon himself to espouse the union principles to his fellow employees He has proceeded to help employees on his shift when he felt injustices were done by either the union or the employer Over the years employees have come to regard Mr Todres as a legal counsel or advisor, someone to look to, someone who is knowledgeable in union matters, someone who is familiar with the union contract As a result of this activity Mr Todres has had a series of conversations with Mr Bond (Company Vice President and an admitted agent of Respondent) over the years a number of conversations involving one or more of the activities he had engaged in either on behalf of himself in some cases or on behalf of employees in most other cases Over the years Mr Bond and Mr Todres have developed opposite points of view with respect to these activities Since about 1957 as the result of ill health, bursitis, high blood pressure, and slightly failing vision, Todres has been requesting a change from the night shift to the day shift In the beginning the requests were made to the union delegate, a Mr O'Neil When these requests proved fruitless, certain conversations were held with Bond According to the General Counsel in September 1971, Todres sought to change his shift from the night to the day shift and in the course of his conversation, Bond "stated flat out that he would not transfer Mr Todres to the day shift because Mr Todres was a thorn in his side, that he wanted to fire him, wanted to get rid of him He was an adviser to the people and that he didn't want him on days " As a result of this activity Todres sought redress through the Union without success and ultimately filed the charge which is the basis of the instant case For its part the Respondent, through the lips of its vice I All events took place in 1972 unless otherwise indicated 2 The testimony of all witnesses has been considered In evaluating the testimony of each witness demeanor was relied upon In addition inconsistencies and conflicting evidence were considered The absence of a statement of resolution of a conflict in specific testimony or of an analysis of such testimony does not mean that such did not occur See Bishop & Malco Inc d/b/a Walkers 159 NLRB 1159 1161 Further to the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon to believe some and not all of a witness testimony N LR B v Universal Camera Corporation 179 F 2d 749, 754 (CA 2) 200 NLRB No 110 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president, Bond, testified that the Company knew nothing about the condition of Todres' health and Bond flatly denied having made the statements attributed to him by Todres The only issue in the case concerns the credibility of Bond versus Todres II THE FACTS A The Company's Business Operations Respondent maintains its principal office and place of business at 175-45 Brinkerhoff Avenue, St Albans, New York, where it is engaged in the wholesale sale and distribution of food products Vice President Charles Bond has been employed by Respondent for 30 years He has held the position of vice president since 1954 His main duties included acting as head buyer, he also was in charge of the warehouse, personnel, and the productivity of the operation Bond also explained that the Company has contractual relationships with the electricians, engineers, produce, and butcher's union in addition to Locals 138, 338, and 1500 which are unions representing retail employees Bond characterized all of the Company's relations with unionized employees as being extremely amicable He went on to say that Respondent had never taken adverse action against any employee because of union membership or union activity Bond's assertions in this regard were not controverted by the General Counsel Respondent's warehouse supervisor, Erasmus Manza, testified without refutation that he is in charge of the daytime grocery operation Manza at one time was a shop steward for Local 318 and still maintains his membership in the Union Manza went on to explain that there is a vast difference between working in the grocery warehouse department and in the night frozen food department For one thing there are approximately 4,700 items handled in the grocery department whereas there are only about 700 items handled in the night frozen food department The Company employs a total of approximately 150 employees and does a gross volume of business in excess of $50 million dollars a year Bond testified that the difference between the day grocery department and the nighttime frozen food depart- ment is about like the difference between day and night Because of this fact the Company has a policy of not transferring workers from the night job to work in the day warehouse operation Bond frankly admitted that on three separate occasions over the past 15 or so years, despite its policy of not transferring employees from night to daywork, there were special problems for the three employees involved in these transfers The three exceptions to the Respondent's policy con- cerning transfers were described as follows An employee named Thomas Nebgen was the night foreman He suffered a nervous breakdown, explained to Bond that he could no longer stand mghtwork and had been employed, previous to his nighttime assignment, in the daytime grocery department In response to this request Nebgen was reassigned to the daytime job from where he had formerly worked Another employee, Tommy Reynolds, came to see Bond in 1965 to request that he be transferred back to the day grocery warehouse job where he had formerly been working Reynold's wife had had a nervous breakdown and implored her husband to change his job back to daywork because she was fearful of being alone at night Here again Respondent reassigned Reynolds to the day shift where he was familiar with the work and had formerly been employed The third occasion involved one John McDermott In 1965 or 1966 the Company had an outside truckman by the name of Jack Brannan who offered to hire McDermott because Brannan was short of chauffeurs McDermott preferred daywork to continuing on his night job with Respondent Consequently he left the Company to go to work for Braiman It should be noted that in the cases of Nebgen and Reynolds both of them had initially been employed on the day shift grocery job and when their requests for transfers were made they went back to work on jobs they had previously held in the grocery department Bond categorically denied that he ever heard about Todres' alleged illnesses and he further stated unequivocal- ly that Todres was not any more active a union man than about 20 percent of Respondent's other employees In fact he testified that the Company was unaware of Todres' union activities which were no more conspicuous than the activities of one-fifth of Respondent's other employees Bond impressed me with his candor while he was on the witness stand He gave his testimony in a direct, forceful, and apparently honest fashion I credit his testimony B The Employment Record of Todres Todres has been working for the Respondent for 18-1/2 years Bond testified that he was a good worker and performed well on his job as checker Bond also stated that he worked during daytime hours and spent about 99 percent of his time doing administrative work at his desk He rarely visited the night warehouse men because , for the most part, he left for home before the mghtmen reported for duty At most he said he occasionally stopped in at the warehouse in the evening about five or six times in the past 15 years On these visits he did not have protracted conversations with the employees but did know most of the men by their first names Bond continued to say that he never had a three-way conference with Jimmy O'Neil (the union delegate), Todres, and himself He did recall Todres visiting him in his office and he may have had possibly three occasions when Todres requested a transfer to daytime work These conversations took place over a long span of years Each time he declined the requests of Todres and explained the Company's policy against transfemng men from the night frozen food department to the day grocery department Bond also testified that Todres never told him about his poor health Apart from the three instances of transfers referred to supra, the Company maintained a consistent policy of not transferring men from the night shift to the day shift Bond strongly refuted the testimony of Todres that he had ever said to any employee he would not transfer ASSOCIATED FOOD INC 737 Todres but instead wanted to fire him I credit Bond's denials of the story told by Todres C Resolution of the Conflict in the Testimony of Bond and Todres Todres replied to most of the questions put to him both on direct and cross-examination in a rambling series of what could be called not answers but speeches His answers were seldom direct or relevant to the point under inquiry He gave the distinct impression that he regarded himself as the self-appointed and self-annointed guardian of both his own rights and the rights of his fellow employees He professed to be well informed about the rights of the employees as specified in their collective- bargaining agreement with Respondent His protestations in this regard were not borne out by his testimony He was not the elected representative of the employees It should be noted at this juncture that in the approxi- mately 20 odd years of contractual relations between the parties there does not appear to be one word in their long series of agreements spelling out any union authority concerning Respondent's right to make transfers of its employees Since the contract is silent on this point Respondent has always regarded the subject of transfers as being encompassed within the management rights section of the agreement with Local 318 Furthermore Todres cannot claim that his contentions with respect to transfer were not fairly presented to the Company by the Union First of all he admitted that he did not initially bring his complaint to his union representative When he finally did seek Local 318's support Union Representative James O'Neil did what he could Even though the contract between the parties did not create any rights in the union spokesman to grieve about transfers, the record shows that the Union did in fact take up this matter and requested that Bond transfer him to the day shift This request was made on the basis of asking the Company as a favor to grant the request of Todres for a transfer Bond refused the request explaining that if he made such an exception to an employee who had never had any previous experience in the day grocery department he (Bond) would be flooded with similar requests from other employees similarly situated with Todres Warehouse Supervisor Erasmus Manza, who was called as a witness for the Respondent, testified on direct examination that he was present at separate meetings with Todres, Bond, and O'Neil Manza testified that he never heard Bond say he (Bond) would see to it that Todres never went on the day shift, or that the Company wanted 3 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec to get nd of him, or that. Todres ever, with the knowledge of the Company, gave advice to fellow employees, or that Todres was a rotten apple and would spoil the bunch or that he was a thorn in Bond's side In fact Manza credibly testified that he never attended any such meeting with O'Neil, Todres, Bond, and himself concerning Todres' efforts to be transferred I credit Manza's testimony and do not credit the version given by Todres The General Counsel argues that Todres should be credited because his story was studded with details which could not have been invented by Todres I am persuaded that Todres told an unconvincing story shot through with statements that not only were denied credibly by Respon- dent's witnesses but seemed to me to be a product of an overactive imagination Overall I am convinced that Todres dreamed up much of what he testified to and I do not credit his testimony III ANALYSIS AND CONCLUSIONS The record is utterly silent about any independent 8(a)(1) activity On the contrary it was not successfully argued by the General Counsel that the Company's refusal to transfer Todres was motivated by any antiumon considerations manifested by Respondent The record evidence supports my conclusion that Respondent enjoyed unusually good relations with Local 318 and all the other unions with which it had regular dealings The burden of proving the commission of any unfair labor practices rests on the General Counsel He presented no proof at all in support of his thesis that Respondent did in fact refuse to grant the request of Todres to be transferred because Todres was an activist union member It is to be noted that I reserved ruling on Respondent's offer of proof concerning the testimony that Union representative O'Neil could be expected to offer if he had been physically able to appear as a witness for Respon- dent The General Counsel objected to the receipt in evidence of this offer of proof My decision to dismiss the complaint on the merits would not be affected by a ruling on the said offer of proof and I therefore made no ruling on the point There is no merit to the General Counsel's case and I therefore recommend that it be dismissed in its entirety RECOMMENDED ORDERS IT IS HEREBY RECOMMENDED that the complaint herein be, and it hereby is, dismissed in its entirety 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions, and Order and all objections thereto shall be deemed waived for all purposes