Ludwig Fish & Produce, Inc.

LUDWIG FISH & PRODUCE, INC. Ludwig Fish & Produce, Inc. and Local 298, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 25- CA-6648 November 17, 1977 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 5, 1977, Administrative Law Judge Ivar H. Peterson issued the attached Supplemental Deci- sion.' By its order dated July 6, 1977, the Board reopened the record and remanded the proceeding to the Administrative Law Judge for further findings. On July 19, 1977, the Administrative Law Judge issued the attached Second Supplemental Decision. Respondent and counsel for the General Counsel filed exceptions to the Supplemental and Second Supplemental Decisions and briefs in support of their respective exceptions. Respondent also filed a mo- tion for leave to adduce additional evidence. Counsel for the General Counsel filed an opposition to the motion. 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 in light of the attached Supplemental and Second Supplemental Decision and the exceptions and briefs2 and has decided to affirm the rulings, findings, and conclu- i The initial Decision and Order is reported at 220 NLRB 1086 (1975), and the Supplemental Decision and Order at 221 NLRB 1306 (1975). By order dated January 26. 1977. as amended on February 7, 1977. the Board, in conformity with an unpublished order of the Court of Appeals for the Seventh Circuit remanding the case to the Board, directed the Administra- tive Law Judge to prepare and serve on the parties a Supplemental Decision. In its initial Decision and Order, the Board found that Respondent violated Sec. 8(aX3) of the Act by discharging Jerry Girardot and Gene Pennington for their union activity, and Sec. 8(aXI) by threatening to close down the facility if the Union came in. In its Supplemental Decision and Order, the Board adopted the Administrative Law Judge's conclusion that Girardot had forfeited his nght to reinstatement and backpay by reason of his conviction for theft from the Company. The Board also dismissed the complaint insofar as it alleged a violation of the Act predicated on Girardot's testimony that Respondent had threatened to close down if the Union came in. 2 Respondent's motion for leave to adduce additional evidence is hereby denied. The Board has indicated that to the extent practicable its proceedings will be controlled by the Federal Rules of Evidence. See Sec. 101.10, National Labor Relations Board Rules and Regulations, Series 8, as amended. Rule 609(a) of the Federal Rules of Evidence provides, in relevant part, that evidence of conviction of a crime shall be admitted to attack the credibility of a witness only if the crime was punishable by death or imprisonment in excess of I year under the law under which he was convicted, or involved dishonesty or false statement. In its motion, Respondent avers that on July 30, 1977, it learned that alleged discnminatee Gene Pennington had been charged with contempt of court in the LaPorte City Court, and convicted in that court on various dates in April, June, and July 1977, of public intoxication, trespass. and "no 233 NLRB No. 80 sions of the Administrative Law Judge only to the extent consistent herewith. Based on the entire record in the case and on the evidence of alleged discriminatee Jerry L. Girardot's subsequent conviction for theft from the Respondent Company, the Administrative Law Judge concluded in his Supplemental Decision that Girardot was not a credible and reliable witness. In light of this conclusion, the Administrative Law Judge found that Girardot's discharge by Respondent was not viola- tive of Section 8(a)(3) of the Act and recommended that the allegations of the complaint in this regard be dismissed. We disagree. In his initial Decision in this matter, the Adminis- trative Law Judge found that the Company's decision to discharge Girardot and Girardot's broth- er-in-law, Gene Pennington, was unlawfully motiva- ted. In so finding, the Administrative Law Judge pointed out that the Company's asserted reasons for the discharges-in Girardot's case, customer com- plaints and Girardot's failure to report for Saturday work-had existed for a long period without unduly exciting the Respondent's concern or causing Re- spondent to take any steps to rectify the situation. Not until the advent of union activity in the plant, in which Girardot played the leading part, did Respon- dent take action based purportedly on Girardot's unsatisfactory performance. As for Respondent's claim that it was unaware of Girardot's union activity, the Administrative Law Judge observed that the Respondent's shop was small and there were numerous employee discussions in the plant about the Union in the weeks immediately preceding the discharges. In these circumstances, the Administra- operator's license" charges. Respondent asserts that the evidence which it seeks to adduce goes to the matter of Pennington's credibility and to the merits of the case because the Company's stated reason for discharging Pennington was his failure to have a driver's license and "it appears that . . Pennington has still not obtained an Indiana driver's license." The Board has carefully considered Respondent's motion and General Counsel's opposition and concludes that said motion should be denied because Respondent has failed to show that the alleged convictions would be admissible under Rule 609(a) as involving either crimes punishable by death or imprisonment in excess of I year, or dishonesty or false statement. Furthermore, inasmuch as the Board had previously concluded that Respondent's stated reasons for terminating Pennington are pretextual, evidence of Pennington's current failure to hold a driver's license would be immaterial to that issue, even assuming such fact to be the case. We note further that it is not clear from the documents submitted by Respondent whether Pennington was charged with not having an operator's license in his possession at the time of arrest, or whether he was charged with not having any valid operator's license at all, and Respondent has failed to produce any further evidence with regard to this matter. Respondent further argues that the Board should consider "what affect [sic 1, if any, the conviction will have upon Judge Peterson's findings" with respect to reinstatement and backpay as to Pennington. Unlike Girardot's conviction for theft from his employer, the evidence which Respondent now seeks to adduce as to Pennington does not purport to demonstrate theft or false statement, nor does it relate to Pennington's employment relationship with Respondent prior to his unlawful discharge. For these reasons. as well as those set forth above, we find no merit in Respondent's argument, and we shall affirm our pnor Order in this regard. 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive Law Judge found it fair to infer that Respondent was aware of Girardot's and Pennington's union advocacy prior to the discharges. On this issue, the Administrative Law Judge also noted the evasive response of Company Supervisor Tom Robinson, son of Company President Harold Robinson, that he could not recall any particular employee mentioning a union to him but that "they possibly could have." In adopting the finding that Girardot's discharge violated the Act, the Board went beyond the Administrative Law Judge's rationale to point out additional record evidence which supports the finding of a violation. Thus, the Board noted the credited testimony of employee Wood that Harold Robinson, in explaining his decision to terminate Girardot, characterized the latter as "a troublemaker and an instigator." In the Board's view, this state- ment constitutes strong evidence of Respondent's knowledge of, and distaste for, Girardot's union activity and of the pretextual nature of Respondent's stated reasons for the discharge. As additional evidence that Respondent's asserted reasons for the discharge were not the real reason, the Board also pointed out that employee Wood testified that he frequently took over Girardot's routes on Saturdays, that Harold Robinson admitted that employees were not required to work on Saturdays (and in fact employees other than Girardot failed to work Saturdays), and that Girardot was never reprimand- ed or warned that his failure to work on Saturdays might result in his terminations. We have exhaustively reviewed the record in this proceeding in its entirety and we are satisfied that the record as a whole, including our previous findings of fact and the inferences drawn therefrom as discussed above, fully warrants the conclusion that the Compa- ny's decision to terminate Girardot's employment was discriminatorily motivated and unlawful.4 Hence, we shall reaffirm our previous finding that Respondent's conduct in this regard violated Section 8(a)(3) and (I) of the Act. ORDER Accordingly, the Board reaffirms its prior Supple- mental Decision and Order set forth at 221 NLRB 1306, and orders that the Respondent, Ludwig Fish & Produce, Inc., LaPorte, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in said Order. 3 he record also establishes that customer complaints were lodged against employees other than Girardot, but these employees were not the targets of adverse action by the Company. The record further establishes that the Company permitted employees several minutes leeway in reporting for work without either discharging them or reprimanding them for tardiness. All this undermines the Company's potpourri of asserted reasons for the discharge. 4 We reach this conclusion in light of, and accepting, the Administrative Law Judge's finding, expressed in his Supplemental Decision, that Girardot was not a reliable and credible witness. As we noted in our Supplemental Decision and Order in this matter, and as our review of the record evidence confirms, "the only material finding predicated solely on Girardot's testimony" concerns an alleged threat to close down the plant if the Union came in. (221 NLRB 1306, fn. 3.) SUPPLEMENTAL DECISION IVAR H. PETERSON, Administrative Law Judge: On March 31, 1975, 1 issued my Decision in this proceeding. Thereafter, exceptions and supporting briefs were filed by Respondent and the General Counsel. In that Decision, I found that Respondent had violated Section 8(a)(1) and (3) of the Act by discharging Jerry Girardot and Gene Pennington and, accordingly, I recommended that they be reinstated with backpay. On October 6, 1975, the Board sustained my findings. Thereafter, Respondent filed with the United States Court of Appeals for the Seventh Circuit a motion for leave to adduce additional evidence. The court granted this motion on November 14, and remanded the case to the Board "for the limited purpose of taking additional evidence which is material to the Board's Decision and Order." Upon the remand, the second hearing was conducted by my colleague, Administrative Law Judge Ralph Winkler. Respondent objected to the substitution of a new Administrative Law Judge, but this objection was overruled. During the course of that hearing, evidence of Girardot's conviction for theft from Respon- dent during the course of his employment was admitted. Administrative Law Judge Winkler came to the conclusion that Girardot had forfeited entitlement to reinstatement and backpay and, in addition, found that the remand required that all material issues affected by Girardot's credibility be reconsidered in the light of his conviction. Administrative Law Judge Winkler made no finding respecting Pennington and advised that only I could make such a determination. On December 20, 1975, the Board issued a Supplemental Decision and Order, in which it affirmed Administrative Law Judge Winkler's decision as to Girardot and conclud- ed that there was insufficient evidence in the record based on Girardot's unreliability as a witness to support findings of a violation of Section 8(a)( 1) of the Act. Accordingly, the Board dismissed the complaint insofar as it alleged violation of Section 8(a)(1) and, moreover, refused to reopen the record and reassign the case to me for consideration of the violation of Section 8(a)(3) of the Act. The Board reaffirmed its order that Respondent reinstate Pennington to his former position with backpay. The court concluded that there was insufficient evidence in the record based on the unreliability of Girardot as a witness to support findings of a violation of Section 8(a)(1). The court stated that it "need not consider whether substantial evidence supports the Board's decision as, for the following reasons, we find that the assignment of Judge Winkler on remand as a substitute trial examiner for Judge Peterson was improper." The court stated that "when evaluation of the demeanor and credibility of witnesses is important in the determination of disputed issues of fact, fairness requires the consideration of the demeanor element and credibility be by a single hearing officer." It 572 LUDWIG FISH & PRODUCE, INC. further stated that "an examination of the testimony before" me "demonstrates that the demeanor and credibili- ty of Girardot in light of evidence of his conviction is central to a determination" of whether an 8(a)(3) violation occurred. The court further noted that I recognized that "the record contains conflicting evidence as to the motivation of the Company for discharging Girardot and Pennington and knowledge of the Company as to their union involvement"; additionally, it noted that, in arriving at my conclusion I "relied in part on Girardot's testimony concerning his conversation with Tom Robinson," an official of Respondent. The court went on to state that it agreed with Administrative Law Judge Winkler "that fairness requires that all material issues affected by Girardot's credibility should be reconsidered in the light of his conviction and that only Judge Peterson is in a position to make such an evaluation." Accordingly, the court denied the petition for enforcement and set aside the Board's Supplemental Decision and Amended Order and remanded the proceeding "with instructions to proceed in a manner not inconsistent with the opinions expressed herein." On January 26, 1977, the Board issued an order reopening the record and remanding the proceedings to the Regional Director for hearing. However, on February 7, the Board issued an order amending this order and ordered that the record in this proceeding be reopened and remanded to me in accordance with the court's order, and directed that I "prepare and serve upon the parties a Supplemental Decision containing findings of fact, conclu- sions of law, and recommendation, and that, following service of the Supplemental Decision upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable." Pursuant to the remand, I have again reviewed the evidence of record and reevaluated it in light of the proceedings that occurred following the original hearing and my Decision. In my Decision I stated that the determination of the motive of Respondent in terminating Girardot and Pen- nington presented some difficulty. I found that the record "plainly shows that Girardot had been in the habit of reporting late for work and missing a substantial number of Saturdays when he should have been working." Moreover, I found that the uncontradicted evidence was that Respondent "had received complaints concerning his conduct from a number of customers." Thus, Girardot testified that one concern "was mad, because I wouldn't rotate their stock for them in their cooler," for the reason that that was not part of his job. Following January 28, Girardot had a conversation with Robinson concerning some missing funds and, according to Girardot, Robinson "said I took that money and he says, well, he says "You cost me a bundle already," and that he (Robinson) was not "going to just sit around and let you get away with it." Girardot then stated, so he testified, that he said, "That sounds like you are going to set me up for something," to which Robinson replied that Girardot could believe anything he wished and that if he wanted anything else Girardot should get in touch with Robinson's attorney. Asked whether he told Robinson that Wood took the money, Girardot replied that he did not think he had said that. Asked whether in any of the conversations following October 28 he indicated that he would like to drop the matter, Girardot replied that in December he did, for the reason that he thought that it was getting to be a long drawn out matter. Girardot was asked whether he was "arrested and convicted this last month here in the City of LaPorte?" He replied that he had been convicted of driving while his license was suspended, and that this occurred "somewhere around the second week of January," and that he entered a plea of guilty to the charge. Girardot volunteered that in 1969 he was arrested in Fort Wayne "for driving under the influence and that's been dismissed." In addition, informa- tion was issued against Girardot in the LaPorte City Court on October 21, 1975, charging that on July 8 and September 11, 1974, he "exerted unauthorized control over property of Ludwig's Fish and Produce Company to wit: cash in the aggregate amount of $86.20, with intent to deprive said owner of the use and benefit thereof." Girardot pleaded guilty and was fined $25, under date of October 22, 1975. Having reconsidered the entire record in this case, and the proceedings which occurred following the original hearing before me and my decision of March 31, 1975, I come to the conclusion that Girardot is not a reliable and credible witness. Accordingly, I find that his termination by Respondent was not violative of the Act and that the allegation of violation of Section 8(a)(3) and (I) with respect to him should be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSION OF LAW The Respondent, Ludwig Fish & Produce, Inc., LaPorte, Indiana, by terminating Jerry L. Girardot on October 28, 1974, did not violate Section 8(a)(3) and (1) of the Act. Upon the foregoing supplemental findings of fact and conclusion of law, I hereby make the following recom- mended: ORDER The complaint herein alleging that Respondent violated Section 8(aX3) and (1) of the Act by terminating Jerry L. Girardot is dismissed. SECOND SUPPLEMENTAL DECISION IvAR H. PETERSON, Administrative Law Judge: On April 5, 1977, I issued a Supplemental Decision in this proceed- ing, wherein I found, pursuant to the remand, that one of the alleged discriminatees, Jerry Girardot, was not a reliable and credible witness and, accordingly, I found that his termination by Respondent was not violative of the Act. I therefore recommend that the complaint alleging that Respondent violated Section 8(a)(3) and (I) of the Act by terminating Girardot be dismissed. On July 6, 1977, the Board reopened the record and remanded the proceeding to me "for the purpose of determining whether the matter of Jerry Girardot's credibility affects the finding that Gene Pennington's discharge was unlawful." I have reconsidered 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record in this case, particularly as it relates to the termination of Pennington, and I conclude and find that the matter of Girardot's credibility does not affect my finding that Pennington's discharge was violative of Section 8(a)(3) and (I) of the Act. Accordingly, I hereby reaffirm the findings and conclusions of law previously made with respect to Pennington, and I recommend that the Board adhere to its finding that, by terminating Pennington, Respondent violated Section 8(a)(3) and (1) of the Act. 574