Illinois Fruit & Produce Corp.

ILLINOIS FRUIT & PRODUCE CORP. Illinois Fruit & Produce Corp. and Al Kollar, Jr. Case 38-CA-2500 September 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 10, 1976, Administrative Law Judge Sid- ney J. Barban issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party filed an answering brief, and the General Counsel filed a brief in support of the Administrative Law Judge's decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions 1 and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified below 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Illi- nois Fruit & Produce Corp., Streator, Illinois, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as modified: 1. Substitute the following for paragraph 1(b): "(b) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule 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 are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. X188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In par. 1(b) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "like or related," rather than the broad injunctive language, "in any other manner." We shall modify the order to require, Respondent to cease and desist from in any manner infring- ing upon the rights guaranteed to employees by Sec. 7 of the Act. APPENDIX 137 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, discipline, or other- wise retaliate against a supervisor because he gives testimony, or offers or agrees to give testi- mony, which may be favorable to employees in- volved in an arbitration proceeding under our bargaining contract with a labor union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by the National Labor Relations Act, as amended. WE WILL offer Al Kollar, Jr., reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make Al Kollar, Jr., whole for any loss of pay or benefits which he may have suf- fered as a result of his discharge, with interest at 6 percent per year. ILLINOIS FRUIT & PRODUCE CORP. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This mat- ter was heard at Ottaway, Illinois, on March 18, 1976, upon a complaint issued on February 10, 1976, based on a charge filed by the above-named Charging Party on Sep- tember 17, 1975. (All dates herein are in 1975, unless other- wise noted.) The complaint alleges that the Respondent named above violated Section 8(a)(1) of the Act by the discharge of the Charging Party, Al Kollar, Jr. (herein Kol- lar). Respondent's answer denies the commission of the alleged unfair labor practices, but admits allegations of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board (Respondent en- gaged in the wholesale distribution of foods and beverages, in a recent annual period received goods at its Streator, Illinois, facility of a value in excess of $50,000 which had been shipped in interstate commerce), and to support a finding that Teamsters Union Local #722, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein the Union) is a labor organization within the meaning of the Act. Upon the entire record in this case, from my observation of the witnesses and their demeanor, and after due consid- eration of the briefs filed by the General Counsel, Respon- dent, and the Charging Party, I make the following: 226 NLRB No. 27 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS 1. THE ISSUE General Counsel contends that Respondent discharged Kollar, a supervisor within the meaning of the Act, because of Kollar's testimony at an arbitration hearing on the dis- charge of two warehouse employees, which was favorable to the employees and assertedly contrary to the instruc- tions of management. General Counsel contends that this violated the Act. Respondent contends that Kollar was not discharged for his testimony at the arbitration, but because he was a poor supervisor who did not perform as instruct- ed by management. 11. THE FACTS A. Respondent's Operations This case involves Respondent's warehouse operations. Products are received and stored by warehouse employees engaged on the first shift, which normally begins at 7 a.m. Products shipped from the warehouse are taken from stor- age, assembled and loaded on trucks by employees on the night shift, which starts at 9 or 10 p.m., as scheduled, and continues until the work is completed. Shift end time for the night shift nominally seems to be 7 a.m., when the day shift arrives, but it appears that the night shift rather regu- larly works past that time. During the time material to this proceeding, the night shift supervisor was Kollar, who was assisted by two assis- tant foremen, John Waylin and Bill Woodling. Kollar, who normally had 14 employees working under him on the night shift, was responsible to the day shift foreman, Ray- mond Lucas, and to Donald Donaldson, Respondent's general manager . Normally neither Donaldson nor Lucas was present during the night shift, although Lucas' shift frequently overlapped the night shift. Donaldson visited the night shift from time to time. B. Discharge of the Warehousemen Respondent has a bargaining agreement with the Union covering the operation of its warehouse . There was appar- ently some dissatisfaction with the long hours worked by the warehousemen . During the morning of March 25, one of the warehousemen on the night shift, Lou Oliver, told Kollar that there had been a discussion at a union meeting of the hours, and that he intended to leave at 7 a.m. In fact, both Oliver and another employee , Mike Roach , left at 7 that morning without securing permission to leave . The re- mainder of the crew finished the work of the night shift not long thereafter. As Oliver and Roach were leaving, they were accosted by Lucas, and they told him that they were leaving. This action came to the attention of Donaldson. Without consulting with Kollar , Donaldson directed that the two men be discharged . Kollar, after advising Don- aldson that he considered the two men to be good workers, carried out these instructions on the evening of March 25. C. The Arbitration Oliver and Roach filed grievances over their discharges, apparently in part because they were not given warnings required by the union contract.' The grievances were not resolved and were noted for arbitration. Kollar was in- formed of the arbitration by Donaldson, who told Kollar that he was to go to the hearing with Lucas. Donaldson also told Kollar to elaborate at the hearing on the fact that the two employees were not good workers. In support of this, Donaldson showed Kollar some papers which indi- cated that the two had frequently been absent or late at work. Kollar noted that the dates shown preceded his em- ployment with Respondent. Donaldson's testimony as to this conference with Kollar was similar to the account given by Kollar, except that he denies that he told Kollar to testify that the men were bad workers and he states that Kollar knew of their bad absen- tee records. However, Donaldson's testimony confirms his conflict with Kollar as to whether the two were good em- ployees. A summary of the absentee records of the two warehousemen shows that almost all the dates precede Kollar's employment Where Donaldson's testimony con- flicts with that of Kollar, I credit the latter. At the arbitration hearing, Kollar was asked if the two employees, Oliver and Roach, were good employees, and he testified that they were good workers. The arbitration award directed that Roach be reinstated. When Kollar heard rumors that one of the men was com- ing back, he went to see Donaldson, about June 12, to ask about the outcome of the hearing. Kollar testified that Donaldson "told me that one of my so-called good workers was going to come back and the other one wasn't, and I told him, I says, 'Well, what do you mean?' I said, 'I had stated to you that they were good workers.' And that I had answered the questions as brief as possible in the manner that he had told me to answer them. And he said, `God damn it, you did not.' He said, `I told you that they weren't good workers."' Donaldson's testimony concerning this meeting states only that there was a discussion concerning whether the two men were good workers, and that Donaldson asserted that he couldn't understand why Kollar considered em- ployees "who don't show up for work can be good work- ers." I credit Kollar's testimony concerning this meeting. Two day later, Kollar was discharged. D. The Discharge of Kollar Kollar was employed by Respondent in November 1974. He was trained by the then foreman on the night shift from that time until the early part of February 1975 to become night shift foreman, and became foreman of that shift at that time. According to Kollar, he was not reprimanded or criticized for the performance of his duties prior to the day of his discharge, on June 14. On that day, Lucas told Kol- ' Donaldson, having previously testified that the two men had been fired, when questioned as to why the men weren't given the warnings required by the contract, shifted to an assertion that they had quit In this and other matters I find Donaldson an unreliable witness -ILLINOIS FRUIT & PRODUCE CORP. 139 lar to report to Donaldson's office. Donaldson told Kollar that he was letting Kollar go. Kollar protested that this was "sudden," that he had been given no warning, and request- ed that he be retained until he could find another-job, as he had a wife and children to support. According to Kollar, Donaldson refused, making a crude and caustic comment to_ the effect that he didn't carelabout Kollar's personal problems. Donaldson told Kollar,that he was being let go because he wasn't handling the men in the way that Don- aldson wanted them handled. Donaldson, who stated.that he could not recall the date of Kollar's discharge, testified that he also couldn't remem- ber exactly what happened at this meeting, though he re- called that he told Kollar that he was being let go because Donaldson was not satisfied with the way Kollar was run- ning the night crew, that he could not supervise the men. To the extent that the two versions as to this incident con- flict, I credit Kollar. 1. Respondent's asserted basis for Kollar's discharge Donaldson testified that he was "dissatisfied with the way that the night shift was being run, the lack of order, the breakage of merchandise, just the plain lack of direc- tion." 2 When asked when these incidents occurred, Don- aldson replied,"[I]t- occurred initially when he was hired and at times of, my visits _ . . I told him what I wanted, but never got through to him." I In-response to certain specific leading questions, Donaldson asserted that specific inci- dents were pointed out to Kollar orally, and that, in addi- tion, Respondent's records and other supervisory employ- ees supported his evaluation - of Kollar. Donaldson's testimony concerning Kollar's asserted deficiences and in- stances of criticism of Kollar were notably vague and un- specific.4 In one instance,- however, Donaldson did assert that- Kollar engaged in "bill calling," a work task which should have been left to others, but even as to this, Don- aldson said this occurred "maybe once each month, some- thing like that, it wasn't a great,deal." On consideration of the testimony of the witnesses„ I credit Kollar that he was not criticized or reprimanded for the performance of his duties prior to his discharge. Finally, Donaldson testified, "I could see I wasn't going to get done what I wanted done, and I had made a commit- ment to myself better than 2 months previous to that to find a replacement, and I was looking for a man 2 or 3 months prior to his being discharged." However, Donaldson's explanation, on cross-examination, of the 2 At different times, Donaldson stated that he "occasionally" visited the night shift ; that these were "not numerous"; but he had informally evaluat- ed Kollar, on dates he could not recall , "[b]ut I know that I was in the warehouse on numerous occasions, and called this to [his] attention .11 At another point, he indicated that some of these observations were made in the daytime, after the night shift. 3 At another point, Donaldson asserted, "I criticized his work briefly on a few occasions." ' Lucas was similarly vague as to any specific incidents in which Kollar did not perform properly, referring to only one instance, apparently in Feb- ruary, when he asseriedly noted in the morning that certain night shift employees were not where they should be Lucas was also unable to recite any specifics as to any conversations with Kollar about his work with the possible exception of one asserted instance in February. steps he took to find such a replacement was quite vague, and he finally replaced Kollar with Woodling, who had been an assistant foreman on the night shift from the time Kollar became night shift foreman. - Donaldson denied that Koller was discharged because of his testimony at the arbitration hearing. Woodling, who replaced Koller as night foreman, testi- fied as to one shift in June, otherwise unspecified, in which Woodling states that Kollar made erroneous assignments of employees, which Woodlmg states he corrected on his own, so that the work was properly done on that shift. Though Woodling asserted that he reported this to Lucas, neither Lucas nor Donaldson referred to this asserted dere- liction on the part of Kollar. Lucas, as has been noted, stated that he could not recall such a specific instance since February. 2. Subsequent events A week after his discharge, Kollar returned to Respondent's operations. According to his testimony, which I credit, Kollar saw Harold Donaldson, Respondent's president, and discussed with him the dis- charge of Oliver and Roach and his own discharge. Kollar asked if there was anything Harold Donaldson could do for him. Harold Donaldson said that "he would see, that maybe there was. But then he asked me if I would go back to the Union representatives and retract my statement that I made at the arbitration. . . . That . . . Lou'Oliver'and Mike Roach were good workers." Harold Donaldson said, "Let's start from there and see what happens. -Later Kollar called Harold Donaldson at the Respondent's offices, and asked if he had considered their earlier conversation. Harold Donaldson asked Kollar if he had done what Donaldson had told him to do-go to the Union and retract his statement. Kollar said he had not, to which H. Donaldson replied, "at the present time that his hands were tied right then." Although this testimony of Kollar was not denied, I have noted and considered D. Donaldson's testimony to the ef- fect that the man Kollar talked to was not the president of Respondent. The testimony is rather confusing and the critical point-whether the Harold Donaldson with whom Kollar talked was a different man from the Harold Don- aldson who is president of Respondent-was suggested to D. Donaldson by a leading question. No explanation for this conclusion was given, other than D. Donaldson's 'state- ment that the president of Respondent had talked with him about Kollar's discharge, but that the Harold Donaldson whom Kollar had talked with had not'. D. Donaldson testi- fied that both Harold Donaldsons were not, present at Respondent's operations on a "day to day" basis. As above noted, I credit Kollar that he talked with the president of Respondent. I do not credit D. Donaldson's hearsay asser- tion that he did not., On his part, D. Donaldson testified that after his dis- charge, Kollar visited him at Respondent's operations and, in effect, admitted that he had not performed as D. Don- aldson expected, and that if he were given his job back, he would perform as D. Donaldson desired. This was not de- nied by Kollar. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. ANALYSIS AND CONCLUSIONS CONCLUSIONS OF LAW There seems to be no dispute among the parties to this proceeding that the discharge of a supervisor for giving honest testimony at an arbitration which does not favor his employer frustrates the purpose of the Act, and violates Section 8(a)(1) of the Act. See, e.g., Rohr Industries, Inc, 220 NLRB 1029 (1975), and cases cited therein. There is no claim that Kollar's testimony at the arbitration hearing was other than honest, although Respondent seems to claim that it is evidence of his bad judgment. Respondent, in any event, contends that Kollar was not discharged because his testimony at the arbitration was adverse to Respondent, but because his performance as a supervisor was poor. A critical point in the resolution of the issues in this matter is the timing of Respondent's action. Kollar was discharged right after D. Donaldson had bitterly upbraided Kollar for giving testimony adverse to Respondent at the arbitration hearing which resulted in Respondent having to reinstate one employee whom it had discharged. The depth of this feeling was further revealed by D. Donaldson's harsh statements at the time Kollar was discharged. The inference is that the discharge was caused by D. Donaldson's resentment over the adverse effect of Kollar's testimony. This inference is reinforced by H. Donaldson's comments, when Kollar sought his aid in Kollar's attempt to get his job back, that this attempt would be assisted if Kollar would go to the Union and retract his testimony given at the hearing. On the other hand, Respondent's position that Kollar was discharged because of his poor performance is much weakened upon consideration of the timing of the event. Thus both D. Donaldson and Lucas, Kollar's superiors, assert that he was unsatisfactory from the beginning of his tenure, some 6 or 7 months previously, but he received no reprimand or criticism of his performance, or warning of his impending dismissal. D. Donaldson's assertion that he was looking for a replacement for Kollar for several months appears particularly transparent. At the end, Re- spondent replaced Kollar with an assistant who had been employed as long as Kollar. Finally, it is difficult to per- ceive why Respondent picked this particular time to let Kollar go for his asserted poor performance, as against an earlier or later time. I have considered Woodling's rather vague testimony concerning an asserted error of assign- ment of men by Kollar sometime in June, but find it unper- suasive. In any event, if this had figured in the decision to discharge Kollar, I would have expected D. Donaldson or Lucas to have remembered it, but neither seemed to recall the incident. On the record as a whole, and from my obser- vation of him as a witness, I do not credit D. Donaldson's testimony that Kollar was discharged because of his poor performance of duties as a supervisor, but find that this was advanced as a pretext to cover the real reason for his termination, which was Kollar's adverse testimony in the arbitration hearing. For these reasons, and upon the record as a whole, I find that Respondent violated Section 8(a)(1) of the Act by the discharge of Al Kollar, Jr., on June 14, 1975. 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Al Kollar, Jr., on June 14, 1975, be- cause Kollar gave testimony at an arbitration hearing ad- verse to Respondent's position, Respondent violated Sec- tion 8(a)(1) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It hav- ing been found that Respondent unlawfully discharged A] Kollar, Jr., it will be recommended that Respondent be ordered to offer Koller immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority, and other rights, privileges, or benefits or other working conditions, and make him whole for any loss of earnings or benefits suffered by reason of such discrimina- tion, by paying to Kollar a sum of money equivalent to the amount he would have earned from the date of the dis- crimination against him, as found herein, to the date of Respondent's offer to reinstate him as aforesaid, less his net earnings during that period, in accordance with the Board's formula as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDERS The Respondent, Illinois Fruit & Produce Corp., Strea- tor, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, disciplining, or otherwise discriminat- ing against any supervisor because the supervisor has giv- en, or offered or agreed to give, testimony in an arbitration proceeding held pursuant to a collective-bargaining agree- ment. 5In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 ILLINOIS FRUIT & PRODUCE CORP. 141 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Al Kollar, Jr., immediate and full reinstate- ment to his former position or, if that position no longer exists, a substantially equivalent position , without preju- dice to his seniority or other rights and privileges. (b) Make whole Al Kollar, Jr. for any loss of pay or benefits which he may have suffered as a result of his dis- charge ,in the manner set forth in the Remedy section of this Decision. (c) Preserve and, upon request, make available to the Board, or its agents, payroll and other records to facilitate the effectuation of the Order herein. (d) Post at its operations at Streator, Illinois, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 38, after being duly signed by an authorized rep- resentative of Respondent shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Officer-in-Charge of Subregion 38, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National 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."