Fry Foods, Inc.

FRY FOODS, INC. 137 Fry Foods, Inc. and United Steelworkers of Amer- ica, AFL-CIO. Cases 8-CA-12164, 8-CA- 12532, and 8-CA-12823 May 22, 1981 DECISION AND ORDER On September 22, 1980, Administrative Law Judge John C. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief.' The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Fry Foods, Inc., Tiffin, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The General Counsel also filed a motion to strike Respondent's ex- ceptions on the ground that the exceptions failed to meet the require- ments of Sec. 102.46(b) of the Board's Rules and Regulations, as amend- ed. The Board has reviewed the exceptions in light of the motion, and denies the motion for lack of merit. Respondent in its brief requests the Board to remand this proceeding to another administrative law judge because "the record was not complete when judgment was made." Respondent apparently asserts that the record is incomplete because the United States District Court for the Northern District of Ohio issued its decision on criminal contempt charges against Respondent on October 8, 1980, after the Administrative Law Judge had issued his Decision herein. Respondent's request is denied. The decision of the district court is a matter of which the Board takes judicial notice, and therefore we find it unnecessary to reopen the record or to remand for any purpose. Furthermore, we find nothing in the October 8 opinion of the district court to warrant reversal of the findings of the Administrative Law Judge herein. In that opinion, the district court concluded that it had not been proven beyond a reasonable doubt that Respondent had contuma- ciously intended to violate the earlier order of the district court In the instant case, however, the standard of proof is quite different, namely, that the General Counsel must prove by a preponderance of the evidence that Respondent has violated the Act. We agree with the Administrative Law Judge's finding that this standard has not been met by the General Counsel. 2 Respondent 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 256 NLRB No. 31 DECISION STATEMENT OF THE CASE JOHN C. MILLER, Administrative Law Judge: This case was heard before me in Tiffin, Ohio, on February 28, 1980. The complaint' alleges, inter alia, that Re- spondent discriminatorily withheld pay raises from Rowena Gannon and Mattie Taylor on July 21, 1978, and further denied pay raises or granted lesser pay raises to Rowena Gannon in September 1978 and April 1979, and thereby violated Section 8(a)(3) and (I) of the Act. Counsel for the General Counsel (hereafter called the General Counsel) and Respondent filed briefs which have been duly considered. On the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, an Ohio corporation with its principal office and place of business located in Tiffin, Ohio, is en- gaged in the processing and nonretail sale of frozen foods. Annually, Respondent ships goods valued in excess of $50,000 to points located outside the State of Ohio. The complaint alleges, Respondent admits, and I find that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, Respondent admits, and I find that the Union, United Steelworkers of America, AFL- CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Union began an organizational campaign at Re- spondent's Tiffin, Ohio, plant in December 1976. Subse- quently charges were filed against Respondent, a com- plaint issued and ultimately a Board decision2 issued (G.C. Exh. 2), followed by the Sixth Circuit Court of Appeals decision (G.C. Exh. 7). There were also 10(j) proceedings against Respondent and the findings therein of Federal District Court Judge Don J. Young are incor- porated here as General Counsel's Exhibits 5(A) and (B). There is also a contempt finding by Judge Young intro- duced as General Counsel's Exhibit 6. In essence Re- spondent was found to have engaged in violations of Section 8(a)(1), (2), (3), (4), and (5) of the Act. In each of these forums Respondent was found to have engaged in serious unfair labor practices. The circuit court of ap- peals stated that the "record shows one of the most obvi- ous examples of an employer's complete defiance of the National Labor Relations Act which has come before this court in recent years .. " In the 10(j) proceed- ings, Federal District Judge Young found that the record i Pursuant to an order consolidating and severing cases and amending the complaint dated August 29, 1979, Cases 8-CA-12212, 8-CA-12291, and 8 CA 12410 were severed and only the above-captioned cases were the subject of this hearing. 2 Fry Foods Inc., 241 NLRB 76 (1979). FRY FOODS, INC. '37 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "clearly shows the viciously unfair labor practices of the Respondent, which continue unabated .... In con- tempt proceedings, Judge Young found the evidence "not only shows contempt on the respondent's part by clear and convincing evidence, it shows contempt beyond a reasonable doubt." There is little doubt, therefore, that Respondent has demonstrated extensive union animus. Since we are concerned here with employees Mattie Taylor and Rowena Gannon, it is appropriate to consid- er what specific evidence of animus exists as to Taylor and Gannon. I. Prior findings The Board adopted Administrative Law Judge Walter Maloney's findings that Mattie Taylor was reduced to a rank-and-file employee and suffered a reduction in wages because of Taylor's union activity and because she gave testimony in a Board hearing and found such actions vio- lated Section 8(a)(l), (3), (4), and (5) of the Act. In the 10(j) proceedings, Judge Young found that Respondent demoted Mattie Taylor, failed to reinstate her, and, in April 1977, lowered her wages. Taylor also credibly tes- tified that she discussed the failure to get her July 1978 raise with Fry and he stated, in part, that "due to our names, meaning me and Gannon, came up in the court procedures, he couldn't give us a raise at that time." As to evidence of specific animus toward Gannon, the following should be noted. In his Decision, the Adminis- trative Law Judge found that Rowena Gannon was one of the Union's principal in-house proponents and that Respondent knew it, and further concluded that Re- spondent discharged Rowena Gannon on April 5, 1977, because of her union activities and because she gave tes- timony under the Act, in violation of Section 8(a)(l), (3), and (4) of the Act. In the 10(j) proceedings, Judge Young ordered Gannon reinstated, finding that she was discharged by Respondent as part of its union-destroying tactics, and because of her union activities and testimony. The Board subsequently found that, after Gannon was reinstated, she was subjected to unlawful harassment and unlawfully given warning slips and received a discrimi- natory suspension for 3 days. 2. Respondent's wage policies Fry's testimony as to Respondent's wage policies is un- disputed and credited that, as a general rule, production employees received wages approximately 10 cents above the minimum wage; that group leaders received wages 25 to 35 cents higher than production workers; and that production employees received longevity raises of 5 cents at the end of 30 days, 5 cents more at the end of 90 days, 5 cents at the end of 6 months, 5 cents at the end of I year, and 5 cents at the end of 2 years. Thus the maximum longevity raise was 25 cents an hour. Thus, for illustration, if the minimum wage was $3 an hour, a pro- duction employee with 2 full years' longevity would be making approximately $3.35 an hour-$3.10 (10 cents above the minimum) plus a longevity raise of 25 cents. If the minimum wage went up (as it did in 1978 and 1979), those employees making less than the minimum were granted raises up to that minimum. Thereafter, some months later, usually April or May, selective raises were granted to employees to restore their longevity dif- ferential. In the interim periods, employees with less than 2 years' service were automatically granted their longev- ity raises as they achieved the requisite time as an em- ployee. 3. Employment history of Mattie Taylor and Rowena Gannon Mattie Taylor: She was hired by the Company on Sep- tember 28, 1970, and in 1975 worked for a few months as a group leader on the so-called mushroom line. As a group leader her wage was raised from $2.55 an hour to $2.90 an hour. After being reduced from a group leader to a production employee in 1975, for health reasons, her wages were not reduced to that of a production employ- ee even though she never worked again as a group leader. She served as an election observer for the Union in the representation election. Rowena Gannon: Gannon was hired as a production worker on April 25, 1968. She became a group leader over the onion line in 1973 and held that position until her discriminatory termination on April 5, 1977. She re- turned to work on July 18, 1977, and refused a supervi- sor's position which was offered to her by Mr. Fry, Re- spondent's president, advising him she preferred to be a production worker and in the bargaining unit. She was not reduced in pay at that time and she was subsequently not given a raise later in July 1978, or September 25, 1978, allegedly because she was making more than the rest of the production workers. On May 4, 1979, she re- ceived a 15-cent-an-hour wage increase while other pro- duction employees received raises of at least 25 cents an hour. B. Issues 1, Whether Respondent's failure to grant wage raises to Mattie Taylor and Rowena Gannon on or about July 21, 1978, when other employees received raises, was dis- criminatory and a violation of Section 8(a)(l) and (3) of the Act. 2. Whether Respondent's failure to grant a wage in- crease to Rowena Gannon on or about September 25, 1978, and its granting of a smaller increase to Gannon in April 1979, than to other employees, were discriminatori- ly motivated and violative of Section 8(a)(1) and (3) of the Act. C. Contentions of the Parties The General Counsel contends that this case must be viewed in light of Respondent's actions beginning in De- cember 1976 when the Union commenced its organiza- tional campaign and continuing through the events of this case. Claiming that motivation is the key element to be proven in this case, the General Counsel points to the Board's Decision and Order (G.C. Exh. 2), the court of appeals decision enforcing that decision (G.C. Exh. 7) and orders by Judge Young in 10(j) proceedings (G.C. Exhs. 5(A) and (B)), and a contempt finding (G.C. Exh. 6) as matters to be considered in determining Respond- FRY FOODS, INC. 139 ent's motivation in denying raises to these two employ- ees. Respondent contends that Mattie Taylor and Rowena Gannon had worked as group leaders and received higher pay than regular production workers. Thereafter both became production workers again and, when raises were granted to other production workers in July 1978, Taylor and Gannon received no raise because their wage rates had not been reduced from their group leader rate. In effect, Respondent claims they were granted no raises to bring their wage level to that of all other production workers. It makes a similar contention with respect to raises later denied or lesser raises granted to Gannon. D. Discussion and Disposition of Allegations 1. Were Taylor and Gannon discriminatorily denied a raise given other employees on or about July 21, 1978? I have credited the undisputed testimony of Taylor that she met with Fry after she discovered sometime in July 1978 that other employees had received a raise and she had not, and at that time Fry told her that since their names (Taylor and Gannon) "came up in the court pro- cedures, he couldn't give us a raise at that time." In this proceeding Fry testified that, when Gannon and Taylor returned to work, they continued to receive the pay rate of a group leader, about 25 to 35 cents higher than pro- duction workers, through an oversight and that, when the raise of July 1978 was put into effect, they did not receive it because as production workers they both were making more than other production employees, and it was a way of equalizing their pay. Fry did not, however, contradict or deny Taylor's testimony about her conver- sation with him shortly after the July raises were grant- ed. The record also establishes that, when Taylor left the job of group leader sometime in 1975, she did not re- ceive a reduction in pay but continued to receive higher pay than other production workers even prior to the advent of the Union. Taylor admitted that she was making more money than other production workers and, when she did not receive the July 1978 raise, her pay scale was identical to that of other production workers. There are a number of factors that persuade me that the denial of raises in July 1978 was discriminatorily mo- tivated. They include: (a) The established union animus of Respondent (the prior proceedings and findings in three different forums) which was not only general in nature but specifically di- rected towards Taylor and Gannon. (b) The undisputed fact that, from 1975 to 1977, Taylor continued to get a group leader wage scale al- though doing work as a production employee. (c) The credited and undisputed testimony of Taylor that Fry told her the denial of the July 1978 raises was because of the court "procedures" involving her and Gannon. (d) I cannot credit Fry's testimony that the failure to reduce the wage rates of Taylor and Gannon was an oversight or that later the reasons the raises were not granted was to bring their wage scale in line with that of other production workers. Fry testified that he talked personally with Gannon when she refused an offer to be a supervisor, yet, despite the personal contact, her wage rate was not reduced at that time. Fry's testimony at this hearing was that the court order had nothing to do with the failure to grant raises to Taylor and Gannon. How- ever, his affidavit (G.C. Exh. 8) states in part that the failure to give Gannon a raise in September 1978 was be- cause it would have gone against the court order to maintain the status quo. (e) While Respondent's animus was noted previously, I further note the character of the violations found in the prior Board decision in this case that, after Gannon was reinstated, she was subjected to further harassment, un- lawfully given warning slips, and received a discrimina- tory suspension for 3 days. Thus Respondent had an es- tablished proclivity to retialiate vindictively towards known union adherents. I conclude the failure to grant the July 1978 raises was yet another example of the pat- tern Respondent followed in retaliating against known union adherents. Lastly, the General Counsel points out that Respond- ent cannot justify denying raises to Taylor and Gannon on the ground they no longer occupy positions as group leaders since Respondent did away with such classifica- tion by upgrading group leaders to supervisors without bargaining with the Union, in violation of the Act. Fur- ther, the court order in the 10(j) proceedings issued on or about July 13, 1977, ordered Respondent to reinstate employees and restore the status quo that existed prior to the April 1977 changes doing away with group leaders. In effect, as to Gannon, she should have been restored to her job as group leader and was not because Respondent did away with that job category and now seeks to justify the failure to grant such raises by its own unlawful action. For all of the reasons previously discussed, including Respondent's action in doing away with the job category of group leaders in apparent violation of the court's order, I conclude that Respondent's failure to grant the July 1978 raises to Taylor and Gannon was discrimina- torily motivated and violative of Section 8(a)(3) and (1) of the Act. 2. Was Respondent's actions in denying a raise to Rowena Gannon in September 1978 and her being given a smaller increase than other employees in April 1979 discriminatorily motivated? Gannon returned to work on July 18, 1977, and re- fused a supervisor's position that was offered to her by Fry, Respondent's president, advising him that she pre- ferred to be a production worker and in the bargaining unit. She was not reduced in pay at that time. On Sep- tember 25, 1978, all employees except Gannon were given a 5-cent-an-hour raise best described as an across- the-board increase. However, this raise was rescinded a week later and Respondent advised employees that some would get a 15-cent raise in January 1979. The record is not totally clear about whether the employees actually received the September 1978 raise for I week or whether it was rescinded in its entirety retroactively with no raise being paid. This can be determined in compliance pro- ceedings if it is concluded that the failure to give the raise to Gannon was discriminatory and violative of the Act. FRY FOODS, INC. 139 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In January 1979 the minimum wage went up by law, and those employees not receiving the new minimum were given a raise to bring them up to that minimum. In April 1979 raises were then granted to certain employees to restore the relative wage scale that existed prior to the minimum being raised on the basis of an employee's lon- gevity. The maximum longevity rate was an additional 25 cents after 2 years' service. At that time Gannon re- ceived a 15-cent raise while other employees received at least a 25-cent-an-hour raise. After the raises were grant- ed, Gannon was receiving the same wage rate as other production employees. Again, only Gannon was singled out and the issue re- mains whether the failure to grant raises to Gannon was discriminatorily motivated or was motivated solely by Respondent's purpose of equalizing the pay of all pro- duction workers. I previously rejected the contention that Respondent merely intended to get Gannon's pay down to that of other production workers for reasons previously articulated or that such reason was proper in this context, and conclude that Respondent was merely implementing a new method of retaliating against em- ployees who were active union adherents. I find that Re- spondent's failure to grant Gannon raises granted other employees in September 1978 and on or about April or May 1979 was discriminatorily motivated and violative of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 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 mean- ing of Section 2(5) of the Act. 3. Respondent, by failing to grant raises to Mattie Taylor and Rowena Gannon on or about July 25, 1978, and by failing to grant a raise to Gannon on or about September 25, 1978, and by granting Gannon a lesser raise than that awarded to other employees in April 1979, was discriminatorily motivated and thereby en- gaged in conduct violative of Section 8(a)(3) and (1) of the Act. 4. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to remedy the unfair labor practices found, and to effectuate the purposes of the Act, Respondent will be ordered to make Mattie Taylor and Rowena Gannon whole for the losses incurred by them in not being given the raises granted other employees, with in- terest as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).3 In view of the prior serious violations of the Act, a broad remedial order is warranted. 4 Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 3 See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). 4 Hickmott Foods, Inc., 242 NLRB 1357 (1979) ORDER 5 The Respondent, Fry Foods, Inc., Tiffin, Ohio, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily denying raises to employees be- cause of their union activities or support for the Union. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Make whole Mattie Taylor and Rowena Gannon for any loss of money incurred by being denied raises and make them whole with interest in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at the plant premises in Tiffin, Ohio, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I 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 find- ings, 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 wsaived for all purposes. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the ords in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT deny raises to Mattie Taylor, Rowena Gannon, or any other employees because of their union activities or support for the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. FRY FOODS, INC. 141 WE WILL make Mattie Taylor and Rowena Gannon whole for any loss of wages incurred as the result of their being denied raises by payment of the appropriate sums of money involved, with interest. FRY FOODS, INC. result of their being denied raises by payment of the