L.B Darling Division of Idle Wild Farm

L.B DARLING DIVISION OF IDLE WILD FARM L.B. Darling Division of Idle Wild Farm, Incorpo- rated and Local 2, United Food and Commer- cial Workers International Union, AFL-CIO. Case -CA-16802 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 19, 1980, Administrative Law Judge George F. McInerny issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the exceptions. 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 and briefs and has decided to affirm the rulings, find- ings,' and conclusions 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 complaint be, and it hereby is, dismissed in its entirety. I The General Counsel 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 re- spect 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. 1X8 F 2d 362 (3d Cir 1951). We have carefully examined thie record and find no basis for re- versing his findings DECISION STATEMENT OF THE CASE GEORGE F. MCINERNY, Administrative Law Judge: Based upon a charge filed on November 2, 1979, and amended on December 18, 1979, by Local 2, United Food and Commercial Workers International Union, AFL-CIO, herein referred to as the Union, the Regional Director for Region I of the National Labor Relations Board, herein referred to as the Board, issued a com- plaint on December 27, 1979, alleging that L.B. Darling Division of Idle Wild Farm, Incorporated, herein re- ferred to as Respondent, or the Company, had violated and was violating Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq., herein referred to as the Act. Respondent thereafter filed 254 NLRB No. 33 an answer denying the commission of any unfair labor practices. Pursuant to notice contained in said complaint a hear- ing was held before me in Boston, Massachusetts, on June 2, 1980, at which all parties had the opportunity to present testimony and documentary evidence, to examine and cross-examine witnesses, and to argue orally. After the close of the hearing Respondent and the General Counsel submitted briefs, which have been carefully con- sidered Upon the entire record in this case, including my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a division of Idle Wild Farm, Incorpo- rated, a Connecticut corporation. Respondent maintains its principal office and place of business in Southbor- ough, Massachusetts, where it is engaged in the manufac- ture, sale, and distribution of processed foods. In the course and conduct of its business operations Respondent annually purchases and receives at its Southborough lo- cation goods and materials valued in excess of $50,000 directly from points outside the Commonwealth of Mas- sachusetts, and ships from that facility processed foods valued in excess of $50,000 directly to points outside of said Commonwealth. The complaint alleges, the answer admits, and I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOI.VED The complaint alleges, the answer admits, and I find that Local 2, United Food and Commercial Workers In- ternational Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALI.EGED UNFAIR ABOR PRACTICES' A. The Germanotta Incidents The Company is engaged in the business of manufac- turing and processing foods which are primarily used in school lunch programs. There are between 100 and 110 employees at the Southborough plant under the overall supervision of Division President Kenny Jacobson. Ja- cobson apparently devotes most of his time to sales of the Company's products so that the day-to-day operation of the plant is handled by David White, who is both plant manager and production manager. Under White there are two supervisors on the day shift, Ernest Me- spelli and John Isenberger, and one night supervisor, Herbert Delvalli. There is no separate personnel office or function at the Company. but personnel records are maintained and personnel matters handled by Controller Joseph W. Sullivan and his assistant David Prentice. No e. idcncc was presetlled on pars 8(a), (h), (d) (h) ). . (k),. and (I) andl '(i Ihc (icicri Con,,isel ha, mn,ied that these paragraphs , he . ith- drawnl fromil tic complailt That motion is gra;ted 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since 1973 the function of hiring and firing has been delegated to the three line supervisors, Mespelli, Isen- berger, and Delvalli. In the normal course of the hiring process, at least up to the end of October 1979, prospec- tive employees would fill out an employment applica- tion,2 and were then interviewed by one of the line su- pervisors. If a person was hired as a result of this pro- cess, the application form together with a W-4 form was turned in by the supervisor to David Prentice. Prentice entered the name of the new employee into the payroll system and the papers were filed in an individual person- nel envelope together with other entries for Blue Cross, raises, and other pertinent material. Up to October of 1979 there were no instructions given to the line supervi- sors about checking of any references or other informa- tion. There was no practice or procedure used by the controller's office to check these matters, so that the per- sonnel file when completed was filed, to be withdrawn for notations about raises, or if questions were raised on hospitalization or workmen's compensation, or other matters. The Company apparently had had only relatively minor problems with inaccuracies on the employment applications. Apparently unfamiliar with the traditional and gracious Hispanic use of the maternal surname, both Sullivan and White testified as to problems of name changes with employees of Puerto Rican background, but those problems were straightened out without diffi- culty. In one instance, commenting about an employee listed as Diaz, whose name in fact was Medina, Sullivan admitted that he did not check the rest of the application because he knew Diaz-Medina (or Medina Diaz) was a good hard worker. With this as background, on May 22, 197 9,:' Paul Ger- manotta presented himself at the plant in response to a newspaper advertisement seeking production workers. He filled out one of the application forms, and was inter- viewed by Ernest Mespelli. In filling out the application Germanotta admitted on direct examination that he intentionally omitted reference to the fact that in March 1978 he had received a degree in political science from Antioch College in Yellow Springs, Ohio. He further admitted that while he had worked for J & F Trucking in Winter Garden, Florida, he had not worked for that employer on the dates noted in the application. He stated that he had never worked for Toledo Spring, the second employer listed on the ap- plication, and that he had worked for Boston Bonnie Bakeries, the third and last employer, at a time other than that given on his application. In addition to these errors and omissions Germanotta testified that he purposely failed to list an organization called the Farm Labor Organizing Committee, for which he had worked from March 1978 to early 1979, as an employer. Germanotta had explanations for all of this. On the omission of his degree from Antioch he said that his own past experience indicated that he received "more of a re- sponse from employers when I have left that information 2 The applications were standard orms obtained froml a local station- ary store. 3 All dates herein are in 1979 unless otherwise indicated. out than when I have put it in." Although he was asked, he cited no instances showing where or how he had learned that, nor did he indicate how many other such applications he had filed. As for the inaccurate time peri- ods on the jobs he said he had, he stated that he made adjustments "to cover for when I was in college." The job with Toledo Spring, which he never held, was put in to cover the time he spent working for the Farm Labor Organizing Committee, and to indicate to Respondent that he had had some experience in production work. With regard to this experience with the Farm Labor group, Germanotta stated that he omitted that because he had applied for and did not obtain a job with the Po- laroid Company. He went into some detail about the fact that he had filled out an honest application and that the person who interviewed him at Polaroid had questioned him "extensively" about that particular association, but he could not remember what kind of a job he had ap- plied for at Polaroid. Germanotta testified that he did not hide his college background after he got hired because it no longer suited his purposes to do so. In view of the extraordinary nature of this testimony as it developed in the record of this case I took particu- lar care to observe Germanotta's demeanor while he was relating these matters. I noted his manner as veiled and guarded, and both hesitant and evasive when responding to questions about his employment history and whether he lied or did not lie in situations involving the submis- sion of employment applications. His was not a manner which inspired confidence or which suggested openness and candor. On the basis of his admitted mendacity, and on my observation of his demeanor, therefore, I do not credit any of Germanotta's testimony on substantive issues in this case unless that testimony is independly verified or corroborated. This is not to say that I am unsympathetic to the prob- lems facing a young graduate with a political science major in finding any kind of employment, nor do I feel that unwritten class distinctions should debar a college graduate from manual or production work or vice versa. But Germanotta gave no details on his alleged frustra- tions in looking for work. In fact he told us that he found work immediately upon graduation with the Farm Labor Committee and worked at that for almost a year. In any event, despite my sympathy for what may have been Germanotta's plight, his cynical response is not in my view acceptable in a society based on law and moral- ity. Since I do not credit Germanotta's testimony, I do not believe his uncorroborated statements that he was a good employee and was allowed time off by Mespelli just after he began work. 4 There seems to be no question that Germanotta did re- ceive several raises, starting at $3.65 per hour on May 23 to $3.90 on July 16, $4.75 on August 27, $4.92 on Sep- tember 19, and a general increase in October to $5.16 per I1i this case I wuill draw no negatie inferences because Rcspondent produced no willnesses, siane the negative inferences requested by the (encral Cunsel would require me to credit testimony which I have dis credited. 692 L.B. DARLING DIVISION OF IDLE WILD FARM hour. However, there is no indication, even from Ger- manotta's testimony, that these raises were unusual, or were the result of anything more than acceptable perfor- mance and the natural progression of a new employee to a journeyman level at that plant. Early in October, according to Germanotta, he began discussing with other employees their interest in having union representation.s Robert Rivers, a vice president, chairman of organizing and business representative for the Union, testified that Germanotta called him on Octo- ber II and asked him how to go about getting a union to represent the people at the plant. Rivers suggested that Germanotta find out what support could be obtained from the employees and get back to him. Apparently Germanotta had some success with this be- cause he called Rivers again on October 23 saying that he had had meetings with groups of 2 or 3 to 10 or 12 employees, that he had another employee named Mans- field who was willing to assist him in organizing, and that he felt there was enough interest to get a union cam- paign going. Rivers agreed and set up a meeting for Oc- tober 29. It can thus be established, independently of Germanotta's testimony, that he said he was talking about the Union to employees of Respondent. This fact is verified by the testimony of Controller Joseph Sullivan. His testimony, which I found generally credible, indicated that he heard that there was talk about unionization in the plant at some time at the begin- ning of October, probably from Mespelli or Isenberger. This was apparently raised in the course of conversation during coffeebreaks. Sullivan said that they had to be careful about what they said, and suggested that they talk to someone to see what they could or could not say if in fact union activities were going on. In that same conversation Jacobson also remarked that they should be careful. Apparently discussions continued among management people concerning unions. Sullivan did not know wheth- er Jacobson contacted a labor attorney, but he did recall mention of employees Urbina, Mansfield, and German- otta in connection with the union talk in the plant. Ap- parently there was discussion in general terms about what they could do within the law to avoid unionization of the Company. There were suggestions that they em- phasize the benefits employees were then receiving, the good things about the way the company was run, the good will, and the special favors that Jacobson did for individuals. There was, however, no discussion about cutting out these special benefits. Sullivan admitted that he was not in favor of having a union in the plant, and that he did not feel that unions aided employees. During October Germanotta testified as to an incident where he and Mansfield were compiling a list of employ- ees' names copied from their timecards in a rack, and they were threatened by Night Supervisor Devalli. Mansfield did not testify and I do not credit the unsup- ported statements of Germanotta. I do not find that this incident occurred. Germanotta also testified about a con- versation on the morning of October 22 with Isenberger I This is inconsistent with the testimony of Ronald Soi,ll. ss ho stl ated that the union talk had began shortly after Germanotta began "wrkinlg it the plant. and Mespelli during which these two supervisors uttered various threats, and a promise to transfer Germanotta to a better paying job if he would discontinue his union ac- tivity. Again, I do not credit Germanotta's version of this incident, nor his testimony about "differences" in the way he was treated by Mespelli and Isenberger.6 In October, probably on the 23d, according to Sulli- van's credible testimony, he and Isenberger were talking and the subject got around to Isenberger's desire to return to college. 7 In the course of discussing that, Isen- berger happened to mention that Germanotta was a col- lege graduate. This immediately captured Sullivan's at- tention. David White had previously testified that the Company did not attract people with higher education credentials, and if they did they would like, if possible, to use such people in more beneficial jobs. White did not know whether the Company employed any college edu- cated people on the production line, and Sullivan said there were none, although there may have been summer replacements or others with "possible education." In any event, Sullivan went to the files, pulled out Germanotta's folder, and noted that there was no college listed on his application for employment. Sullivan then asked Isen- berger to find out what college Germanotta had attend- ed. Isenberger reported back later that it was Antioch, and Sullivan called the school. He spoke to a woman at Antioch, and after identifying himself, and the fact that he was checking an employment application asked if Germanotta had graduated from the school. The woman immediately responded that he had graduated in June 1978 as a political science major. The quickness of this reply astonished Sullivan, who stated that he said to him- self that Germanotta must have been a "tremendous stu- dent, or some kind of troublemaker" because "they didn't even have to look at the files They knew him im- mediately." With this information Sullivan reported to Jacobson. After discussing the matter, it was decided that Sullivan would call an attorney named Rock from St. Louis who handled "personnel relationships" for the Company. Rock advised Sullivan to check the application further. Sullivan proceeded to do this, first calling Toledo Spring in Toledo, Ohio. He talked to a woman there who told him that Germanotta had never worked there, but refused to put that information in writing, or even to give her name. Sullivan then called Winter Garden, Florida, and found that J & F Trucking was not listed. He then tried to find a listing in Winter Garden for a Fernando Cuevas, who was described as living at 326 East Maple Street, Winter Garden, Florida, in German- otta's employment application. Sullivan was informed that there was no number for Cuevas either. Finally, Sul- livan called the final employer on the application, Boston Bonnie Bakeries, and was informed that Germanotta had worked there for a short time in 1974 or 1975. I Mespelli iand Isenbergcr were jinl upcrvisors with neither having respnsihilit, for a particlular area or funlii,. hbut both hbing responsibhle for the xhoilc prildt lioll area 7 Silli iall adnlITed that nion at l rlt may I, hase hbeen a part of thi, ciiit ersatiiin 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sullivan then consulted with Jacobson and Rock and it was decided that "since there were so many false state- ments on the application" that Germanotta be terminat- ed. On October 25 Sullivan summoned Germanotta to his office. While Sullivan had already determined to fire Germanotta he confronted Germanotta with the employ- ment application. Germanotta admitted that he had at- tended Antioch, and that he had never worked for Toledo Spring. Germanotta explained, in much the same way as he did at this hearing, the reasons for his actions, but Sullivan told him he was discharged. Germanotta ac- cused Sullivan of firing him for union activities, and Sul- livan placed his hand on the application and stated that the only reason he was being fired was because of the falsifications in the application. Germanotta remained in Sullivan's office until his final paycheck was prepared, signed by Sullivan, and given to him. Germanotta claimed that he was told that he could not go back into the plant to get his clothes or talk to employees, and that he was ordered out of the parking lot by Isenberger, but there is no credible evidence to corroborate or verify this. B. The Sousa Incident Ronald Sousa had worked for Respondent about 2-1/2 years at the time of the hearing. He testified that he and another employee named Emilio Urbina were late for work on the morning of October 24. Sousa testified that after they arrived Isenberger took them into the back office in the plant and had them sign warning slips for being late. According to Sousa, Isenberger then told the two employees that this was the way it would be if there were a union. Sousa did not impress me as a reliable or credible wit- ness. He testified that he had received no more warnings other than the one on October 24, then immediately identified another warning for lateness which was dated October 10, explaining, first, that that one was due to an "altercation" with Isenberger, and then later admitting that it was given to him for sleeping on the job. Further, while Sousa identified Isenberger as the one who brought him and Urbina into the office, made them sign the warnings, and made the antiunion remark,8 I note that the warnings themselves bear the signature "E. Me- spelli." Thus I do not credit Sousa in this matter. C. Analysis and Conclusions I am not unaware that there are elements in this case which raise a suspicion that Germanotta's discharge was due to his activities on behalf of the Union. The General Counsel points out, eloquently, that the longstanding practices of the Company in leaving the hiring and firing process in the hands of line supervisors; the policy of not checking background or references of applicants; the ad- mission by Sullivan that management was aware of the union activity in the plant, and Germanotta's participa- tion in that activity; the surreptitious gathering of infor- mation on Germanotta's employment application without s Despite the General Counsel's subsequent efforts to dispel this fact. it remains in the record. communication with him on this serious issue; the depar- ture from the Company's practice of handling discharges at the supervisory level; and the participation of the con- troller, the president, and the Company's personnel rela- tions advisor in a decision to discharge a low level pro- duction worker. In addition to these points, the timing of the discharge certainly serves to raise a question, and Sullivan's admission that he heard "little or nothing" about the Union after Germanotta left is indicative that Germanotta was the source of the union talk, and that his departure was the cause of its cessation. In other circumstances all of this might be persuasive. Here I do not think that the credible evidence warrants the inference that Germanotta was discharged for his union activity. There is, for example, no showing of animus or hostility toward the Union. Sullivan's testimo- ny shows that management was aware of the union ac- tivity, and of several named employees who were in- volved in it. However, his testimony nowhere indicates that the Company intended to translate its opposition to unionization into unlawful words or deeds. As to the Company's practices, it is true that employ- ment applications were routinely filled out and filed without investigation. But Sullivan's interest in German- otta could just as well have been inspired by the rarity of the latter's college degree as his union activity. His han- dling of the matter without reference to Isenberger and Mespelli can be attributed to his view of himself as the keeper and guardian of the records, and as the person re- sponsible, ultimately, for the employment process. He was further influenced, it is clear from his testimony, by the astonishing, to him, results of his investigation. Thus I can as easily read a lawful as an unlawful motive into the facts of the departures from standard company pro- cedures here. The question of why this discharge received such high level attention seems to me to be due, first, to its unique and bizarre nature. Sullivan testified that he had never encountered such a wholesale falsification of an employ- ment application, 9 and, second, the fact that Sullivan, as well as other members of management, were aware of the union activity in the plant, and of Germanotta's par- ticipation in that activity. In such circumstances pru- dence would constrain any employer to exercise caution, and to defer precipitate action until competent advice could be obtained. In the light of all these circumstances, I decline to infer that Respondent's discharge of Germanotta for fal- sifying his employment application was merely a pretext to cover its true motivation. Nor do I infer that Respon- dent was led to an examination of that employment ap- plication by a desire to obtain evidence to discharge Germanotta. Sullivan's motive, to check the unusual cir- cumstance of a college graduate in one of Respondent's production jobs, was credible and undenied. What hap- pened thereafter cannot be attributed to Respondent. Accordingly, I find that the General Counsel has not established by a preponderance of the credible evidence in this record that Respondent has violated Section 9 His preious experience had been mainly with the names of Hispanic employees, is loted labowe 694 L.B. DARLING DIVISION OF IDLE WILD FARM 8(a)(l) and (3) of the Act. Enterprise Products Company Enterprise Fractionation Company, 196 NLRB 549 (1972); Ashland Oil Company of California, 201 NLRB 524 (1973). CONCLUSIONS OF LAW 1. Respondent L.B. Darling Division of Idle Wild Farms, Incorporated, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Local 2, United Food and Commercial Workers In- ternational Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act as alleged in the complaint herein. Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER L 0 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 'O 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 102 48 of the Rules and Regulations. be adopted by the Board and become its findings, conslusions. and Order, and all objections thereto shall he deemed swaised for all purposes 695