Alfred M. Lewis, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 336 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alfred M. Lewis, Inc. and Warren J. McCarty.
Case 28-CA-5596
September 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 18, 1980, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
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.
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. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard before me in Phoenix, Arizona, on
May 6 and 7, 1980. The complaint, issued December 28
and based on charges filed November 13 and December
17, 1979, by Warren J. McCarty, an Individual, alleges
that Respondent, Alfred M. Lewis, Inc., has engaged in
unfair labor practices within the meaning of Section
8(aX3) and (1) of the Act. Briefs have been submitted by
the General Counsel and Respondent and have been
carefully considered.
Upon the entire record in the case, and from my ob-
servation of the witnesses including their demeanor, I
make the following:'
A post-hearing motion by the General Counsel to correct the record
in 33 respects, dated May 30, 1980, and unopposed, is hereby granted.
252 NLRB No. 49
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Alfred M. Lewis, Inc., a California corporation, main-
tains an office and place of business at Phoenix, Arizona,
where it is engaged in the wholesale, sale, and distribu-
tion of dry groceries, refrigerated foods, and related
products. It annually purchases and causes to be trans-
ported in interstate commerce and delivered to its place
of business in Arizona, groceries and other items valued
in excess of $50,000 directly from suppliers located in
States other than the State of Arizona. I find that the op-
erations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the National Labor
Relations Act, as amended.
II. THE LABOR ORGANIZATION INVOLVED
Transport & Local Delivery Drivers, Warehousemen
& Helpers, Local No. 104, an affiliate of the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, herein the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Issue
The sole issue herein is whether Respondent in August
1979 denied employee Warren J. McCarty2 a 15-minute
break, and whether Respondent thereafter, about Sep-
tember 17 and 20, discriminated against and discharged
McCarty because he asserted rights under the collective-
bargaining agreement between the Union and Respond-
ent. According to Respondent, he was discharged solely
because he had stolen production time at work or, stated
otherwise, had falsified production records by claiming
payment for work not actually performed by him. As
found below, the evidence preponderates in favor of Re-
spondent's position.
B. Sequence of Events
The warehouse and trucking employees of Respondent
are represented for the purposes of collective bargaining
by the Union and, at the time relevant herein, a 3-year
collective-bargaining agreement covered the term from
March 1, 1978, up to and including February 28, 1981.
McCarty initially entered the employ of Respondent
on February 20, 1978, as a part-time employee on the
night shift. Approximately I month later, he became a
full-time employee on the night shift in the grocery
warehouse and, during July, August, and September
1979, he was employed principally in the tobacco, candy,
and repack rooms of the grocery warehouse. His starting
time for the night shift commenced at 2 p.m., and he was
under the primary supervision of Supervisor Randy
Baughman.
Article XI of the contract treats with meal and break
periods and generally provides that during an 8-hour
shift employees are entitled to two rest breaks, each of
2 To be distinguished from fellow employee and Job Steward Michael
K. McCarthy of Local 104.
336
ALFRED M. LEWIS, INC.
15 minutes' duration, which are compensated, and also to
a half hour lunchbreak, which is not compensated. Em-
ployees who work overtime past 8 hours are entitled to
an additional 15-minute break at approximately the 10th
hour when an employee is to work 11 or more hours.
During the 3-month period, stated above, these employ-
ees did work a great deal of overtime. Stated otherwise,
employees who started their shift at 2 p.m., as did
McCarty, and then worked until 1:30 a.m. would have
put in 11 hours of time for which they were compensat-
ed.
On a particular shift, during August 1979, McCarty
was working in the candy room around I a.m. Shortly
after I a.m., he admittedly made a comment to his co-
workers in the presence of Baughman that the other em-
ployees should slow down in order to obtain an addition-
al 15-minute break. Several minutes later and shortly
before 1:30 a.m., Baughman, who had heard this com-
ment, told McCarty to punch out and go home; one
effect of this was to deprive him of eligibility for an ad-
ditional 15-minute break.
Some weeks later, on September 17, 1979, McCarty
was given an indefinite suspension by Respondent. As he
was told, and his own testimony so demonstrates, this re-
sulted from the Company's conclusion that he was sus-
pected of cheating on his production cards. Several days
later, on September 20, this discipline was increased to a
discharge.
As for the August incident, it is clear that McCarty
was not entitled to an extra break because he did not
work a full 11 hours. And there is substantial evidence
that it was the normal practice of Respondent to give the
break at different times, varying from I to 1:30 a.m.
Baughman testified that he generally tried to send
home employees who disliked working overtime, and on
the night in question he followed this policy precisely.
Thus, it is uncontroverted that shortly after I a.m., he
sent home employee Wesley because he knew of the lat-
ter's distaste for working late. As Baughman testified,
and I find, he did not need McCarty any longer that eve-
ning and, moreover, he was aware of McCarty's prior
statement to employees suggesting a slowdown so as to
be awarded an additional break.
On September 17, just after McCarty reported to work
at 2 p.m., he was called to a meeting with Dave Ashby,
superintendent of operations; Baughman; and Union Ste-
ward Mendias. Ashby told McCarty, as the latter testi-
fied, that he was suspected of cheating on his production
cards and that he was suspended until further notice. He
was further told that Baughman had observed this cheat-
ing on the prior shift, and that fellow union members had
turned him in, and the record supports the latter finding.
Indeed, in his testimony at the instant hearing
McCarty, in effect, admitted that he had cheated on his
production card on the night in question. While the pre-
cise facts are not entirely clear, it appears that his pro-
duction card showed him as working time that he had
not.
Both Ashby and Baughman testified, and I find, that
McCarty admitted his cheating at the meeting on Sep-
tember 17. McCarty did deny that he had made such an
admission, but he did not deny that he was actually en-
gaged in cheating. And the cheating is corroborated else-
where.
The basic case of the General Counsel is that Re-
spondent was determined to "get" McCarty for his per-
sistence in asserting his rights under the collective-bar-
gaining agreement. There is evidence of a number of
contract grievances filed by McCarty with the Union.
However, although he was suspended on a number of
occasions during 1979, only one such suspension was
ever submitted to the grievance and arbitration proce-
dures set forth in the agreement, and this was won by
McCarty after his discharge. These grievances to the
Union include those dated January 10, July 2, and Sep-
tember 4, 1979.
There is also most persuasive evidence from Normal
Thelen, employee relations manager and safety coordina-
tor of Respondent. The General Counsel adduced evi-
dence that various employees including McCarty had
gone to OSHA and filed a grievance about working con-
ditions. Her testimony is not controverted, and I find
that this never came to the attention of Respondent al-
though another matter involving other employees in an
OSHA matter did. And the testimony of Thelen also dis-
closes, and this is not controverted, that Respondent
does not receive copies of complaints filed by an em-
ployee with the Union. She was aware of only one
grievance filed by him which came to the attention of
Respondent.
The General Counsel does rely on certain testimony
by Union Steward Mike McCarthy. According to
Baughman, it was McCarthy who initially notified him
that McCarty was cheating on his production cards. Sig-
nificantly, McCarty, although presumably available, was
not brought back as a rebuttal witness to controvert this.
According to McCarty, Baughman told him in June or
July that McCarty was a thorn in the side of Respond-
ent, which would like to find a way to discharge him.a
Baughman flatly denied that there was any attempt to
"set-up" McCarty on the subject of cheating on produc-
tion records and testified, without contradiction, that it
was McCarty who approached him in the warehouse and
advised him that McCarty was cheating on his produc-
tion records, and that the other men did not like this. As
a result, Baughman reported this incident to Ashby and
it was Ashby who instructed him to conduct an investi-
gation of employees to determine whether any cheating
was taking place.
As a result, Baughman investigated the matter on the
next shift of September 16, and determined that McCarty
was in fact cheating. Indeed, Night Warehouse Supervi-
sor Jim Theis was called to the scene by Baughman to
verify this; this was done at the prior suggestion of
Ashby who desired verification of any such matter. And
the record has disclosed this verification by Theis, both
in his testimony and in writing.
' There is testimony about an incident when Baughman and other em-
ployees were drinking beer after work and there was some joking about
the incident when McCarty was sent home before completing II hours,
and as a result was allegedly put in his place. I see nothing here which
assists the General Counsel or is dispositive of the issue before me.
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the testimony of McCarty is to be believed, it would
follow that he, a union steward, sat by idly and did noth-
ing while McCarty, his union brother, was discharged
according to a plan set up by Respondent. McCarty did
present some testimony that other employees were cheat-
ing on their production records in similar fashion, but
this is not supported. He did name a number of employ-
ees who were so engaged and two of them, Kuban and
Bond were called as witnesses; they were unimpressive
or evasive and denied that they were involved in any
such system of cheating on production. Indeed it was
only Steward McCarty, who admitted that he was in-
volved on occasion in cheating in this manner.
There is also evidence that at a later date, on January
28, 1980, management personnel questioned all employ-
ees in the tobacco, candy, and repack rooms about
McCarty's allegations of widespread cheatings, but un-
derstandably received no admissions of such misconduct.
C. Concluding Findings
To sum up, the General Counsel has not met its
burden of proof with respect to McCarty. On the other
hand, Respondent has offered plausible and sensible rea-
sons for the actions taken against him, and specifically
because he was caught cheating on his production re-
cords, a factor he in effect admitted. And as for the inci-
dent when he was sent home several minutes early be-
cause he was not needed, and because several minutes
earlier he had openly encouraged other employees to
4 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
slow down in order to get an additional break, I fail to
see how this assists the General Counsel, although Re-
spondent may not have been averse to the opportunity to
take this action.
In essence then, I find that the evidence preponderates
in favor of the position of Respondent herein, although
the General Counsel has argued forcefully at length in
favor of its position. And while there is some testimony
as to working practices of an unauthorized nature, I see
nothing sufficient to affect these findings in favor of Re-
spondent. I shall therefore recommend dismissal of the
complaint.
CONCLUSIONS OF LAW
1. Alfred M. Lewis, Inc., is an employer whose oper-
ations affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. Transport & Local Delivery Drivers, Warehouse-
men & Helpers, Local No. 104 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)(3) and (1) of the
Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER4
The complaint is dismissed in its entirety.
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.
338