Associated Food Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1972

200 N.L.R.B. 735 (N.L.R.B. 1972)

ASSOCIATED FOOD INC 735
Associated Food Inc and Morris Todres Case
29-CA-2698
December 4, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 11, 1972, Administrative Law Judge'
Bernard J Seff issued the attached Decision2 In this
proceeding Thereafter, the Charging Party filed
exceptions and a supporting brief The Respondent
filed an answering brief
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 and attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety
I The title of Trial Examiner was changed to Administrative Law
Judge effective August 19, 1972
2 The Administrative Law Judge s Decision inadvertently named Local
318 the correct union name is Local 138, International Brotherhood of
Teamsters Chauffeurs, Warehousemen and Helpers of America
3 The Charging Party 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J SEFF, Trial Examiner This matter was heard
in Brooklyn, New York, on July 13, 1972 The complaint
issued on May 26, 1972, based upon charges filed by the
above-named Charging Party (herein known as Todres) on
January 18, 1972,1 alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by refusing to transfer
Todres from the night to the day shift Respondent's
answer denies the commission of the unfair labor practices
alleged, but admits allegations of the complaint sufficient
to support the assertion of jurisdiction under current
standards of the Board ($50,000 annual interstate inflow
and outflow) The answer further admits that the Union
(Local 318) is a labor organization within the meaning of
Section 2(5) of the Act
Upon the entire record in this case, from the observation
of the witnesses,2 and after due consideration of the brief
submitted by the Respondent, the Trial Examiner makes
the following
FINDINGS AND CONCLUSIONS
I THE ISSUES
The General Counsel contends that Respondent refused
to transfer Todres because
Mr Todres, in the course of his employ has taken it
upon himself to espouse the union principles to his
fellow employees He has proceeded to help
employees on his shift when he felt injustices were done
by either the union or the employer Over the years
employees have come to regard Mr Todres as a legal
counsel or advisor, someone to look to, someone who is
knowledgeable in union matters, someone who is
familiar with the union contract
As a result of this activity Mr Todres has had a series
of conversations with Mr Bond (Company Vice
President and an admitted agent of Respondent)
over the years a number of conversations involving one
or more of the activities he had engaged in either on
behalf of himself in some cases or on behalf of
employees in most other cases Over the years Mr
Bond and Mr Todres have developed opposite points
of view with respect to these activities
Since about 1957 as the result of ill health, bursitis, high
blood pressure, and slightly failing vision, Todres has been
requesting a change from the night shift to the day shift In
the beginning the requests were made to the union
delegate, a Mr O'Neil When these requests proved
fruitless, certain conversations were held with Bond
According to the General Counsel in September 1971,
Todres sought to change his shift from the night to the day
shift and in the course of his conversation, Bond "stated
flat out that he would not transfer Mr Todres to the day
shift because Mr Todres was a thorn in his side, that he
wanted to fire him, wanted to get rid of him He was an
adviser to the people and that he didn't want him on days "
As a result of this activity Todres sought redress through
the Union without success and ultimately filed the charge
which is the basis of the instant case
For its part the Respondent, through the lips of its vice
I All events took place in 1972 unless otherwise indicated
2 The testimony of all witnesses has been considered In evaluating the
testimony of each witness demeanor was relied upon In addition
inconsistencies and conflicting evidence were considered The absence of a
statement of resolution of a conflict in specific testimony or of an analysis
of such testimony does not mean that such did not occur See Bishop &
Malco Inc d/b/a Walkers 159 NLRB 1159 1161 Further to the extent
that a witness is credited only in part , it is done upon the evidentiary rule
that it is not uncommon to believe some and not all of a witness
testimony N LR B v Universal Camera Corporation 179 F 2d 749, 754
(CA 2)
200 NLRB No 110
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president, Bond, testified that the Company knew nothing
about the condition of Todres' health and Bond flatly
denied having made the statements attributed to him by
Todres
The only issue in the case concerns the credibility of
Bond versus Todres
II THE FACTS
A The Company's Business Operations
Respondent maintains its principal office and place of
business at 175-45 Brinkerhoff Avenue, St Albans, New
York, where it is engaged in the wholesale sale and
distribution of food products
Vice President Charles Bond has been employed by
Respondent for 30 years He has held the position of vice
president since 1954 His main duties included acting as
head buyer, he also was in charge of the warehouse,
personnel, and the productivity of the operation Bond also
explained that the Company has contractual relationships
with the electricians, engineers , produce, and butcher's
union in addition to Locals 138, 338, and 1500 which are
unions representing retail employees Bond characterized
all of the Company's relations with unionized employees as
being extremely amicable He went on to say that
Respondent had never taken adverse action against any
employee because of union membership or union activity
Bond's assertions in this regard were not controverted by
the General Counsel
Respondent 's warehouse supervisor , Erasmus Manza,
testified without refutation that he is in charge of the
daytime grocery operation Manza at one time was a shop
steward for Local 318 and still maintains his membership
in the Union Manza went on to explain that there is a vast
difference between working in the grocery warehouse
department and in the night frozen food department For
one thing there are approximately 4,700 items handled in
the grocery department whereas there are only about 700
items handled in the night frozen food department The
Company employs a total of approximately 150 employees
and does a gross volume of business in excess of $50
million dollars a year
Bond testified that the difference between the day
grocery department and the nighttime frozen food depart-
ment is about like the difference between day and night
Because of this fact the Company has a policy of not
transferring workers from the night job to work in the day
warehouse operation Bond frankly admitted that on three
separate occasions over the past 15 or so years, despite its
policy of not transferring employees from night to
daywork, there were special problems for the three
employees involved in these transfers
The three exceptions to the Respondent's policy con-
cerning transfers were described as follows An employee
named Thomas Nebgen was the night foreman He
suffered a nervous breakdown, explained to Bond that he
could no longer stand mghtwork and had been employed,
previous to his nighttime assignment, in the daytime
grocery department In response to this request Nebgen
was reassigned to the daytime job from where he had
formerly worked
Another employee, Tommy Reynolds, came to see Bond
in 1965 to request that he be transferred back to the day
grocery warehouse job where he had formerly been
working Reynold's wife had had a nervous breakdown
and implored her husband to change his job back to
daywork because she was fearful of being alone at night
Here again Respondent reassigned Reynolds to the day
shift where he was familiar with the work and had formerly
been employed
The third occasion involved one John McDermott In
1965 or 1966 the Company had an outside truckman by the
name of Jack Brannan who offered to hire McDermott
because Brannan was short of chauffeurs McDermott
preferred daywork to continuing on his night job with
Respondent Consequently he left the Company to go to
work for Braiman
It should be noted that in the cases of Nebgen and
Reynolds both of them had initially been employed on the
day shift grocery job and when their requests for transfers
were made they went back to work on jobs they had
previously held in the grocery department
Bond categorically denied that he ever heard about
Todres' alleged illnesses and he further stated unequivocal-
ly that Todres was not any more active a union man than
about 20 percent of Respondent 's other employees In fact
he testified that the Company was unaware of Todres'
union activities which were no more conspicuous than the
activities of one-fifth of Respondent's other employees
Bond impressed me with his candor while he was on the
witness stand He gave his testimony in a direct , forceful,
and apparently honest fashion I credit his testimony
B The Employment Record of Todres
Todres has been working for the Respondent for 18-1/2
years Bond testified that he was a good worker and
performed well on his job as checker Bond also stated that
he worked during daytime hours and spent about 99
percent of his time doing administrative work at his desk
He rarely visited the night warehouse men because , for the
most part , he left for home before the mghtmen reported
for duty At most he said he occasionally stopped in at the
warehouse in the evening about five or six times in the past
15 years On these visits he did not have protracted
conversations with the employees but did know most of the
men by their first names Bond continued to say that he
never had a three-way conference with Jimmy O'Neil (the
union delegate), Todres , and himself He did recall Todres
visiting him in his office and he may have had possibly
three occasions when Todres requested a transfer to
daytime work These conversations took place over a long
span of years Each time he declined the requests of Todres
and explained the Company's policy against transfemng
men from the night frozen food department to the day
grocery department Bond also testified that Todres never
told him about his poor health Apart from the three
instances of transfers referred to supra, the Company
maintained a consistent policy of not transferring men
from the night shift to the day shift
Bond strongly refuted the testimony of Todres that he
had ever said to any employee he would not transfer
ASSOCIATED FOOD INC 737
Todres but instead wanted to fire him I credit Bond's
denials of the story told by Todres
C Resolution of the Conflict in the Testimony of
Bond and Todres
Todres replied to most of the questions put to him both
on direct and cross-examination in a rambling series of
what could be called not answers but speeches His
answers were seldom direct or relevant to the point under
inquiry He gave the distinct impression that he regarded
himself as the self-appointed and self-annointed guardian
of both his own rights and the rights of his fellow
employees He professed to be well informed about the
rights of the employees as specified in their collective-
bargaining agreement with Respondent His protestations
in this regard were not borne out by his testimony He was
not the elected representative of the employees
It should be noted at this juncture that in the approxi-
mately 20 odd years of contractual relations between the
parties there does not appear to be one word in their long
series of agreements spelling out any union authority
concerning Respondent's right to make transfers of its
employees Since the contract is silent on this point
Respondent has always regarded the subject of transfers as
being encompassed within the management rights section
of the agreement with Local 318
Furthermore Todres cannot claim that his contentions
with respect to transfer were not fairly presented to the
Company by the Union First of all he admitted that he did
not initially bring his complaint to his union representative
When he finally did seek Local 318's support Union
Representative James O'Neil did what he could Even
though the contract between the parties did not create any
rights in the union spokesman to grieve about transfers, the
record shows that the Union did in fact take up this matter
and requested that Bond transfer him to the day shift This
request was made on the basis of asking the Company as a
favor to grant the request of Todres for a transfer Bond
refused the request explaining that if he made such an
exception to an employee who had never had any previous
experience in the day grocery department he (Bond) would
be flooded with similar requests from other employees
similarly situated with Todres
Warehouse Supervisor Erasmus Manza, who was called
as a witness for the Respondent, testified on direct
examination that he was present at separate meetings with
Todres, Bond, and O'Neil Manza testified that he never
heard Bond say he (Bond) would see to it that Todres
never went on the day shift, or that the Company wanted
3 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
to get nd of him, or that. Todres ever, with the knowledge
of the Company, gave advice to fellow employees, or that
Todres was a rotten apple and would spoil the bunch or
that he was a thorn in Bond's side In fact Manza credibly
testified that he never attended any such meeting with
O'Neil, Todres, Bond, and himself concerning Todres'
efforts to be transferred I credit Manza's testimony and do
not credit the version given by Todres
The General Counsel argues that Todres should be
credited because his story was studded with details which
could not have been invented by Todres I am persuaded
that Todres told an unconvincing story shot through with
statements that not only were denied credibly by Respon-
dent's witnesses but seemed to me to be a product of an
overactive imagination Overall I am convinced that
Todres dreamed up much of what he testified to and I do
not credit his testimony
III ANALYSIS AND CONCLUSIONS
The record is utterly silent about any independent 8(a)(1)
activity On the contrary it was not successfully argued by
the General Counsel that the Company's refusal to transfer
Todres was motivated by any antiumon considerations
manifested by Respondent The record evidence supports
my conclusion that Respondent enjoyed unusually good
relations with Local 318 and all the other unions with
which it had regular dealings
The burden of proving the commission of any unfair
labor practices rests on the General Counsel He presented
no proof at all in support of his thesis that Respondent did
in fact refuse to grant the request of Todres to be
transferred because Todres was an activist union member
It is to be noted that I reserved ruling on Respondent's
offer of proof concerning the testimony that Union
representative O'Neil could be expected to offer if he had
been physically able to appear as a witness for Respon-
dent The General Counsel objected to the receipt in
evidence of this offer of proof My decision to dismiss the
complaint on the merits would not be affected by a ruling
on the said offer of proof and I therefore made no ruling
on the point
There is no merit to the General Counsel's case and I
therefore recommend that it be dismissed in its entirety
RECOMMENDED ORDERS
IT IS HEREBY RECOMMENDED that the complaint herein be,
and it hereby is, dismissed in its entirety
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