Foodtown Supermarkets

National Labor Relations Board - Board Decisions

Jan 25, 1984

268 N.L.R.B. 630 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foodtown Supermarkets, Inc. and Local 539, Meat
Cutters, United Food and Commercial Workers
of America, AFL-CIO. Case 7-CA-18674
25 January 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 4 May 1983 Administrative Law Judge Wil-
liam A. Gershuny issued the attached decision. The
General Counsel and Charging Party filed excep-
tions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The General Counsel and Charging Party have excepted to some of
the judge's credibility findings. 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 the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and fEnd no basis for reversing the findings. The judge
did not credit Smith generally. We, therefore, find it unnecessary to rely
on his discussion concerning the absence of a charge or complaint allega-
tion as additional grounds for discrediting Smith's testimony that on 6
November 1980 Adler threatened to discharge Smith if he proceeded to
arbitrate a previous suspension.
a In the absence of proper exceptions to the judge's failure to defer,
Members Hunter and Dennis do not reach the deferral issue.
DECISION
STATEMENT OF THE CASE
William A. Gershuny, Administrative Law Judge: A
hearing was held in Detroit, Michigan, on complaint
issued July 7, 1982, based on a November 12, 1980 dis-
charge of a meatcutter, Craig Smith, allegedly for pros-
ecuting a grievance over an earlier 3-day suspension.
Previously, on January 12, 1981, the Regional Director
deferred to pending arbitration proceedings under Dubo
Mfg. Corp., 142 NLRB 431 (1963). On June 15, 1981, an
arbitrator reduced the discipline from discharge to a 3-
month suspension, with backpay only for time lost in
excess of 3 months, based on findings that Smith called
Company President Adler a "son of a bitch" during the
course of a discussion of the grievance and his work his-
tory. Contending that the unfair labor practice issue was
268 NLRB No. 92
not considered by the arbitrator and that the result was
repugnant to the Act, the Regional Director thereafter
issued this complaint on July 7, 1982.
Respondent Foodtown Supermarkets, Inc., contends,
inter alia, that the discharge was not motivated by un-
lawful considerations and that the Board should defer to
the arbitrator's decision.
Based on the record evidence, including my observa-
tion of witness demeanor, but excluding any consider-
ation of the findings and conclusions of the arbitrator, I
conclude that Smith was discharged solely and exclusive-
ly for the reason that he called the company president a
son of a bitch, that Smith's grievance activity played no
role whatever in the discharge decision, that Smith
would have been discharged for his use of profanity re-
gardless of the pendency of a grievance, and that the
complaint must be dismissed. Accordingly, there is no
occasion to reach the deferral issue.
FINDINGS OF FACT AND CONCLUSION OF LAW
I. JURISDICTION
The complaint alleges, the answer admits, and I find
that Respondent is an employer subject to the Act.
II. LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Meat Cutters Local 539 is a labor organization
within the meaning of the Act.
III. UNFAIR LABOR PRACTICE
A. The Facts
Respondent operates five food supermarkets in the De-
troit area, employing approximately 23 meatcutters. All
of its employees, including the meatcutters, have been
represented by the Union for more than 30 years. Admit-
tedly, its relationship with the Union has been good;
there never has been a strike; there has been no refusal
on Respondent's part to entertain grievances or to pro-
ceed to arbitration, although until 1980 all grievances
were disposed of informally at the first or second step of
the contract grievance procedure; and no employee has
been discharged or disciplined for pursuing a grievance.
Smith was hired by Respondent 10 years ago as an ap-
prentice meatcutter. Admittedly, there had existed long
before 1980, when he was discharged, a personality con-
flict between Smith and Company President Adler. Ad-
mittedly also, Smith's work record over the years was
"absolutely awful." Between 1977 and 1980, Smith was
disciplined 11 times: 9 were related to absenteeism and
for which he was issued 7 written warnings and suspend-
ed twice; 1 was based on the theft of meat (grinding
higher priced chuck, labeling it as lower priced round
meat and purchasing it for himself at the lower price) for
which he received a written warning; and I was based
on customer complaints and for which he took a volun-
tary reduction from meat department manager to meat-
cutter and received a written warning. Noteworthy is
the fact that until the September 26, 1980, 3-day suspen-
sion without pay for absenteeism, Smith filed no griev-
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FOODTOWN SUPERMARKETS
ance over any of the discipline he had received (al-
though admittedly he had pursued one or two other
grievances over nondisciplinary issues). And, finally, in
late 1980 it was learned that Smith was operating a com-
mercial meat-cutting business out of his barn.
The 3-day suspension, out of which the present con-
troversy grows, was unresolved at steps one and two and
proceeded to a step 3 meeting between Smith, two union
business agents, and Adler on November 6, 1980. The
General Counsel contends that Adler's statements at this
meeting reveal the true motive for Smith's discharge 6
days later on November 12, 1980. The credible evidence
is that Adler rejected the Union's demand for backpay,
because the suspension was justified in light of the many
warnings issued previously for absenteeism; that Adler,
referring to Smith's earlier theft of meat, said, "I should
have blown him out of the water a long time ago"; and
that the Union said the grievance would be taken to arbi-
tration. In fact, the grievance was dropped by the Union,
which never requested arbitration. Prior to the step 3
meeting, Adler had offered to settle the grievance by
permitting Smith to work 2 double-time days.
One week after the step 3 meeting, Adler telephoned
each meat department to report that an advertising error
in the price of Thanksgiving turkeys would be corrected
the following day. As to the store at which Smith
worked, Adler spoke with Assistant Store Manager Os-
trander and asked to speak with the meat department
manager. When informed that it was his day off and only
a meat wrapper was working, Adler asked where Smith
was. When informed that Smith had been given permis-
sion to leave early, Adler became angry because this was
the busiest holiday season and because one of Smith's
continuing problems was absenteeism. It also occurred to
Adler that Smith had left the meat department unattend-
ed by a meatcutter so as to pursue his own personal
meat-cutting business. He accused Ostrander of "running
a country club" and hung up. Ostrander, noting that
Smith had not yet left the store, called Adler and put
Smith on the telephone. Adler informed him of the pric-
ing error; asked him what he was doing going home at a
holiday time; reminded Smith of his prior disciplinary
record, his suspension, and his demand for backpay;
stated that all this costs a lot of money; told him that
they should stop fighting and go to work and work to-
gether; and asked if Smith was going to "jam" the griev-
ance "up our ass." Smith replied, "You're damn right,
you son of a bitch." Asked by Adler if Smith was calling
him a son of a bitch, Smith replied, "Damn right, you
son of a bitch." Adler told him that he could not work
there and call him a "son of a bitch" and that he was
fired. Smith stated, "You tell Ostrander the same thing
you told me, that I'm fired," and handed the telephone
to Ostrander. Ostrander, who was in the office when the
call was placed, 2-3 feet from Smith, heard Smith call
Adler a "son of a bitch."
Adler telephoned union business agent Johnson to
inform him of the discharge, but the two began to quar-
rel and Adler did not give him the reason for the dis-
charge at that time. Shortly before the arbitration hear-
ing, the Union was advised that Smith was discharged
for calling Adler a "son of a bitch."
Throughout, I have credited the testimony of Adler
and Ostrander over that of Smith and the two business
agents. Both Adler and Ostrander, based on my observa-
tion of their demeanor on the stand, clearly appeared to
me to be candid and convincing and truthful. Adler's ad-
mission that he was angered and incensed by Smith's ir-
regular work habits and not by the fact that Smith was
pursuing a grievance for 3 days' pay rings true, given
Smith's history of discipline and Adler's amicable union
relationship over many years. It is also noted that no evi-
dence was offered to show that other employees called
Adler similar names to his face without being subjected
to discipline. Smith, on the other hand, was considerably
less than candid, and, based on my observation of his de-
meanor on the stand, appeared to be holding back the
more accurate account of relevant events. Moreover, his
testimony was contradicted in significant part by Os-
trander and and the union agents as well. As to the busi-
ness agents, it can be said that they were particularly
vague in their recollection of events, even to the point of
contradicting each other. Finally it must be said that tes-
timony that threats were made by Adler at the step 3
meeting to discharge Smith if the 3-day suspension were
taken to arbitration is totally incredible for the reasons
that no unfair labor practice charge was filed and coun-
sel for the General Counsel neither alleged nor suggested
that Adler engaged in any unlawful conduct at that
meeting. It can be expected that, if in fact such a threat
to discharge were made on November 6, 1980, the Gen-
eral Counsel surely would have alleged a separate viola-
tion when it became known, 6 days later, that the griev-
ant was discharged. No charge was filed and no allega-
tion made because, in fact, no threat was made by Adler.
B. Discussion
The General Counsel's contention that the true motive
for Smith's November 12 discharge was his pursuit of a
grievance is wholly misplaced for two reasons: one, it ig-
nores the essential distinction between a discharge based
on independent conduct during the course of a grievance
discussion and one based on pursuit of that grievance;
the other, it ignores 30 years of amicable labor relations
at the stores and Smith's long history of discipline. Each
is an essential ingredient in the decision-making process
where the General Counsel's case is bottomed solely on
circumstantial evidence. The long history of amicable re-
lations and dispute resolution on the part of Respondent
and, more particularly, its president, Edwin Adler, dis-
pels any inference that the true motive for the discharge
was Smith's pursuit of a grievance and not his calling
Adler a "son of a bitch." Neither this Act nor any other
federal labor law protects an employee from insubordi-
nate conduct of the type engaged in by Smith. Nor is an
employer statutorily barred from becoming outraged by
an employee's habitual absenteeism. Absenteeism and em-
ployee theft, it can be noted, are national problems of
epidemic proportions. Adler's refusal to settle the 3-day
suspension grievance at step 3, thus forcing the Union to
take it to arbitration if it wished to pursue the issue fur-
ther, was a perfectly reasonable one given Smith's poor
work history.
631
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having seen and heard the witnesses, I am unable to
detect even the faintest suggestion that Smith's grievance
activity played any role whatever in Adler's decision to
discharge him. I conclude, therefore, that Smith was dis-
charged solely and exclusively for the reason that he
called the Company president a "son of a bitch"; that
Smith's grievance activity played no role whatever in
that discharge decision; and that Smith would have been
discharged for his profanity on November 12, regardless
of any grievance activity on his part.
On the foregoing findings of fact and conclusion of
law and on the entire record, I issue the following rec-
ommended
ORDER'
It is ordered that the complaint be, and the same
hereby is, dismissed.
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
632