Fry Foods, Inc.

National Labor Relations Board - Board Decisions

May 22, 1981

256 N.L.R.B. 137 (N.L.R.B. 1981)

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. '3
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.
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