Ludwig Fish & Produce, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1975

221 N.L.R.B. 1306 (N.L.R.B. 1975)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ludwig Fish & Produce, Inc. and Local 298, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case 25-
CA-6648
amend its initial Order in this matter as indicated
below.
ORDER
December 30, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On December 12, 1975, Administrative Law Judge
Ralph Winkler issued the attached Supplemental
Decision and Recommendations in this proceeding.'
Thereafter, the General Counsel filed exceptions and
a supporting brief.2
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 background of the case, including the action
taken by the Board and the Court of Appeals for the
Seventh Circuit is detailed in the Administrative Law
Judge's Supplemental Decision and Recommenda-
tions and need not be repeated here.
Pursuant to his understanding of the terms of the
remand, the Administrative Law Judge passed on the
eligibility for reinstatement and backpay of discrirru-
natee Jerry Girardot. Based on the record evidence
of Girardot's conviction on October 22, 1975, for
theft from the Respondent during his employment on
July 8 and September 11, 1974, the Administrative
Law Judge concluded that Girardot forfeited entitle-
ment to reinstatement and backpay. In view of his
finding with respect to Girardot's status and eligibili-
ty for reinstatement and backpay the Administrative
Law Judge also concluded that the circumstances of
this case do not warrant issuance of a bargaining
order.
The Board has considered the record and the
attached Supplemental Decision and Recommenda-
tions in light of the exceptions and brief and has
decided to affirm the Administrative Law Judge's
foregoing rulings, findings, and conclusions3 and to
i The original Decision and Order is reported at 220 NLRB No 160.
2 Thereafter , by telegram dated December 22, 1975, the General Counsel
filed a clarification of his brief The Board also received a petition to
approve settlement filed by counsel for parties , Jerry Girardot and Gene
Pennington
3 In so doing , however , we do not adopt the Administrative Law Judge's
construction of our Order dated December 5, 1975, wherein we granted
General Counsel's request for special permission to appeal the Administra-
tive Law Judge 's ruling approving the settlement agreement and directed
issuance of a supplemental decision . We hereby reaffirm our disapproval of
the proposed settlement agreement
We also find it unnecessary to,reopen the record and reassign this case to
the Administrative Law Judge who originally heard this matter We note
221 NLRB No. 226
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Ludwig Fish & Produce, Inc., La Porte, Indiana, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on
behalf of, any labor organization by discharging
employees or otherwise discriminating against them
in any manner, with regard to their hire and tenure of
employment, or any term and condition of employ-
ment, because of their union activities.
(b) In any other manner interfering with, restrain-
ing, or coercing any employee in the exercise of his
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Gene Pennington immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights
previously enjoyed, and make him whole for any loss
of pay due to the discrimination against him by
awarding him backpay from the date of his discharge
to such time as he receives a valid offer of
reinstatement, the computation of such moneys to be
in accord with the Board's Decision in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its establishment in La Porte, Indiana,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
that the only material finding predicated solely on Girardot' s testimony
concerns Tom Robinson's alleged threat to lock the plant door and close
down if the Union came in In view of the evidence of Girardot's conviction
and hence his unreliability as a witness , we conclude that there is no
probative evidence in the record to sustain the original finding of a violation
of Sec 8(a)(I) based on this alleged incident Accordingly, we shall dismiss
the complaint insofar as it alleges such a violation of the Act.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
LUDWIG FISH & PRODUCE, INC.
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 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MURPHY, dissenting:
Unlike my colleagues, I would have approved the
settlement agreement between the Respondent and
the Union and concurred in by the discriminatees, as
discussed fully in the Supplemental Decision. I
would find that the authority to accept settlements is
inherent in the functions of an Administrative Law
Judge upon remand of a case, unless specifically
excluded by the terms of the remand order. That was
not the situation here. Furthermore, the settlement
was subject to Board approval. Accordingly, I cannot
concur in this independent decision even to the
extent it adopts the Supplemental Decision, inas-
much as it is contrary to the agreement and I see no
reason to conclude that the terms of that agreement
would violate the policies of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
The Act gives all employee these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT discourage membership in, or
activities on behalf of, any labor organization by
discharging employees or otherwise discriminat-
ing against them in any manner, with regard to
their hire and tenure of employment, or any term
and condition of employment, because of their
union activities.
1307
WE WILL offer to Gene Pennington immediate
and full reinstatement to his formerjob or, if that
job no longer exists, to a substantially equivalent
job, without prejudice to his seniority or other
rights, and make him whole for any loss of pay
suffered by reason of the unlawful conduct
against him.
LUDWIG FISH &
PRODUCE, INC.
SUPPLEMENTAL DECISION AND
RECOMMENDATIONS
RALPH WINKLER , Administrative Law Judge; This
matter was assigned to me for hearing on December 2,
1975, pursuant to remand by the Court of Appeals for the
Seventh Circuit and the Board 's consequent remand in
review proceedings of a Decision and Order of the Board
in Ludwig Fish & Produce, Inc., 220 NLRB No. 160 (1975).
A brief statement of the earlier stages of this case is
necessary to a consideration of the issues on remand.
The complaint in this matter alleged , in substance, that
Respondent unlawfully discharged Gene Pennington and
Jerry Girardot on October 28, 1974; that a majority of
employees in a drivers and warehousemen unit designated
the Union (Teamsters Local 298) as their bargaining
representative on October 29, 1974; and-that, in addition to
other relief, a bargaining order was appropriate under
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969).
The original hearing was conducted by Administrative
Law Judge Ivar Peterson , and he issued his Decision on
March 31, 1975 (attached to 220 NLRB No. 160).
Crediting and relying on testimony of Girardot, inter alios,
Judge Peterson concluded that Respondent discharged
Girardot and Pennington for union reasons on October 28,
1974; and he recommended that they be reinstated with
backpay. Judge Peterson, further found that Girardot,
Pennington , and one Wood were within a five-marl
bargaining unit , and that these three men signed union
authorization cards on October 29, 1974 (the day after
Girardot's and Pennington's discharge , and after Wood
had walked out in protest against the discharges). No other
cards were adduced . Considering the smallness of the
bargaining unit , the fact that the Union had not made a
bargaining request, and the reinstatement order which he
was recommending , Judge Peterson found it unnecessary
to recommend a Gissel bargaining order ,in the circum-
stances of the case.
Both Respondent and the General Counsel filed excep-
tions to Judge Peterson 's Decision, Respondent attacking,
among other things, certain credibility findings made by
Judge Peterson as to Girardot's testimony, while the
General Counsel excepted to Judge Peterson's rejection of
a bargaining order . In its Decision and Order issued on
October 6, 1975, the Board affirmed the challenged
credibility resolutions and also granted the General
Counsel's request for a bargaining order . The Board stated
in the latter connection that the size of the unit and the
absence of a bargaining request were immaterial in a Gissel
context, and it found that the cards of Girardot and
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pennington should be counted for majority representation
purposes even though executed after their discharge,
because "they retained their status as employees after their
unlawful termination the previous day."
On October 23, 1975, Respondent filed the aforemen-
tioned petition to review the Board's Decision and Order
and it concurrently requested that the court remand the
case to the Board (a) to receive evidence respecting
Girardot's conviction "on a plea of guilty ... of taking
cash from [Respondent]" and (b) to file with the court
"any modified or new findings with respect to reinstate-
ment, backpay, bargaining, and all other pertinent matters
which it may make by reason of the evidence so adduced
.... The court, on November 14, 1975, granted
Respondent's remand motion and directed the Board to
take "additional evidence which is material to the Board's
decision and order . . . and which was not available .. .
prior to the issuance of the Board's order" (Docket No. 75-
1976). The court also directed that "The record on review
and any supplement or statement made in accordance with
this order shall be filed herein no later than January 5,
1976."
The Conviction
A criminal Information was filed in the LaPorte City
Court charging Girardot with theft of $86.20 from
Respondent during his employment on July 8 and
September 11, 1974.i Girardot was represented by counsel
at the arraignment on October 22, 1975. Girardot pleaded
guilty and was convicted. (It is recalled that the Board had
issued its Decision and Order on October 6, 1975.)
Asserting Fifth Amendment rights, Girardot refused to
state at the reopened hearing the nature of the criminal
charges as to which he was convicted. The record
establishes that they involved his withholding monies
collected on account from Respondent's customers.
The General Counsel did not call any witnesses at the
reopened hearing nor did he proffer any other evidence in
mitigation or, otherwise in an attempt to rehabilitate
Girardot.
Contentions of the Parties
Respondent asserts that Girardot's conviction of theft or
embezzlement during his employment not only disqualifies
him for relief respecting his discharge by Respondent but
I The Information, labeled "theft - Bums 10-3030," recites that on the
stated dates Girardot did "unlawfully exert unauthorized control over
property of Ludwig Fish and Produce Company, to wit: cash in the
aggregate amount of 86.20, with intent to deprive said owner of the use and
benefit thereof."
2 Conference Report No. 93-1597 on the New Federal Rules of Evidence
(Public Law 93-595, 93rd Cong., 2d Sess.) states, in part, as follows
respecting Rule 609 dealing with impeachment by evidence of conviction of
crime:
A. Rule 609(a)-General Rule
The House bill provides that the credibility of a witness can be
attacked by proof of prior conviction of a crime only if the crime
involves dishonesty or false statement The Senate amendment
provides that a witness' credibility may be attacked if the crime . .
involves dishonesty or false statement, regardless of the punishment
The Conference adopts the Senate amendment with an amendment.
The Conference amendment provides that the credibility of a witness,
also should preclude his inclusion within the bargaining
unit, and also precludes consideration of his union
authorization card in determining the Union's majority
status on October 29, 1974. Respondent further asserts that
under the terms of the court's remand the nature 'of the
offense is such 2 as to require' a reconsideration of
credibility resolutions made by Judge Peterson and
affirmed by the Board in regard to all matters involving
Girardot's testimony on material issues in the original case.
The General Counsel, when asked to respond to
Respondent's aforementioned claims, asserted he was not
prepared to state a position as to the impact, if any, of the
conviction on Girardot's reinstatement and backpay but
that the conviction "may have a bearing" on such remedial
items. The' General Counsel did have a position concerning
Respondent's other claims, namely, he did not believe that
the conviction affected any other issues and he thus
contends, in effect, that the court's remand order "may"
affect only the, matter of Girardot's remedy.
As appears above, Respondent's motion for remand and
the court's granting of such request were not limited ' to
Girardot's reinstatement and backpay. And this then
involves a substantial question raised by Respondent at the
beginning of the reopened hearing. Respondent thus
objected to the fact that I, and not Judge Peterson, was
presiding at the hearing. If the remand requires that all
material issues affected by Girardot's credibility be
reconsidered in light of his conviction, then only Judge
Peterson is in a position to make such evaluation on the
present record, as it was he and not I who saw the
witnesses and heard their testimony and who made the
original credibility determinations .3 I rejected Respon-
dent's objection at the time, erroneously .1 now conclude,
for I am satisfied and find that such credibility reconsider-
ation is required by the remand.
The Settlement
After the evidence on remand was in and the parties had
stated their positions, the hearing was recessed to afford
the parties an opportunity to consider a voluntary
settlement of the case, and the parties then did undertake
settlement discussions. Respondent and the Union, the
latter in consultation with the dischargees who, were
present at the hearing, thereupon submitted a proposed
settlement agreement which they executed and which, in
substance, provides for posting of notices, reinstatement of
whether a defendant or someone else, may be attacked by proof of a
prior conviction but only if the crime' (1) or (2) involved
dishonesty or false statement regardless of the punishment
By the phrase "dishonesty and false statement" the Conference
means crimes such as perjury or subornation of the perjury, false
statement, criminal fraud, embezzlement, or false pretense, or any other
offense in the nature of crimen falsi, the commission of which involves
some element of deceit, untruthfulness, or falsification bearing on the
accused's propensity to testify truthfully.
The admission of prior convictions involving dishonesty and false
statement is not within the discretion of the Court Such convictions are
peculiarly probative of credibility and, under this rule, are always to be
admitted. Thus, judicial discretion granted with respect to the
admissibility of other prior convictions is not applicable to those
involving dishonesty, or false statement.
3 APA, 5 U S C.A § 554(d); N L. R B v. T H Burns and R H Gillespie,
d/b/a Burns and Gillespie, 238 F.2d 508, 510 (C A 8, 1964); cf. Gamble-
Skogno, Inc v Federal Trade Commission, 211 F 2d 106 (C.A 8, 1954).
LUDWIG FISH & PRODUCE, INC. 1309
Pennington, and payments of $4,000 to Pennington and
$2,000 to Girardot. The proposed settlement also recites
that the Union agrees to withdraw a claim for representa-
tion. The settlement agreement further provides that it was
subject not only to my approval but to the Board's
approval, as well, and that Respondent, should the Board
approve the settlement, will withdraw its petition for
review . The General Counsel objected to the settlement
agreement and refused to join in it, and I requested a
statement of particulars respecting his objections . His first
objection was to the effect that I was without jurisdiction
to modify the Board's Order (220 NLRB No. 160). Next,
he objected to the Union 's agreement to omit a Gissel
bargaining order. And then he objected to the $4,000
allotted to Pennington , in which connection he claimed
that Pennington 's backpay figure was approximately
$7,600 . I then inquired whether, in reaching this claimed
amount , the General Counsel had considered backpay
items such as interim earnings and willful loss of
employment , and he replied that he had not inquired into
such items . I have always believed that in a settlement
situation one expected fairness and candor from all parties,
including the Government , without regard to technical
questions of burdens of proof, and I indicated as much to
the General Counsel. At this point, the General Counsel
requested a recess, and upon his return a minute or two
later he announced that Pennington had just informed him
that he (Pennington) had interim earnings of approximate-
ly $100. The General Counsel stated no objection about
Girardot's backpay figure or as to the fact that the
settlement agreement did not provide for his reinstatement.
Having heard and considered the General Counsel's
objection to the proposed settlement, I approved the
settlement agreement signed by Respondent and the Union
and I advised the parties that I would submit the
settlement to the Board for its consideration in accordance
with the terms of the agreement . Fully aware that
objections of the General Counsel to a settlement should
not be regarded lightly, I believed at the time - and still
do - that the policies of the Act would be effectuated by
having this litigation resolved by the settlement agreement
of Respondent and Charging Party Union . I was satisfied
at the time in view of his conviction that Girardot, even if
unlawfully discharged, should not be awarded either
reinstatement or backpay,4 and moreover , the General
Counsel had not objected at the time concerning the
settlement's treatment of Girardot. I also believed that the
conviction had introduced a new consideration as far as a
bargaining order was concerned and that in view of the
totality of circumstances, a Gissel bargaining order was
neither warranted nor appropriate. Respecting Pennington,
the settlement did provide only $4,000 for a claimed
backpay figure of approximately $7,600, and I do not
believe in "bargain basement" settlements of backpay
4 NLRB. v. Coca-Cola Bottling Co, 333 F 2d 181, 185 (C A. 7, 1964),
N L R B v. Big Three Welding Equipment Company, 359 F.2d 77, 83-84
(C A. 5, 1966), N LR B v Big Three Industrial Gas & Equipment Company,
405 F.2d 1140 , 1143 (C.A. 5, 1969), Iowa Beef Packers, Inc v . N LR B, 331
F.2d 176, 185 (C.A. 8, 1964), N.L R B v. Howard W Breithng and Robert L
Breithng, partners, d/b/a Breitling Brothers Construction Co, and/or Breitling
Brothers Construction, Inc, 378 F 2d 663, 664-665 (C.A. 10); Uniform Rental
Service, 161 NLRB 187, 190 (1966); Fort Smith Broadcasting Company, 146
liabilities . However, the parties were aware of my afore-
mentioned views respecting Girardot when they began
their settlement discussions 5
Also influencing my judgment in approving the settle-
ment was the fact that I was unable to satisfy fully the
requirements of the court 's remand . As indicated above, it
is fundamental law that not having heard the witnesses, I
could not reassess Girardot 's testimony in light of his
conviction . In my judgment , this ,would ultimately have
required that the case be reassigned to Judge Peterson for
such evaluation , perhaps after a second consideration of
the issue by the Board and the court . It appeared to me
that this prodigal anticipated expenditure of the resources
and time of the General Counsel , the Board, and the court
was a factor appropriately to be taken into consideration in
determining whether the proposed settlement served the
public interest.6
The General Counsel's Appeal and Board Order
On December 4, 1975, the Board received a telegraphic
appeal from the General Counsel stating, in part, as
follows:
Exception is taken to the Judge's ruling [approving the
settlement agreement ] because ( 1) it modifies a Board
order without the consent of the Board ; (2) it defies a
court order which was to take certain evidence and
report back by January 5, 1976; (3) it establishes an
abysmally record low for compliance with Board orders
to wit in Pennington's case , alone about fifty per cent,
far short of the amount any region is authorized to
accept; (4) the $86 .20 plea does not bar reinstatement
of Girardot and it should have been offered to him; (5)
it is unconscionable to trade off Pennington 's unques-
tioned claim for the benefit of Girardot. Because of
these facts , it is submitted the Judge erred and
permission to appeal is hereby requested and although
the undersigned would prefer time to more adequately
brief issue , if exigencies of Court order be deemed to
not allot such time , it is requested this request be
considered as undersigned brief and Judge's order
approving Settlement be set aside and he be directed to
issue supplemental decision in matter.
Because of Court's January 6, 1976 date for transmis-
sion of evidence taken and fact Board's decision
thereon cannot be realistically met unless Judge
promptly issues decision , undersigned further moves
that as interim relief, Judge be directed to continue to
prepare and issue decision , the Settlement Agreement
to the contrary notwithstanding , such decision to be
conditional on the Board disapproving Settlement.
NLRB 759, 760 (fn. 1), 776-767 (1964), Offner Electronics, 134 NLRB 1064,
1075-77 (1961); TA O'Donnell, 55 NLRB 828 (1944).
5 I did not attend during their deliberations , and I could speculate that
the Respondent agreed to disgorge $6,000 and that the Union and the
dischargees then agreed on the distribution of this sum
6 The unresolved credibility issues may affect even Pennington's
discharge.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 5, 1975, the Board issued the following
Order:
General Counsel's request for special permission to
appeal the Administrative Law Judge's ruling approv-
ing the Settlement Agreement is hereby granted and the
Administrative Law Judge is directed to reopen the
hearing for the taking of any further evidence necessary
and the issuance of a supplemental decision in
accordance with the Board's order of November 26,
1975.
As the Board did not have a copy of the settlement
agreement or the transcript of the reopened record of
December 2, 1975, I presume the Board's December 5
Order would not and therefore did not disapprove the
settlement on an ex parte claim alone but that it did grant
the General Counsel's alternative request for interim relief.
I also presume that the Board's December 5 direction to
reopen hearing for taking of further evidence has been
satisfied, as all such evidence was taken at the hearing on
December 2, 1975.
CONCLUSIONS OF LAW AND RECOMMENDATIONS
1. By reason of his conviction, Girardot has forfeited
entitlement to reinstatement and backpay.
2. By reason of Girardot's conviction and forfeiture of
reinstatement and upon consideration of all the other
circumstances of this case, the Umon did not represent a
majority of Respondent's unit employees on October 29,
1974, and a Gissel bargaining order is unwarranted and
inappropriate.
I am unable to comply further with the dictates of the
court's and the Board's remand insofar as they require a
reconsideration of other material issues affected by
Girardot's testimony in light of the latter's conviction.
Upon all the foregoing, I accordingly recommend that
the Board approve the settlement agreement of December
2, 1975. Should the Board reject the settlement, I
recommend that it modify, its Decision and Order in
accordance with the conclusions of law, stated above, and
that Administrative Law Judge Peterson be assigned this
case to reconsider, in the light of Girardot's conviction, all
other material findings based on Girardot's, testimony.
(Apart from evidence, of Girardot's conviction, no new
credibility questions were raised in the reopened record of
December 2, 1975.)