Newly Weds Foods, Inc.

National Labor Relations Board - Board DecisionsApr 25, 1990

298 N.L.R.B. 298 (N.L.R.B. 1990)

298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Newly Weds Foods, Inc. and Production Workers Union of Chicago & Vicinity , Local 707. Case 13-CA-28600 On the entire record, including my observation of the demeanor of the witnesses, and after considering oral ar- gument, I make the following April 25, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 6, 1989, Administrative Law Judge Joel A. Harmatz issued the attached deci- sion. The Charging Party filed exceptions. 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 has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order.' ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 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 the findings Sandra Tyra, Esq. and Jeff Wolf Esq., for the General Counsel. Fredric H. Fischer, Esq. and Kathryn M. Hartrick, Esq. (Seyfarth, Shaw, Fairweather & Geraldson), of Chicago, Illinois , for the Respondent. Phil Cappitelli, of Chicago, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This case was tried in Chicago, Illinois, on November 13, 1989, upon an unfair labor practice charge filed on May 2, 1989,' and a complaint issued on June 21, 1989, which as amended alleges that the Respondent violated Section 8(a)(2) and (1) of the Act when a supervisor solicited and distributed authorization cards on behalf of the Chicago Truck Drivers, Helpers, and Warehouse Workers Union. In its duly filed answer, the Respondent denied that any unfair labor practices were committed. Briefs were waived by the parties, but the General Counsel and Re- spondent presented their respective positions orally prior to close of the hearing. 1 All dates refer to 1989, unless otherwise indicated. FINDINGS OF FACT 1. JURISDICTION The Respondent, a corporation, is engaged in the man- ufacture of food coatings , English muffins , ice cream cake roll, and related products from its facility in Chica- go, Illinois . In the course thereof, the Respondent, during 1988 , purchased and received at that facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Illinois. The Respondent admits and I find that it is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that Production Workers Union of Chicago & Vicinity, Local 707 (Local 707), and Chicago Truck Drivers, Helpers, and Warehouse Workers Union (Independent) (the Independent), are labor organizations within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES This case arises from a representational dispute be- tween two labor organizations which have represented segments of the Respondent's work force for many years. Thus, Local 707 has represented the production workers, now numbering 180 employees for about 30 years. The Independent has represented a unit of two or three truckdrivers for at least as long. On June 24, the most recent collective-bargaining agreement between the Respondent and Local 707 was scheduled to expire. Earlier that spring, the Independent launched an organization campaign in Local 707's pro- duction and maintenance unit. On April 24, the Inde- pendent filed a timely petition in Case 13-RC-17737 in furtherance of its representational interest in that unit. The showing of interest furnished to the Board in sup- port of the petition was in the form of signed authoriza- tion cards. This complaint alleges that the Respondent, through Production Superintendent Sylvestre Cahue, overstepped legitimate bounds of neutrality and violated Section 8(a)(2) by assisting the Independent's effort to secure this card showing.2 The issue turns on credibility. Cahue 2 This proceeding, irrespective of outcome, will not preclude an elec- tion on the Independent's petition. Thus, as explained by counsel, the Re- gional Director has determined that the card showing accompanying the petition was untainted. This view was based on the absence of evidence linking supervisory conduct with identifiable card signers, thus, impelling administrative determination that the showing of interest was sufficient to give rise to a question concerning representation However, while an election is anticipated in the future , under the Board 's blocking rules, it will not be held until the instant unfair labor practice proceeding is con- cluded. It is of no small interest that in the interim between the filing of the petition and the instant hearing, the Respondent and Charging Party Local 707 executed a new collective-bargaining agreement, having an ef- fective term from June 25, 1989, through June 24, 1992. Obviously, the viability of that contract will depend on the results of the election. 298 NLRB No. 40 NEWLY WEDS FOODS 299 flatly denies any involvement. The General Counsel has produced two witnesses, both of whom identify him in connection with two distinct incidents, in which they separately were given cards and asked to sign. First, Rene Chavez, one of three Local 707 shop stew- ards, testified that on or about April 17 he observed Cahue in the parking lot between 1 and 3 p.m.3 Chavez, who was assigned to the second shift, and was reporting for work, asserts that Cahue, in the presence of Francis- co and Jorge Cahue, was distributing the "white cards," which presumably designated the Independent as em- ployee representative.4 Chavez claims that Cahue gave him such a card, an told him that if he wanted to change unions he should sign and return the card. Chavez testi- fied that about 13 second-shift employees were reporting for work and in the area at the time that he observed Cahue give one a card, and that "the rest of them al- ready had them." Chavez could not identify these indi- viduals, claiming that he could not see their faces. Second, Ambrosio' Ramos, a first-shift employee, and leadman, relates that on April 17 or 19, while in Cahue's office, Cahue gave him an authorization card (G.C. Exh. 2) on behalf of the Independent, and explained that this Union was better than the one he had, while asking if Ramon wanted to change. Ramos states that he respond- ed, "that was fine." He claims to have observed a stack of cards on Cahue's desk which was 1-1/2 to 2 inches thick. Ramos, who avers that he often uses the computer in Cahue's office, and frequently sees him there, testified that this was the only occasion on which he observed cards in the possession of Cahue. He states that he did not discuss the matter with any one until 2 weeks later. I prefer Cahue. The record includes no suggestion that he would have any sympathy, one way or the other, for either of these rival unions. He denied ever even seeing a card during the timeframe involved or ever having heard of the officials who waged the campaign on behalf of the Independent. At the same time, the testimony offered in support of the complaint was not so persuasive to arouse concern for these denials. Unquestionably, the overt conduct in the parking lot depicted by Chavez, and the large stack of cards described by Ramos implicates Cahue in open and potentially widespread conduct on behalf of the In- dependent. Yet, no one else from this unit of 180 em- ployees was called to relate any similar experience, or to establish a link between Cahue and actual card signers.5 Moreover, Chavez enjoyed 3 years' service as Local 707's steward on the second shift. In this capacity, Chavez dealt with Cahue on grievances, thus, raising the question of whether the latter would have thrown cau- tion to the wind by soliciting Chavez on behalf of a rival union. Chavez was further compromised by a major incon- sistency between his testimony and prehearing affidavit dated May 2.6 Thus, he found it necessary to recant on the assertion in his first affidavit that he "did see some people sign the cards and return them to Sylvestre Cahue," an important facet of the incident, which at the hearing he described as a "mistake." In that document, Chavez named only one employee as both within that group and as having signed a card at that time.7 That in- dividual, Louis Fernandez, was called by the Respond- ent. He flatly contradicted Chavez, and his first-shift work hours reduce the likelihood that he would have been in the parking lot when Chavez was reporting for work. As for the others supposedly present, Chavez ex- plains that it was not that he did not know them, but that, "They were very far away from me to be able to recognize who they were by their faces." This stood in contrast with Chavez' sworn testimony that he was in a position to observe that these same employees had cards "in their hands." In short, Chavez was not a credible witness. While I have less reason to doubt Ramos, based on observation, he did not inspire my confidence. In ad- dition, his literacy in English was limited, and I share the Respondent's concern that he was capable of identifying just what it was, if anything, that might have been stacked on Cahue's desk. It is also possible that Ramos' testimony might have been inspired by a grudging belief that Cahue, in September 1989, had terminated him, and aso by the'fact that Cahue had prodded him concerning lagging productivity. In the total circumstances, based on personal observa- tion of all the witnesses, Cahue was not only the most persuasive, but his denials struck as the more probable. 8 Because I credit him over Chavez and Ramos, it is con- cluded that the proscribed assistance spelled out in the complaint did not occur, and hence the complaint shall be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 3 The Respondent operates on a three-shift basis. Although there are overlaps, the shifts run 7 a in. to 3 p in., 3 to 11 p.m., and 11 p.m. to 7 a.m. There are 70 employees on the first shift and 60 on the second. It is fair to ' mfer that a substantial number of workers would be passing through the parking lot on their way to work during the interval de- scribed by Chavez. It is noted, however, that Chavez' work shift begins and ends an hour earlier than the standard second shift. It would have been unusual, therefore, for him to have been in the parking lot after 2 pm 4 Chavez describes the card as identical to one mailed to his home within a week of the parking lot incident. 5 At the hearing, the parties stipulated that during investigation of the underlying charge in this case, the Respondent furnished the Region a listing of employees then employed in the production and maintenance unit, complete with shift, addresses, and telephone numbers 8 Chavez executed affidavits dated May 2 and 8, which are in evidence as R. Exits. 1(a) and (b). 7 Jorge Cahue and Francisco Cahue were added in the second affidavit dated May 8. 8 In so concluding , I am not unmindful that the Respondent neglected to call Francisco Cahue and Jorge Cahue, who were identified by Chavez as Sylvestre Cahue's cousins. In this regard, there is no indication on the record as to the availability of these individuals at the time of the hearing, nor does it appear that they were subject to the Respondent's control In any event, the General Counsel was well aware of their al- leged presence through R. Exh. 1(b), yet elected to allow its affirmative case to stand on the testimony of Chavez and Ramos In these circum- stances, the absence of Francisco and Jorge Cahue did not engender sus- picion strong enough to overcome my disbelief of Chavez and Ramos. 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The Independent and Local 707 are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. The Respondent did not engage in the unlawful as- sistance specified in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The complaint is dismissed. 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the poses.