Jays Foods, Inc. v. N.L.R.B.
| Citation | 573 F.2d 438 |
| Decision Date | 06 April 1978 |
| Docket Number | No. 77-1326,77-1326 |
| Parties | 97 L.R.R.M. (BNA) 3155, 83 Lab.Cas. P 10,445 JAYS FOODS, INC. and Nielsen Brothers Cartage Co., Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Bernard M. Kaplan, Skokie, Ill., for petitioners.
Elliott Moore, Deputy Assoc. Gen. Counsel, Howard E. Perlstein, Susan Tepper Papadopoulos, Attys., N. L. R. B., Washington, D. C., for respondent.
Before SPRECHER, Circuit Judge, COWEN, * Senior Judge and WOOD, Circuit Judge.
Petitioner, Jays Foods, Inc. (hereinafter Jays), asks this court to review and set aside an order of the National Labor Relations Board disposing of two consolidated cases heard before the Board. The question before us is whether substantial evidence on the record as a whole supports the Board's findings that Jays violated the National Labor Relations Act sections 8(a)(1) and (3), 29 U.S.C. sections 158(a)(1) and (3) (1970). 1
We find this a close and difficult case in which there is a great deal of conflicting evidence on many of the crucial questions. If we were deciding the case de novo, we might very well have made findings and conclusions contrary to some of the Board's determinations. However, we adhere to the limited scope of our review, and after reviewing the 1326-page record, we have concluded that the Board's findings regarding Jays' violations of the Act are supported by substantial evidence. Nevertheless, we find that the remedy provided by the Board in one case, 13CA-13889, is contrary to the recommended decision of the Administrative Law Judge and is not warranted by the record before us. Therefore, we hold the Board's order in this aspect to be an abuse of discretion and modify it to conform to the recommendations made by the Administrative Law Judge.
The following is a statement of the facts to the extent deemed necessary for decision. The statement adheres to the Board's findings, which adopted those made by the Administrative Law Judge after he had sifted and weighed the voluminous and conflicting evidence presented during the 8 days of hearings before him.
Jays is an Illinois corporation which produces and packages snack foods in Chicago. The company asserts it is the largest independent snack food producer in the United States, with annual gross sales in excess of $30 million. In the fall of 1975 Jays employed 26 tractor-trailer drivers, who delivered Jays' products from its production plant in Chicago to its distribution centers (hereinafter branches) in the Chicago area and to independent distributors in four states. Jays has a much larger group of employees, called route salesmen, who deliver and sell Jays' products from its branches in the Chicago area to retail stores in the area.
Until December 1, 1975, when he was discharged, Edward Olson was one of the route salesmen. At the time of his discharge, Olson had worked for Jays for over 20 years, and at his branch, the West Branch, he stood first in seniority among 24 salesmen. Earlier in 1975, Olson had become concerned that Jays' route salesmen were not represented by a union. On his own, he contacted the Retail Clerks Union in an effort to have that union organize Jays' route salesmen. At the union's request, he openly distributed union authorization cards among the other 23 route salesmen at the West Branch, and successfully solicited 19 signatures. He also persuaded a number of his fellow salesmen to attend a dinner meeting with union representatives. Jays' West Branch supervisor, William Brand, was aware of this meeting. At the election conducted by the N.L.R.B. on October 2, 1975, the union lost. Olson served as the union observer of the election for the West Branch.
Immediately following that October 2 election, Jays' company president, Leonard Japp, Sr., approached Olson, extended his hand, and in an unfriendly, insincere tone said, "Thanks a lot, Ed." Then, for a period of time during November 1975, Jays' executive vice-president, Silas Marttila, ordered the newly appointed West Branch Assistant Manager, Donald Skafgaard, to follow Olson on his route because Olson was pro-union and because his sales were down. On Monday, December 1, 1975, after Olson had apparently disregarded one of his sales duties the previous Friday, the day after Thanksgiving, he was fired. Olson had not previously been warned, disciplined, or suspended for a similar neglect of his duties. In fact, there was no evidence Olson had ever disregarded such duties in his previous 20 years of employment with Jays. Jays alleges that Olson was fired for the following reasons:
Very poor sales, lowest in West Branch. Caused by least amount of on-job sales time, 4 days only week of 11/29/75. He allowed two accounts, one Jewel and one National, to be out of stock on Jays items for the week-end 11/29 & 11/30 due to no-sale by him 11/28/75.
No arrangements made by E. Olson for delivery of product on Saturday 11/29/75. He knowingly permitted and approved out of stock for Customers & resultant loss of sales to Customers & Jays when he checked out for the week 11/29/75 disregarding opportunity available for completing his Route Sales on 11/29/75, increasing his sales commissions and satisfying Jays Customers. (Petitioner's app. 65-66.)
The Board adopted findings with respect to Olson's negligent performance on the 1975 Thanksgiving weekend that:
* * * the discharge of a new employee might not be noteworthy, although the record indicates that the discharge of (route) salesmen by Jays is not frequent. However, the discharge of a salesman with over 20 years seniority who apparently had never done anything like this before requires closer consideration. * * * (Petitioner's app. 69-70.)
After closer consideration, the Board noted that while Olson's dollar volume of sales had been consistently in the lower half among the salesmen at the West Branch, his sales were not consistently lowest, as Jays alleged. The Board also found that Olson's route was smaller in size and lower in sales potential than other more lucrative West Branch routes. This was borne out by the fact that Olson's replacement continued to have low rankings among the West Branch salesmen after Olson's discharge. Finally, as to the incident, which allegedly precipitated Olson's firing, the Thanksgiving weekend non-delivery, the Board found that although Olson in fact had failed to service the Jewel store, he was not allowed to service the store because he arrived there 10 to 20 minutes after Jewel's receiving hours on Friday. Moreover, when Mr. Brand, the West Branch supervisor, had been apprised of the non-delivery by Olson when he checked out for the week that afternoon, Brand did not remind Olson to service the Jewel store on Saturday. As to the National store, Olson testified that he had checked the stock at that store; that the shelves had a supply of 3 dozen Jays' snack items, and that the manager at that store would not, as a regular policy, permit additional Jays' stock to be placed in the store's backroom. On the whole, the Board concluded that "Olson was discharged for his union activities and the reasons advanced by Jays are pretexts." (Petitioner's app. 71.)
During the late summer and early fall of 1975 some of Jays' tractor-trailer drivers (hereinafter truckdrivers) became convinced that Jays' management was not acting in good faith regarding an agreement previously made between management and the truckdrivers. Because of Jays' claimed short-term financial difficulties, it was agreed that Jays could defer until January 1, 1976, a wage increase which the management originally promised to grant on July 1, 1975. During September, one driver, Richard McCormick, contacted the Teamsters' Union to discuss the possibility that the Teamsters might organize Jays' truckdrivers. Six of the truckdrivers met with agents of the Teamsters on September 26 at the Teamsters' hall. At that time, the six signed authorization cards and scheduled a meeting for Saturday, October 4, between the Teamsters and as many of the other 26 truckdrivers as the six could convince to attend. During the following week, while at work, the six truckdrivers tried to persuade their fellows to attend the October 4 meeting.
On Friday evening, October 3, Jays' executive vice-president, Marttila, called a special meeting of the truckdrivers. He announced that the financial condition of Jays had improved and that the company would make the deferred raise effective immediately instead of waiting until January 1, 1976. He added, however, that he had heard "a few" of the "fellows have contacted a union," and if he knew who these truckdrivers were, he would not give them the raise, but since he did not know, he would have to give the raise to everyone. He also told them if they wanted a union, they should return to the union which had previously represented them and which they had since rejected. He finished with the statement that "you fellows aren't loyal to anyone but yourselves." (Petitioner's app. 38-39.)
Shortly after this meeting with Marttila, company president Japp met truckdrivers Davis and Dietz in the company dispatch office where he inquired whether they intended to attend the meeting the next day. They gave noncommittal replies, to which he responded that if the truckdrivers signed cards to bring in the union he would "close the doors."
On a number of occasions during September, October, and November 1975, John Staton, who supervises Jays' loading dock employees, asked various truckdrivers if they had contacted a union. The truckdrivers consistently responded in the negative. Staton also inquired why they wanted a union, to which there was either no response or a noncommittal one. On at least two occasions he added that if the...
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