Buddy Schoellkopf Products, Inc.

794 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD Buddy Schoellkopf Products , Inc. and Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. Case 16-CA-2847 December 8,1967- DECISION AND ORDER By CHAIRMAN MCCULLOCH ANND MEMBERS FANNING AND ZAGORIA On August 21, 1967, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practice alleged in the com- plaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, Southwest Regional Joint Board, Amalgamated Clothing Work- ers of America, AFL-CIO, filed exceptions to the Decision and a supporting brief. The Respondent filed a brief in reply to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the complaint herein be, and it hereby is, dismissed in its entirety. ' Exceptions were filed to the Trial Examiner's credibility findings. The Board does not overrule a Trial Examiner 's resolutions as to credibility except where the clear preponderance of all the relevant evidence con- vinces us that the Trial Examiner 's resolutions were incorrect. No such conclusion is warranted in this case We therefore adopt the Trial Ex- aminer's credibility findings , and his findings of facts based thereon. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). 1967, pursuant to due notice. The complaint, which was issued on April 17, 1967, on a charge filed November 22, 1966,1 alleged in substance that Respondent engaged in an unfair labor practice proscribed by Section 8(a)(3) and (1) of the Act by constructively discharging Neva Nell Pope, an employee, because of her union activities. Respondent's answer denied the alleged unfair labor practice. The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a Texas corporation with its principal of- fice and plant in Mineola, Texas, where it is engaged in the manufacture and sale of sports goods and sportswear. During the past year it sold and shipped more than $50,000 worth of products directly to points outside the State of Texas. Respondent admits and I find that it is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO (hereinafter called the Union), is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Mrs. Neva Nell Pope was employed in Respondent's sleeping bag department for approximately 7 years. Dur- ing the last 2 years she was the leadwoman, assistant to Mrs. Ruby Baldwin, the supervisor, or forelady, of the sleeping bag department. In November 1965 Pope was made a member of the Union's negotiating committee. She attended all bargaining meetings between Respond- ent and the Union until her resignation. At the bargain- ing sessions of March 17 and 29, Respondent informed the Union and Pope that her position as leadwoman was being abolished for economic reasons, suggested her transfer to any other available position, and offered the job of inserting zippers in the sleeping bag department as the best job available. On or about May 2, Respondent transferred Pope to the insert zipper job. On or about May 28 Pope quit her employment because of physical difficulties encountered in connection with that job. The single issue framed by the pleadings is whether Respondent constructively discharged Pope, because of her union membership and activities, by transferring her to a position which was so physically difficult and onerous as to cause her to quit. There are no allegations of independent violations of Section 8(a)(1) of the Act.2 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard at Tyler, Texas, on May 17, All dates hereinafter refer to 1966 unless otherwise indicated. z Pursuant to motion, official notice was taken of the Board's Decision (164 NLRB 660) in a prior proceeding between the same parties, in- volving Respondent's main plant at Dallas as well as the Mineola plant, in which the Board found Respondent engaged in interference, restraint, and coercion and discrimination. 168NLRB^,.. 104 BUDDY SCHOELLKOPF PRODUCTS, INC. B. Chronology of Events Respondent's Mineola plant is a sewing factory. Pope was continuously employed in Respondent's sleeping bag department since March 1959. She held various operator jobs, including the bar tacking machine, the cutting table, the loader, and the joining machine. For approximately 2 years prior to her transfer May 2, Pope was employed as Baldwin's assistant, or leadwoman, in the sleeping bag de- partment. Baldwin admittedly was the supervisor of that department. Although Respondent did not allege or con- tend that Pope was a supervisor, and the General Coun- sel and the Union concede that Pope was an employee and not a supervisor within the meaning of the Act, the subject matter of her duties and status as an employee or supervisor was thoroughly litigated. As leadwoman and Baldwin's assistant Pope assisted Baldwin in scheduling and maintaining production on the sleeping bag line. Pope's duties were primarily clerical, plus the transmis- sion of routine instructions, all under Baldwin's supervi- sion and direction. Pope received no increase in pay when appointed Baldwin's assistant. Pope had no authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, discipline, responsibly direct, or adjust the grievances of, any employees, or effectively recom- mend such action. The record clearly establishes that Pope was an employee and not a supervisor within the meaning of the Act. Pope joined the Union in August 1965 during its or- ganizational campaign. She voted unchallenged in the election October 22 which the Union won. On November 4 Pope was elected to the Union's negotiating committee. Negotiation meetings were held between the Union and Respondent on November 5 and 12, 1965, January 25, February 7 and 9, and March 2, 3, 16, 17, and 29. Pope attended each of these. At several of the negotiation meetings prior to March 17 Respondent was represented by Mr. Dunlap, a predecessor to its present counsel, Mr. Lyne. At several of these meetings Dunlap questioned or objected to the presence of Pope as a member of the Union's negotiating committee, apparently contending that as a leadwoman she was a supervisor within the meaning of the Act. There was no reply to or disposition of his contentions. At the negotiation meetings of March 17 and 29, at which Lyne replaced Dunlap and represented Respondent, Respondent con- ceded that Pope was an employee and not a supervisor within the meaning of the Act. The pertinent portions of the minutes of the March 17 and 29 meeting were stipu- lated. In addition to its sleeping bag line Respondent also operated pants, jacket, and hunting cap lines. In early March, because of the loss of contracts and lack of de- mand, Respondent decided to discontinue its hunting cap line. Modine Rohus was the supervisor of that line. All of the employees were transferred to other operations. Because the work of the sleeping bag line had grown ex- tensively, the number of employees had increased ap- proximately 20, and the work was too much for Baldwin, Respondent decided to transfer Rohus to the sleeping bag department and divide the operation into two lines, one under the supervision of Baldwin and the other under the supervision of Rohus. Rohus, an experienced operator 795 and supervisor for many years, was not specifically ex- perienced in the sleeping bag operation. Respondent transferred Rohus to the sleeping bag department on March 14. At that time Respondent had no other vacancy in a supervisory position.3 About a month prior, Respond- ent had divided its pants and jacket line into two lines and appointed an employee with 10 years' experience as the supervisor of the pants line. As a result of the division of the sleeping bag depart- ment into two lines and the appointment of a second su- pervisor, Respondent no longer needed the services of a leadwoman in the sleeping bag department and hence de- cided to abolish that position. At the negotiation meeting on March 17, Respondent advised the Union and Pope, who was present as a member of the negotiating commit- tee, of Respondent's decision to abolish her position of leadwoman and the economic reasons therefor, including the elimination of the cap line and the transfer of Rohus to the sleeping bag department as a second supervisor. Respondent advised the Union that as a result Respond- ent was in the position of either letting Pope go or find- ing a new place for her, and that it wanted to work out a new job for her. Respondent further advised the Union that although Rohus had already been transferred, the position of leadwoman would be maintained temporarily until Rohus became familiar with the operation. There was no further discussion of the matter at that meeting. At the next negotiation meeting on March 29, Lyne again brought up the abolishment of Pope's position, the reasons therefor, and Respondent's proposal that she be transferred to another job. Respondent stated that it was willing to discuss any available job and was offering Pope the job of inserting zippers because in Respondent's opinion that was the best job available. Respondent pointed out that the job offered Pope was one of the best paying jobs in the plant and offered to give her a 120-day breaking-in period. The Union asked if any steps would be taken to protect Pope's pay rate. Respondent replied that Pope's rate would be protected for 90 days although the Union had only requested 30 days. The Union said that it wanted time to think the matter over. Lyne advised the Union that Respondent was not pressing but wanted to make its change by the end of the week and again stated that Respondent was willing to discuss any availa- ble job in the plant. Pope of course was familiar with the requisites of the job of inserting zippers in the sleeping bag department, inasmuch as she had worked in that de- partment for approximately 7 years. Pope was not in fact transferred to the new job of inserting zippers until on or about May 2. Pope, in addition to performing her regular job of assisting Baldwin, spent much of the intervening time instructing Rohus in her new duties. The stipulated minutes of the meeting of March 29 establish that the Union and Pope did not object to the proposed transfer and did not discuss the possibility of Pope's transfer to any other job, although Respondent was willing to discuss any available job. Although Respondent requested the Union to reach a decision on the matter by the end of the week, and in fact did not transfer Pope until more than a month later, the Union never objected to the transfer or requested any other position for Pope. Contrary to such stipulated minutes, Pope testified that at that meeting she and Mr. Lampert, 3 Throughout these findings, where the testimony is in conflict, I credit Baldwin and Chandler, and do not credit Pope. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's attorney, asked Respondent to transfer Pope to either the job of making hulls or the joining machine in- stead of the job of inserting zippers. Her testimony was not corroborated and I do not credit it. Pope also testified that on March 29 shortly after the meeting she asked Baldwin to transfer to the hull-making job. A few days previously Baldwin had told Pope that job would become a full-time job although it had previ- ously been a part-time job. Baldwin denied that Pope made such a request at that time. Baldwin, whom I credit, testified that on March 29 after the meeting Pope told Baldwin what had occurred and asked her if Pope was to start working on the job of inserting zippers that day or the next day. Baldwin replied that that was the first she had heard of it and that she would check. Later the same day Baldwin informed Pope that for the time being she should continue to work as the leadwoman until further notice . Baldwin further testified that shortly before Pope was transferred to the job of inserting zippers on May 2, Pope asked if she could have the job of sewing hulls in- stead. Baldwin replied that she understood that the transfer had been discussed at the negotiation meeting and that the matter was settled. According to Pope, when she asked Baldwin if Pope could transfer to the job of making hulls Baldwin checked with Delbert Chandler, Respondent's executive vice president, who replied that anyone could perform the job of making hulls, which reply Baldwin relayed to Pope. This seems entirely probable, inasmuch as the record establishes that the job of making hulls was regularly assigned by Respondent to new or inexperienced operators and did not require the services of an operator of Pope 's skill and experience. Baldwin recalled that she had advised Chandler and Dar- rell Hosea, Respondent's plant manager, of Pope's belated request to be assigned the job of making hulls. Under either version of Baldwin's reply it is clear that neither Pope nor the U nion for more than a month prior to Pope's actual transfer to the job of inserting zippers requested Respondent to transfer Pope to any other position in reply to its suggestions and offer at the meeting of March 29. On Monday, May 2, having received no reply from the Union, Respondent transferred Pope to the job of insert- ing zippers in the sleeping bag line. The record establishes that the job was physically difficult and often caused physical discomfort to employees when they began to perform the operation. It required the expenditure of con- siderable physical effort and the use of muscles not nor- mally used in the other sewing operations . The sleeping bags weighed from 3 to 5 pounds and some measured 90 by 90 inches. The operator was required during the course of the operation to lift and handle these bags re- peatedly. However, the record also establishes that the job paid the 'operators considerably higher than regular rates, on the average in excess of $2 an hour after the operator became experienced and was able to exceed the quota, because compensation was based on a piece rate. Respondent's regular rate was $1.25 an hour. Pope's rate was $1.35 an hour. Many operators requested transfers to the job because of its higher rate of pay. Many opera- tors who were transferred to the job voluntarily quit after some time on it because of their inability to perform the job without difficulty and physical discomfort. After a few days on the job Pope's hands started swelling and causing her pain and discomfort to the extent that she had difficulty sleeping at night. Her experience of stiffness, soreness, and hand swelling was not unusual for opera- tors new on the job. Pope did not consult a doctor about this condition and was never advised that she should discontinue her employment for reasons of health. Pope reached the conclusion that she could not do the job physically. She continued on the job until she quit on or about May 28. Pope testified that about 2 weeks after she started on the job and her hands had become very swollen she asked Baldwin for a transfer to something else. According to Pope, Baldwin replied that she would check but never re- ported back to Pope. Pope also testified that approxi- mately a week later she again asked Baldwin for a transfer, this time specifically to the job of making hulls. According to Pope, Baldwin asked Hosea and informed Pope that he would think about it . Baldwin, whom I credit, admitted that Pope experienced some physical dif- ficulty with the job but denied that Pope ever asked for a transfer to any other position after she had been trans- ferred to the job of inserting zippers. The record establishes that Baldwin was both friendly and sym- pathetic to Pope. Both testified that they sat together at Pope's machine and cried when Pope complained that she couldn't do the job because of her physical difficulties. On or about May 23, Pope gave Rohus, her supervisor, notice that Pope was quitting as of May 28 because she could not physically perform the job. Rohus later in- formed Baldwin and Baldwin discussed it with Pope, which was the occasion when they sat at Pope's machine and cried together. After Rohus informed Hosea of Pope's notice of quitting , Hosea checked with Pope who confirmed the fact. At the time of her announced inten- tion to quit, Pope did not request Rohus, Baldwin, or Hosea to transfer her to any other position. Although Respondent had offered to discuss any available job, and the record establishes that throughout the period in question numerous operators' jobs were available, as evidenced by Respondent's active solicitation of ex- perienced and inexperienced operators , the Union or Pope never requested Pope's transfer to any other posi- tion, other than Pope's belated request , a few days before her transfer to the zipper insert job , for the job of making hulls, which did not require the services of an ex- perienced operator. C. Discrimination in Hire or Tenure, Terms, or Condi- tions of Employment The General Counsel contends that Respondent dis- criminatorily transferred Pope to an onerous and difficult position because of her union membership and activities, with the intent and purpose of causing her to quit , thereby constructively discharging her in violation of the Act. As previously noted , there are no other alleged violations, in- cluding independent violations of Section 8(a)(1) of the Act. The record establishes , and Respondent concedes, full knowledge of Pope's union membership and activities from the time she was appointed a member of the Union's negotiating committee in November 1965, including her attendance at each of the negotiating meetings. The record also establishes that the job of inserting zippers was physically difficult and frequently resulted in physi- cal discomfort. On the other hand, numerous operators sought the job because of its high rate of pay and thereafter many of them voluntarily quit because of its physical difficulties. The record clearly establishes Respondent's valid economic reasons for transferring Pope. Because of the loss of contracts and lack of de- BUDDY SCHOELLKOPF PRODUCTS, INC. 797 mand, Respondent was compelled to discontinue its hunt- ing cap line. As a result the supervisor of that line had to be transferred to another position. At the same time, because of the substantial increase of work in the sleeping bag department , Baldwin was unable to handle the ex- panded work load. As a result of both factors, Respond- ent decided to divide that department into two lines, each to be supervised, and transfer the cap line supervisor to the sleeping bag department. This eliminated the need for the position of leadwoman, or Baldwin's assistant. Instead of arbitrarily terminating or transferring Pope without consulting her or the Union, as Respondent had both the right and reason to do under its management prerogatives and the existing economic conditions, Respondent notified the Union of its reasons and its desire to transfer Pope, offered to consider any available job, and proposed her transfer to the job of inserting zip- pers as the best job available. In the light of Pope's ex- perience, Respondent reasonably considered that she would be able to fill the job. Respondent additionally of- fered to give Pope a 120-day breaking-in period and to protect her rate, $1.35 an hour, for 90 days, although the guaranteed rate paid other operators on the same job was $1.25 an hour unless they exceeded the quota. Although more than a month expired between these offers of Respondent and its actual transfer of Pope, Respondent heard nothing from the Union concerning any other available position or any objections to the proposed transfer. Under the circumstances it seems clear, and I find, that Respondent's transfer of Pope was not motivated by a desire or purpose to get rid of her, because of her union membership or activities, by causing her to quit. Contradicting Pope, Baldwin, whom I credited, testified that Pope never requested a transfer to another job after her transfer to the job of inserting zippers. In substance this was corroborated by Pope's admission at the hearing herein. Pope admitted that at the time she quit she was not seeking and would not accept any job in a sewing factory. Of course every available job in Respond- ent's plant was a job in a sewing factory. A preponderance of the reliable, probative, and sub- stantial evidence in the entire record convinces me, and I find, that the General Counsel has failed to sustain his burden of proving that Respondent transferred Pope to the job of inserting zippers because of her union activities or membership to cause or induce her to quit her employ- ment, thereby constructively discharging her in violation of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. Respondent has not , as alleged in the complaint, discriminated against its employee within the meaning of Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section -10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed.