Conwood Corp.

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conwood Corporation and Tobacco Workers Inter- national Union, AFL-CIO-CLC. Case 26-CA-2968 November 7, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On May 23, 1968, Trial Examiner William F. Schamikow issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the' complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the' National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The National Labor Relations 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 excep- tions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations. activities or concerted activities for the purpose of collective bargaining or other mutual aid or protection.' Pursuant to notice, a hearing was held at Memphis, Tennessee, on March 23 and 24, 1968, before me. The General Counsel and the Respondent appeared by counsel and the Union by its representative and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence upon the issues in the case. Since the hearing briefs have been received from the General Counsel and from counsel for the Respondent and have been duly considered.2 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Conwood Corporation, is a New Jersey corporation engaged in the business of the manufacture and wholesale distribution of snuff, at a plant in Memphis, Tennessee. During the 12 months preceding the issuance of the complaint, the Respondent, in the course of its business operations, purchased and received at its Memphis, Tennessee, plant goods and materials of a value of more than $50,000 directly from points outside the State of Tennessee. During the same 12 months, the Respondent sold and shipped from its Memphis, Tennessee plant, goods and materials of a value of $50,000 directly to points outside the State of Tennessee. I conclude and find that the Respondent is, and has been, an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to entertain jurisdiction in the present case. II. THE LABOR ORGANIZATION INVOLVED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The com- plaint alleges, but the answer of the Respondent denies, that the Respondent committed unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151 et seq. (herein called the Act), by discharging James Earl Beecham on or about January 8, 1968, and thereafter failing and refusing to reinstate him, because he joined or assisted the Union or engaged in other union Tobacco Workers International Union, AFL-CIO-CLC (herein called the Union) is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The General Issue: Was Beecham's Discharge for Cause or for Concerted or Union Activity? James Earl Beecham, generally called Earl Beecham, was employed by the Respondent at its Memphis plant for 15 years beginning on December 16, 1952. During all but the first year of his employment, he worked as a machine operator in the tin can department under Foreman John Johnson. On January 8, 1968, Personnel Director John Miller, accompanied by Foreman Johnson, discharged Beecham by paying him the wages due him and handing him a "separation notice," signed by the Respondent's managing director, John Overton, in the form required by the Tennessee Unemployment Compensation Act. The reason given for the discharge in this notice was, "Constant complaining. Work had become unsatisfactory." According to the testimony given by the Respondent's supervisors, which will be discussed in detail below, Beecham's ' The unfair labor practice charge in the case was filed by the Union 2 Since the hearing, the General Counsel has served upon Counsel for and served on the Respondent on January 9, 1968 . The complaint was the Respondent , and submitted to me, a motion to make three issued by the Regional Director and served on the Respondent on corrections of language in the transcript of the hearing . No objection February 6, 1968. having been made, the motion is granted. 173 NLRB No. 94 CONWOOD CORP. 645 work had become unsatisfactory in that, during the last 6 months or so of his employment, he had been turning out defective cans on his machine, and his "constant complaining" referred to his unjustified complaints about his machine. A brief, preliminary description of Beecham's machine operation as an integral part of a continuous chain operation in the fabrication and packing of the cans used by the Respondent, will help to understand this testimony and the Respondent's general position. Beecham operated the only regularly used high speed machine that pressed and seamed bottoms on cylindrical 1'a-ounce tin shells as they came by conveyor from a body-making, vertically seaming machine on the second floor of the factory. From Beecham's machine, the cans were passed by the conveyor to the packing department two floors below, where a continuing series of conveyor-fed machines operated by women employees filled, capped, and labeled the cans. From the detailed evidence given by the witnesses, it appears that these fabricating, filling, capping, and labeling machines operated at high speed; that the machines and the cans passing into and through them required constant observation and attention from the operators; that, unless cans which were defectively shaped or fabricated at any stage of the continuing process were removed from the conveyor and possible machine malfunctions corrected by the operator or a plant mechanic at his request, the failure of the machine operator to take such action might cause a jam in, and require stoppage of the particular machine responsible for the defect or even a machine later in the chain; that such a resulting interruption of production was of importance not only to the Respondent but also to the machine operators who were paid a bonus for their metered production over a fixed daily "par" figure; and, finally, that since defective cans might pass through the counters of machines and entitle their operators to a production figure toward their bonuses, the failure of the lax operators to tend their machines properly might jam only the later machines in the chain and thus unfairly affect the bonus production figures of the later operators. Some idea of the speed of the fabricating, filling, capping, and labeling machines is furnished by the fact that, although the Respondent tightened its quality control of the process in August, 1967 and within a few weeks reduced the "par" bonus production figures for the operators (in Beecham's case from 120,000 to 112,000 per day), Beecham's production "on good days" still reached from 135,000 to 140,000 cans per day. The complaint alleges, and the General Counsel and the Union contend, that the Respondent actually discharged Beecham, not because of defective work and unjustified complaints about his machine, but because he had engaged in concerted employee-activities and in the Union's attempt to organize the Respondent's employees. With respect to Beecham's concerted employee-activity generally, the evidence does show that in August 1967 and before the Union began an attempt to organize the Respondent's employees, the Respon- dent reduced the "par" bonus production figures at the request of Beecham and two other machine operators, and that, although the other two operators voluntarily expressed their appreciation of the Respondent's compliance with their request, Beecham annoyed Production Manager Harwood by not answering when Harwood asked him how the reduced bonus figure was working out. The evidence also shows that when Union Representative John Kline began to organize the Respondent's employees in October 1967, he made two visits to Beecham's home; that, on each of these occasions, he saw only Beecham and the members of his family but no employee of the Respondent other than Beecham, that, so far as the record shows, Kline never did have direct contact with any of the Respondent's employees except Beecham; that on Kline's second visit to Beecham's home on or about November 1, 1967, Beecham signed a Union card, and that Beecham thereafter spoke to a number of fellow employees about joining the Union in the plant washroom and while walking down the factory aisle during work breaks, but was careful to avoid doing this in the presence of any of the supervisors and, in fact, had no reason to believe that the Respondent or the supervisors had observed him. Furthermore, until after Beecham was discharged on January 8, 1968 and the Union had filed its unfair labor practice charge, the Union made no approach to the Respondent nor did it engage in any specific acts directly or through any of the Respondent's employees, which it or the General Counsel claims might have come to the attention of the Respondent or its supervisors. Indeed, the Respondent's managerial and supervisory representatives all testified that the first information that they had that the Union might have been attempting to organize the employees or that any of the employees might have been engaging in such activity was furnished by a letter received by the Respondent on or about January 10, 1968, advising it that an unfair labor practice charge had been filed by the Union because of Beecham's discharge. Nevertheless, the General Counsel and the Union make several arguments that the evidence shows that the Respondent actually discharged Beecham, not only because of his engaging in the pre-Union concerted activity of getting the Respondent to reduce the "par" bonus production figures in August 1967, but also because of his later joining and supporting the Union. The first of these arguments is based upon the so-called "small plant" doctnne of Wiese Plow Welding Co., Inc., 123 NLRB 616, 618, to the effect that in a small employer-unit, an employer should be assumed to know when his employees are engaging in organizational activities.3 They contend that this doctrine has application in the present case because, although the Respondent employs about 250 employees in its Memphis plant, Beecham worked in the tin can department consisting of only about 15 employees under a separate departmental foreman, and it should therefore logically be assumed that the Respondent must have known of the Union's activity and Beecham's involvement. As'1 told the General Counsel during the hearing, I see no merit to this argument in the present case and reject it. The second argument which the General Counsel makes and which still must be considered , is based in part upon the testimony of one of the employees, Jefferson Gross, that, in a "birthday party meeting" with a group of employees in December 1967 but which Beecham did not attend, Personnel Director John Miller told them that the Respondent was not going to have a union because it did not want it "to be like it was the last time in the 40's."4 Two other employees denied 3See also Don Swart Trucking Co., Inc., 154 NLRB 1345. '4 The reference was apparently to a union organizational effort in 1949 and 1950 . Although unfair labor practice charges had been filed against the Respondent at that time , the Board dismissed the complaint against the Respondent . American Snuff Company, 109 NLRB 885. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Miller had made any such statement in December 1967, and Miller and Production Manager Harwood testified that they could not remember that anything at all was said about a union at this meeting, thus presenting a factual issue for decision. But, relying on employee Gross' testimony as to the December 1967 meeting, the General Counsel also argues in substance that the evidence shows such a summary, precipi- tate, and unwarranted discharge of Beecham, a long-term employee, that the manner and circumstances of the discharge and the incredibility of the reasons given by the Respondent therefor, not only strengthen Gross' testimony but taken in conjunction therewith, require a finding that the Respondent in some way knew of Beecham's Union activity and discharged him because of it. We may now turn to a consideration of the evidence as it bears upon these opposing positions of the parties concerning the actual reason for Beecham's discharge. B. The Evidence Concerning the Respondent's Asserted Grounds for Beecham's Discharge The Respondent began tightening its control over the quality of the cans turned out by its machines in the summer of 1967. Edwin Bennett, an assistant to the plant engineer, was then given new duties as "quality control man" and since that time has himself inspected the output of the machines with the assistance of Marvin Nelson, a young man newly hired in September, whom he began training as an inspector. Hazel McRight, who had been the Respondent's inspector in the department for 18 years, was transferred in September to a production job in the packing department but within a few weeks thereafter, on September 29, quit her job. Mrs. McRight testified that Foreman Johnson in telling her of her transfer, said that Quality Control Man Bennett was taking her place and that she was being transferred not because of "anything [she] had done" but because another girl was needed in the packing department. She also denied that anyone told her that her removal from the inspector's job was because defective cans were getting past her. Foreman Jones did not testify, as (as Production Manager Harwood testified) he had a serious operation in November 1967, and since the beginning of December has been able to work at the plant only part time. But I credit the testimony of Production Manager Harwood and of Managing Director Overton, and accordingly find, that Harwood transferred Mrs. McRight from her inspector's job because, after he had spoken to her about tightening her inspection and the situation had briefly improved, the number of defective cans again increased and resulted in complaints from Packing Foreman Wiseman and the girls operating the machines in his department. The Respondent's criticism of Beecham's work (as we shall see) embraces the period from the beginning of July 1967 until his discharge on January 8, 1968, and rests partly on Quality Control Man Bennett's testimony but principally upon the testimony of Production Manager Harwood and Personnel and Safety Director Miller who assert they reported their unfavor- able observations to Managing Director Overton, with their eventual recommendation that Beecham be discharged. To counter this criticism of Beecham's work during the last half of 1967, Mrs. McRight testified that, until she was transferred out of her inspector's job in the beginning of September 1967, Beecham "did good work" and was "one of the best" of Respondent's operators. And Marvin Nelson, the trainee-inspector between the end of September 1967 and the beginning of January 1968, testified that the quality of Beecham's work was as good or better than that of the other machine operators, that nothing was ever said to him about Beecham's work, and that Beecham never complained. But Beecham himself gave no testimony as to whether his work was defective or, if so, to what extent. He testified merely that he could not recall that Production Manager Harwood said anything to him about his work or its being defective (as Harwood testified he had); and that Johnson (his foreman) had never reprimanded him nor for that matter ever made any comment to him about his work, either complimentary or critical. The testimony of the Respondent's witnesses presents a different view of Beecham's work and attitude and the problem they posed. Quality Control Man Bennett's testimony was that from the time he took over inspection of the 1%a ounce cans in the summer of 1967, the quality was at first fair, then a bit better, and finally worse, and that most of the time the defects were in the seams at the bottoms of the cans. Personnel and Safety Director Miller testified that, in his concern about the safe operation of the Respondent's machines, he frequently observed Beecham's operation and the conditions in which Beecham ran his machine, that early in July 1967, he spoke to Beecham about the defective cans that littered his machine area and that Beecham complained because he said his machine was not operating properly; that Miller thereafter spoke to Beecham two or three times a week, that sometimes Beecham answered him but at other times he did not; that from September 1967 until a last occasion on January 4, 1968 (as to the most important of which incidents Miller took the precaution of putting roughly contem- poraneous memoranda in Beecham's personnel file), Beecham would say little if anything when Miller spoke to him and would "many times" be "sitting there gazing out the window, or looking at the ceiling.... paying no attention to his machine" while it was operating at high speed; and that Miller discussed this attitude "from a safety angle" with his superiors until, on January 5, 1968, the day following the last occasion, he recommended to Production Manager Harwood and Managing Director Overton that Beecham be discharged. Finally, Production Manager Harwood testified that after the initial tightening of quality controls in the summer of 1967, the number of defective cans fluctuated, with each increase bringing complaints from the packing department foreman and the packing department machine operators whose bonuses were affected; that there was a period before December 1967 under Quality Control Man Bennett, when there were no complaints, that the packing department's complaints resumed in the beginning of December and Harwood, on checking the cans and the machines, found that they were coming mostly from Beecham's machine; that, when he spoke to Beecham and showed him the bad bottoms on the cans, Beecham said he could not get his machine fixed; that later in December, Harwood saw bad cans at Beecham's machine station but when he showed them to Beecham, Beecham made no response; that on Friday, January 5, 1968, Harwood again saw defective cans at Beecham's machine, but noticed what "looked like tears coming out of [Beecham's] eyes" and therefore said nothing CONWOOD CORP. to him, and that Harwood then got Personnel Manager Miller and the two of them went to Managing Director Overton with whom they discussed Beecham's possible discharge. All three men testified that on January 5 Harwood and Miller recommended Beecham's discharge to Managing Di- rector Overton, who alone had the authority to discharge plant employees. According to Overton's testimony, he had already been told by Harwood of the packing department's complaints about the defective cans from Beecham's machine and of Beecham's constant complaints about his machine, and had already told Harwood "to do something about it." The three men further testified that on January 5 both Harwood and Miller supported their recommendations that Beecham be discharged, by telling Overton that the cans from Beecham's machine continued to be defective and they thought that there was something physically wrong with Beecham and that he was an "unsafe employee." At the conclusion of the discussion, Overton (according to his testimony) postponed his decision as to whether, in view of his long service, Beecham should be discharged, so that Overton could give the matter further consideration over the weekend. On Monday, January 8, the three men met again and, according to their testimony, Overton said he had decided to discharge Beecham, and he and Harwood formulated the reasons which were then inserted in the "separation notice" to be handed to Beecham. In accordance with the Respondent's usual practice in discharge cases, Personnel Director Miller, accompanied by Johnson as Beecham's foreman, gave the notice to Beecham that afternoon and paid him his wages in cash. C. The Evidence Concerning the Birthday Meeting of December 12, 1967 There remains for consideration the conflicting evidence as to what, if anything, Personnel Director Miller had said about a union to a group of employees at a so-called "birthday party meeting" attended by Miller , Production Manager Overton, and Personnel Manager Patrick on December 12, 1967. For several years, the Respondent had held such monthly meetings for employees who had birthdays in the current month, for the discussion of the employees' working conditions and benefits and to answer any questions that the employees might ask. The practice was interrupted in the spring of 1967 but resumed again in November and December 1967. The December meeting, as to which evidence was taken, occurred on December 12, 1967, and was attended by from 12 to 15 employees. Beecham did not attend this meeting. Miller and Overton were there, apparently throughout the meeting, but Patrick was there only part of the time. Employee Jefferson Gross testified that Personnel Director Miller talked to the employees about the fringe benefits provided by the Respondent for the employees, such as hospitalization and half-priced luncheons. He testified (as has been noted) that Miller also told the employees that the Respondent was not going to have a union because it "didn't want it to be like it was the last time in the 40's." But two of the other employees who attended the meeting (Billy Joe Winsett and Wilson Williamson) testified flatly that nothing was said about a union by Miller, Harwood, or Patrick, and Miller and Harwood testified that they could not recall any mention at all of a union at this meeting. D. Conclusions 647 The General Counsel contends that the Respondent violated Sections 8(a)(1) and (3) of the Act by discharging Beecham for either or both of two reasons, i.e., because of his early concerted employee-activity in securing a reduction of the "par" bonus production figure in August 1967 and/or because of his later joining the Union and assisting and supporting its organizational activity. But, as I view it, the evidence does not support either of these positions. The first of these elements of the General Counsel's contention is the less complicated and it seems clear to me, is without merit. Beecham's pre-union concerted activity posed no threat of union organization, raised a simple matter, resulted in the Respondent's almost immediate reduction of its bonus figure standard , and, despite Production Manager Harwood's annoyance at Beecham's lack of appreciation, was accompanied by no such indication of resentment on the part of the Respondent for Beecham's action, as would suggest that it was a factor in the Respondent's decision to discharge him 4 months later. The General Counsel's second contention that the Respon- dent discharged Beecham because of his later joining and supporting the Union in an attempt to organize the employees, is more complicated and is dependent upon a resolution of the conflicting evidence. To satisfy his burden of proving his position, the General Counsel relies not only on the apparent extent of Beecham's Union activity but also upon what he contends should be the proper resolution of the conflicting evidence concerning the "birthday meeting" of December 12 and the circumstances of Beecham's discharge, which have been summarized in the two preceding sections of this Decision. For, despite the conflicting testimony, the General Counsel argues (as has been noted) that the evidence shows that the Respondent summarily discharged Beecham, that the reasons it gave and still gives for the discharge are untrue, and that, when considered in conjunction with employee Gross' testimony concerning Personnel Director Miller's reference to a union in the December 12 meeting, the circumstances of the discharge require findings that the Respondent knew of Beecham's Union activity and that it "precipitately" discharged him therefor rather than because of any credible dissatisfaction with his work. Certainly, in and by itself, the uncontradicted evidence as to the extent and manner in which the Union and Beecham' engaged in their organizational activity would furnish no basis for inferring that the Respondent had any knowledge or suspicion of it. For Beecham's activity was minimal and so deliberately guarded that he had no reason to believe that the Respondent's representatives were aware of it or suspected it. Furthermore, so far as the record shows and as I have already found, Union Representative Kline's contact among the employees was limited to Beecham . Finally, again so far as the record shows and I have also found, the Union made no approach to the Respondent nor did it or any of its possible supporters take any action which came to the attention of the Respondent's representatives before Beecham's discharge. In view of all this, it appears likely, as the Respondent's representatives did in fact testify , that they knew nothing of the Union's efforts or Beecham's assistance , until the Respondent was eventually notified that an unfair labor practice charge based upon the discharge had been filed with the Regional Director. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The remaining portion of the General Counsel's contention concerning Beecham's discharge must also fail for I generally credit the testimony of the Respondent's witnesses on the two broad points of conflict relating to the circumstances and events leading up to Beecham's discharge and the anti-union statements allegedly made by Personnel Director Miller on December 12, 1967. Thus, I credit the testimony of Quality Control Man Bennett, Personnel Director Miller, Production Manager Harwood, and Managing Director Overton, and find in accordance therewith (but without repeating its detail) that the Respondent discharged Beecham on January 8, 1968, because of his continued production of defective cans beginning in July 1967. And I further find upon the testimony of employees Winsett and Williamson, and contrary to that of employee Gross, that neither Personnel Director Miller or any of the other Respondent's representatives referred to a union during the birthday meeting of December 12, 1967. In sum, upon the foregoing considerations, I conclude that the Respondent discharged James Earl Beecham on January 8, 1968, for cause, and not because of any concerted employee- activity protected by the Act nor because of his joining or assisting the Union or otherwise engaging in any acts on behalf of ithe Union. I shall therefore recommend dismissal of the allegations of the complaint that the Respondent discharged Beecham in violation of Section 8(a)(1) or (3) 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. The Respondent, Conwood Corporation, a New Jersey corporation, is an employer engaged in commerce within the meaning of the Act. 2. Tobacco Workers International Union, AFL-CIO-CLC (herein called the Union), is a labor organization within the meaning of the Act. 3. The Respondent has not engaged in the unfair labor practices within the meaning of the Act which are alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, it is recommended that the complaint herein be dismissed in its entirety.