Joseph Schlitz Brewing Co.

JOSEPH SCHLITZ BREWING CO. 799 Joseph Schlitz Brewing Co., Container Division and Linda S. Pollard. Case 12--CA-6159 June 21, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On February 21, 1974, Administrative Law Judge Paul E. Well issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting 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 authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Administrative Law Judge and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Administra- tive Law Judge's Decision, Respondent's exceptions and supporting brief, and the entire record in the case and adopts the findings,' conclusions, and recommendations of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent discharged Sharon Pollard because of her social or marital relationship with union adher- ents and, therefore, Respondent violated Section 8(a)(1) and (3) of the Act. We do not agree. In our view, Respondent's discharge of Sharon Pollard was motivated by its legitimate desire to protect the confidentiality of its labor relations matters from disclosure to others. Mrs. Pollard gave Respondent ample reason to question her suitability for her job. Her inquisitive actions included the screening of telephone calls to the industrial relations manager's office and her questioning of that manag- er's secretary concerning the reason for an employ- ee's meeting in the manager's office and whether the employee was being terminated. These actions, not suprisingly, led Respondent to suspect that she was trying to obtain confidential information improperly for the purpose of transmitting it to others. In these circumstances, we would not find her discharge to be a violation of Section 8(a)(3) of the Act and, accordingly, we would dismiss the complaint. Respondent hired Sharon Pollard to work as a secretary-receptionist to the purchasing and account- ing department. As a receptionist, her desk was located in the lobby of the plant where she answered the switchboard and greeted the customers, vendors, and people applying for jobs. Respondent's manage- rial offices were located just off this lobby. Mrs. Pollard's husband worked for the Reynolds Metal Company at a plant in Tampa. He was an active union member for the Steelworkers local at the Reynolds Metal plant, which is a different local than the Steelworkers local which represents employees at Respondent's Tampa plant. As an office clerical employee, Mrs. Pollard was not included in the bargaining unit. When Sharon Pollard was hired, Industrial Relations Manager Ron Lauterbach dis- cussed Mr. Pollard with Production Manager Fair, who formerly had worked at the Reynolds Metal Tampa plant, and Fair commented, "He worked at Reynolds and was no problem." Mr. and Mrs. Pollard have been social friends for more than the past 10 years with Jerry Alvarez, the vice president of the Steelworkers local representing the employees at Respondent's plant. Two incidents on Friday, September 21, 1973, and two more incidents on the following Monday culminated in Mrs. Pollards termination. First, on Friday morning Production Manager Fair asked Lauterbach whether he was aware that Mrs. Pollard was screening his telephone calls-meaning she was asking who was calling. Fair explained that on two separate occasions within the past several days he had overheard Pollard screening Lauterbach's tele- phone calls. Pollard acknowledges that she was instructed to put Lauterbach's calls directly through to his secretary without asking any questions. If his secretary was not in, then Lauterbach would answer the telephone directly, and if he was also not in then Pollard was to take a message. Pollard testified that later that same morning Union Vice President Alvarez called to speak to Mr. Connell, the union president, but Connell was not around at the time of the call. Shortly thereafter, Connell and Mr. McCloud, the union grievance chairman, emerged from Lauterbach's office where the three of them had been discussing union matters. Connell went to use the lobby phone some 10 to 15 feet from Pollard's desk. Connell received a busy signal and commented he was trying to reach Jerry Alvarez. Pollard stated she had just spoken with Alvarez on the phone and believed him to be at home, but made no comment that Alvarez had called to talk to Connell. Later in the afternoon, Connell told Lauterbach he was upset that someone would be reporting to another union officer the fact that he and Lauterbach were having a conversation. On Friday afternoon, Lauterbach and Fair met with Plant Manager Drinkard and discussed the screening of the telephone calls and Connell's I We hereby correct an inadvertent error in the Decision of the which read "Mrs. Lauterbach's husband" are hereby changed to read "Mrs. Administrative Law Judge. In the third par. of sec. III, the first three words Pollard's husband." 211 NLRB No. 102 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concern about being under surveillance. They decid- ed something would have to be done and reached three alternatives : they could sit down with Pollard and tell her that they thought she was doing wrong; they could terminate her; or they could try to obtain additional information about what she was doing. Lauterbach called Mr. Baker, the director of indus- trial relations of the corporation, who expressed his concern over the lack of documentation of the problem. On the following Monday, an employee went into Lauterbach's office about 8:30 a.m. and asked for a leave of absence which Lauterbach granted. When the employee left, Lauterbach heard Pollard ask his secretary who the individual was, whether he was an employee, what he was doing there, and whether he was being terminated . Lauterbach agreed that Pollard had reason to inquire who the employee was since she was the receptionist and should know the employees. However, he could see no legitimate interest for her seeking the other information. Immediately after this occurrence, Lauterbach went into the plant to notify Fair that the employee was given a leave of absence when Pollard paged Connell over the public address system to call the switchboard. Pollard, Lauterbach, and Fair testified that both Lauterbach and Fair had told her not to page anyone over the intercom unless it was an emergency. Lauterbach immediately went to Connell and inquired whether there was an emergency and if there was anything he could do. Connell replied that it was not an emergency. After this conversation, Lauterbach again met with Drinkard and Fair and they decided to terminate Pollard. Lauterbach discharged Pollard at the close of business on Monday saying, "We have reason to question the confidentiality of your job and the relationship to your family and some of the members of the bargaining unit. It may lead to an undesirable situation." Lauterbach explained that the quality and quantity of her work was satisfactory and she was not being terminated for that reason. Pollard stated, "Knowing that you feel that way about me I would not want to work here." Contrary to the Administrative Law Judge, we find that Respondent was motivated to discharge Mrs. Pollard because of its proper concern over protecting its labor relations matters from disclosure. Respon- dent knew at the time that it hired her that her husband worked at Reynolds Metals. As the Admin- istrative Law Judge found, "she made no effort at the office to conceal the fact" that she and her husband were social friends of the vice president of the Union. Furthermore, there is not one shred of evidence that Respondent harbored any animus or hostility toward the Union, or that its relations with the Union were anything other than amicable. There is no allegation of independent 8(a)(1) violation or any evidence whatsoever that Respondent was attempting to discourage any of its employees from union member- ship or activities in behalf of their recognized collective-bargaining representative. Somewhat inconsistently the Administrative Law Judge found that if Respondent was not trying to discourage union membership and activities by discharging Mrs. Pollard, then, alternatively, it was encouraging union membership and activities by discharging Mrs. Pollard. The latter notion is apparently based on the local union president's annoyance at being paged in the plant improperly by Mrs. Pollard and his not unfounded belief that Mrs. Pollard was watching his actions. Nevertheless, there is no evidence that the union president requested, or even suggested, Mrs. Pollard's discharge. We cannot accept such speculation as a theory for finding a violation of the Act. In view of the foregoing, we shall dismiss the complaint in its entirety. AMENDED CONCLUSION OF LAW We substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. By discharging Linda Sharon Pollard, Res- pondent did not commit unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On October 12, 1973, Linda S. Pollard, filed with the Regional Director for Region 12, of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Joseph Schlitz Brewing Company, Container Division, hereinafter called Respondent, violated Section 8(a)(1) and (3) of the Act by her discharge because of her husband's membership and activities on behalf of the United Steel Workers of America, a labor organization, and has since refused to reemploy her. On November 29,1 the said Regional Director on behalf of the Board's General Counsel issued a complaint alleging that the Respondent had violated Section 8(a)(1) and (3) of the Act by the discharge of Mrs. Pollard. By its duly filed answer, Respondent admitted All dates hereinafter are in the year 1973 unless otherwise specified. JOSEPH SCHLITZ BREWING CO. discharging Mrs. Pollard but denied that it had failed and refused to reinstate her to her former or substantially equivalent position. Respondent further denied any allega- tions that the discharge of Mrs. Pollard was an unfair labor practice. On the issues thus joined, the matter came on for hearing before me on January 10, 1974, at Tampa, Florida. All parties were present and represented by counsel and had an opportunity to call and examine witnesses and cross-examine them and to adduce relevant and material evidence. At the close of the hearing, the parties had an opportunity to argue orally on the record. Mr. Romano, on behalf of the General Counsel, took this opportunity but oral argument was waived by Respondent. After the close of the hearing, a motion to correct the record and memorandum of additional authority in support of the General Counsel's position was filed by the General Counsel. The motion, which is unopposed, is granted. A brief has been received from Respondent. On the entire record in this case, and in consideration of the argument and brief, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent is a corporation, wholly owned by Joseph Schlitz Brewing Company, engaged in the manufacture of cans in various States of United States including Tampa, Florida. Annually Respondent purchases and receives at its Tampa plant goods valued in excess of $50,000 from suppliers located outside the State of Florida and annually sells its product valued in excess of $50,000 to Joseph Schlitz Brewing Company which in its turn annually distributes from its Tampa, Florida, plant products valued in excess of $50,000 directly to points outside the State of Florida. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steel Workers of America, AFL-CIO, Local 6813 and Local 8099, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE Respondent built and commenced production in its Tampa, Florida, plant early in the year 1973. At the time the plant commenced operation, Respondent hired most of the managerial and supervisory hierarchy from a container plant operated by Reynolds Metal Company in Tampa, Florida. In November 1972 the Charging Party, Mrs. Pollard, filed an application for a secretarial position with Respon- dent and on January 15, 1973, was hired by Industrial Relations Manager Ron Lauterbach. After an interview by Gary Butler, the manager of purchasing and accounting, she was hired as a secretary-receptionist to the purchasing 2 When Mrs. Pollard commenced work the office was in a trailer. She moved into the new building in February or March. Subsequently a public address system was installed with an outlet to her desk. The managerial offices of the plant were located off the lobby in which Mrs. Pollard's desk 801 and accounting department and worked under the supervi- sion of James Schroeder. As part of her job she answered the switchboard and greeted people coming into the company offices, typed correspondence, and did miscella- neous jobs. Her desk was placed in the lobby of the new plant as soon as it was finished.2 Mrs. Lauterbach's husband was and is an employee of the Reynolds Metal Company at its container plant in Tampa and an active union member whose activities included running for president in an election in the last year. She and her husband have for over 10 years been acquainted with Mr. Jerry N. Alvarez, the vice president of the Steel Workers Local representing the employees at Respondent's plant. Throughout the period of her employ- ment Mrs. Pollard and her husband met socially with Mr. Alvarez and she made no effort at the office to conceal the fact that she was on amicable terms with him. On Friday, September 21, a number of incidents took place affecting Mrs. Pollard. First Production Manager Fair asked Mr. Lauterbach whether he was aware that Mrs. Pollard was screening his phone calls. Mr. Fair went on to say that a few days earlier he had been reviewing applications working near her and had heard her asking callers who was calling. This was contrary to the instruc- tions Lauterbach had given Mrs. Pollard that she was not to screen his calls but was to put his calls directly through when the secretary was present. If his secretary was not there Mrs. Pollard was to take a message and he would return the call. Only if it appeared to be an emergency was she to page Mr. Lauterbach or try to find him. It appears therefore that under circumstances that Mr. Lauterbach's secretary was not at her desk, it was necessary that his calls be screened. Later the same morning, Mr. Lauterbach met with Mr. Connell, the union president, and Mr. McCloud, the union grievance chairman, concerning some union-management relations, after which Mr. Connell went to use the lobby phone which is 10 to 15 feet from Mrs. Pollard's desk. Connell was unsuccessful in reaching the person whom he tried to call and stated that he was trying to reach Jerry Alvarez, the vice president. Mrs. Pollard then spoke up saying that she had just spoken with Mr. Alvarez on the phone and believed him to be at home. Mr. Connell thereafter stated that he was upset, that while he was talking with management someone was reporting to another union officer the fact that they were talking and "he expressed the fact that he was somewhat being watched, policed, or birddogged to this fact. And, every move he would make would be reported to someone else." 3 Mr. Lauterbach met with Plant Manager Drinkard and Production Manager Fair and discussed with them the screening of his telephone calls and Mr. Connell's distress at what he imagined to be surveillance. They decided that something would have to be done and reached three alternatives. One, to sit down with Mrs. Pollard and tell her that they thought she was doing wrong, second would be to terminate her, and the third would be to try to obtain was located including the office of Mr. Lauterbach 3 As quoted by Mr. Lauterbach; there is no evidence that in fact Mr. Connell was being watched by Mrs. Pollard or anyone else. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional information about what she was doing. Mr. Lauterbach called Mr. Baker, the director of industrial relations of the corporation, for his advice. Mr. Baker made no commitment but stated that he would call back with his decision ; it appears that he felt that there was no documented case warranting action. On the following Monday, an employee came in about 8:30 a.m. and asked for a leave of absence . When he left Mr. Lauterbach heard Mrs . Pollard ask his secretary who the employee was, whether he was an employee , what he was doing there, and whether he was being terminated. The secretary answered that she did not know. Mr. Lauterbach agreed that Mrs. Pollard had reason to find out who the employee was since she was the receptionist and should know the employees, but he could see no excuse for her seeking the other information, what the employee was doing with the personnel manager and whether he was being terminated . Immediately after this occurrence, while he was in the plant notifying Mr. Fair that he had given one of the employees a leave of absence, Mr. Lauterbach heard Mrs. Pollard page Union President Connell to call the switchboard. Mr. Lauterbach had issued orders that hourly paid employees were not to be paged in the plant and specifically that Mr. Connell was not to be paged unless it was a matter of emergency. He immediately looked up Mr. Connell and asked him if there was an emergency and if there was anything he could do. Connell reported that Mrs. Pollard had incorrectly paged him and expressed his resentment against her. Following that conversation Mr. Lauterbach met with Drinkard and Fair and the three men decided to terminate Mrs. Pollard at the close of business on that day. She was called in to the office by her immediate supervisor, Mr. Butler, at 4 p.m. Mr. Lauterbach said, "We have reason to question the confidentiality of your job and the relation- ship to your family and some of the members of the bargaining unit. It may lead to an undesirable situation." He went on to say that the quality and quantity of her work was satisfactory and she was not being terminated for that reason. He quoted Mrs. Pollard as saying "knowing that you feel that way about me I would not want to work here." After some discussion about a letter of recommen- dation, Mrs. Pollard was assisted in removing her personal effects and leaving the plant. The termination form in Mrs. Pollard 's file states as the reason for her termination "We have reason to question that the confidential nature of the position and the relationship with her family and some members of the bargaining unit could lead to an undesirable situation. Quantity and quality of work satisfactory." Subsequently Mrs. Pollard filed a claim with the Bureau of Employment Compensation. The document filled out by the Respon- dent in response to the claim states "Mrs . Pollard was discharged because of a potentially undesirable relation- ship with the union . If you have any questions, please feel free to call me" and was signed by Mr. Lauterbach. Thereafter Mr. Lauterbach wrote a letter of recommenda- tion for Mrs. Pollard which states "To Whom It May Concern:" This is to recommend Mrs. Linda Sharon Pollard as a potential employee. During the nine months Mrs. Pollard worked for us, the quality and quantity of her work was most satisfactory ; however, due to unusual circumstances particular to our situation, we were forced to terminate her employment . With another company, we feel Mrs. Pollard would make an excellent employee. If you have any questions, please feel free to contact me at 988-5161. Sincerely, R. L. Lauterbach Discussion and Conclusions The General Counsel contends that , under the circum- stances shown to have resulted in Mrs . Pollard's dismissal, Respondent violated Section 8(a)(3) and (1) thereby. Respondent, on the other hand, contends that there is no showing that Mrs. Pollard engaged in any union or concerted activity and that it was acting within its right to protect itself against the possibility that confidential information could be disclosed to the Union because of Mrs. Pollard's relationship with her husband and with Mr. Alvarez. There is no showing that confidential information was ever disclosed nor that Mrs . Pollard's curiosity concerning the matters taking place around her signified anything more than the desire on her part to know what was going on. Indeed to judge by the position Respondent took in discharging Mrs. Pollard and the report made to the State Unemployment Commission and on her personnel file, there is no indication that she was discharged for cause. The discharge appears to have been precautionary both from the standpoint of the possibility that accidental slips in secret company policy might be made before Mrs. Pollard and reported to the Union or perhaps as a concession to Union President Connell who appears to have felt threatened by Mrs . Pollard's employment in the front office. There is no showing that Mrs. Pollard was privy to any confidential information. Her job entailed no contact with the personnel records or labor relations records of Respondent; at most she was a conduit for telephone calls to Mr. Lauterbach's office and in this regard she was limited by his instructions .4 Under all the circumstances it appears that Mrs. Pollard was discharged solely because of her relationship with her husband and with Mr. Alvarez. Respondent contends that, because she herself engaged in no union activities, the discharge could not violate Section 8(a)(3). However, under the terms of the statute, a discharge that encourages or discourages membership in a labor organization violates Section 8 (a)(3) and a discharge of an employee because of social or marital relationship 4 There is no showing that Mrs. Pollard violated the instructions of Mr. not shown to have been at her desk when the alleged "screening" took Lauterbach and she denied that she did so . Mr. Lauterbach's secretary was place. JOSEPH SCHLITZ BREWING CO. with union adherents because they were union adherents is clearly violative of the Acts Respondent argues that because there is no showing of antiunion animus it cannot be inferred that the discharge is violative of Section 8(a)(3) and (1) of the Act in the absence of proof of discriminatory intent. This argument has, in my opinion, been put to rest for all time by the Supreme Court in the Radio Officers' case in 1954.6 Section 8(a)(3) has to do both with encouraging and discouraging union membership, and that includes encour- aging and discouraging fealty to the union officers. It appears that much of Respondent's distress with Mrs. Pollard herein was due to the fears of Union President Connell that she was spying on him. Respondent obviously was concerned to assuage his feelings in this regard. If nothing else, Mrs. Pollard's discharge served warning that employees should display loyalty to their union president, or, in the alternative, the employees had better not display loyalty to the union vice president-in either case their jobs are jeopardized. Such an action on the part of Respondent clearly inhibits union activity, one way or the other, encouraging or discouraging union membership. I find that, by the discharge of Mrs. Pollard, Respondent violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free, flow thereof. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Joseph Schlitz Brewing Company, Container Divi- 5 Tolly's Market, Inc., 183 NLRB 379; Golub Bros. Concessions, 140 NLRB 120. 803 Sion, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steel Workers of America, AFL-CIO, and its Locals 6813 and 8099 are labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging Linda Sharon Pollard because of her social and marital relationships with agents of the Union and in order to discourage activities on behalf of the Union, Respondent committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent discriminatorily dis- charged Linda Sharon Pollard in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent cease and desist from such unfair labor practices and be required to take certain affirmative action which the Board finds necessary to remedy and remove the affects of such unfair labor practices and to effectuate the policies of the Act. I shall recommend that Mrs. Pollard be offered immediate and full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and be made whole for any loss of pay she may have suffered by reason of the discrimination against her from the date of the discrimina- tion to the offer of reinstatement . Loss of pay shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent be ordered to make available to the Board, upon request, payroll and other records in order to facilitate the computation of backpay due. 6 Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. If. Bull Steamship Company] v. N.L.R.R. 347 U.S. 17.