Shed's Food Products

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shedd's Food Products, Division of Beatrice Foods Co. and General Drivers, Warehousemen and Helpers Local Union 28, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 11- CA-6798 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 5, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a brief in support of the Administrative Law Judge's Decision and an answering brief to the exceptions. 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 considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, ' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hearing in this proceeding was held at Greenville, South Carolina, on March 24, 1977, on complaint of the General Counsel against Shedd's Food Products, Division of Beatrice Foods Co., here called the Respondent or the Company. The complaint issued on December 30, 1976, on a charge filed on November 1, 1976, by General Drivers, Warehousemen and Helpers Local Union 28, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen 232 NLRB No. 90 and Helpers of America, here called the Union or Local 28. The sole issue of the case is whether the Respondent discharged an employee in violation of Section 8(aX3) of the Act. Briefs were filed by the Respondent and the General Counsel. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Respondent, a Delaware corporation, is engaged in the manufacture of margarine in a plant in Greenville, South Carolina. During the past 12 months, a representa- tive period, it received raw materials at this plant from points directly outside the State valued in excess of $50,000. During the same period it shipped from this plant directly to out-of-state locations products valued in excess of $50,000. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE Patricia Forrester, an office employee, worked for this Company from May 1974 to October 1976, when she was discharged following an error she committed in her work that cost the Company a loss of over $1,000. The complaint alleges that by so discharging her the Respondent discrimi- nated against her because of her union activities. A year earlier, one day in the summer of 1975, she had lunch in a restaurant with two girls who worked in the office of Teamsters Local 28; Frank Wood, business agent of that Local, was also there. This was the total extent of Forrester's "union activities," in retaliation for which, according to the General Counsel, the Company fired her 15 or 16 months later. Denying such unlawful motivation, the Respondent asserts she was dismissed for just cause, many repeated errors in her work for 4 months culminating in the aggravated loss resulting from her final mistake in October 1976. It is a circumstantial evidence case, in which all relevant factors must be considered. Do all those facts indicating illegal motive prove convincingly the complaint is correct? Or do all the facts, including those which tend to support the affirmative defense of discharge for just cause, fall short of that quantum of proof required under Board law to prove any unfair labor practice? The test is authoritatively set out in N.LR.B. v. Glen Raven Silk Mills, Inc., 203 F.2d 946 (C.A. 4, 1953) which speaks of the necessity for a preponderance of the substantial evidence on the record as a whole. Local 28 has long been the established collective-bar- gaining agent for the Respondent's approximately 100 plant employees and drivers working at this plant. The office employees - eight persons - have never been represented by a union. In 1975 Forrester was the payroll clerk, and, among other things, she handled the dues 540 SHEDD'S FOOD PRODUCTS checkoff records and health and pension payments for- warded to Local 28. She had frequent telephone conversa- tions with the girls who worked in the Union's office and conceived the notion of meeting them socially. She therefore went to the Union's office for that purpose. Wood, in charge there, took the girls to lunch. Calvin Oliver, company comptroller in charge of the office, and Brantley Tew, general manager and a corporate officer, learned of the girl's social chat with Local 28 people within a few days or a week - it does not really matter just how soon. Tew, who had frequent dealings with Wood on contract grievances, and therefore knew him well, called the business agent on the phone and asked if this was true. Forrester testified that Oliver told her at that time - still back in the summer of 1975 - he knew of the lunch date and asked "why did he [a typographical error in the transcript; it should be we] want the union into the office," and she answered that that had nothing to do with it. Oliver then said, still according to Forrester, "Mr. Tew was really mad about it, that he didn't like it at all." Forrester also testified that the next day Oliver brought up the subject again, this time telling her "Mr. Tew was again very upset and that Mr. Tew would be watching everything that I did; and so he said, 'to be careful.' " As already stated, Forrester never thereafter did or said anything that could conceivably be deemed union activity. More than once, during the following months, Tew and Wood, in their unrelated dealings involving the union- represented employees, "needled" one another on this question of Local 28 organizing the office girls. Wood kidded Tew, but made clear at the hearing the Union never went near the office girls and there were never any such activities by the girls at all. One day in April or May 1976 Wood was sitting in Tew's office, and exchanged a "hi" with Forrester through the open door as she happened to pass by. Again, according to her testimony, Oliver told her Tew did not like her sticking her head in the door to greet Wood. She added she denied it, but that Oliver continued that day - "That Mr. Tew had been very upset about the lunch and 'that I had really better watch what I was doing.' " She was discharged 5 or 6 months later. The final item of evidence offered to prove the unfair labor practice is her testimony that in the discharge conversation, after Oliver told her it was because of "too many errors," she rejected the reason. To this Oliver then said, according to her: "I told you that Mr. Tew would never forgive you for what happened, and that he will be watching you ... ." Of all of Respondent's testimony, that which lends support to the complaint are Oliver's statements to her: (I) in the summer of 1975 that Tew did not like what she was doing and she should therefore watch what she did and be careful; (2) a year later again that she had "better watch out"; and (3) in the discharge conversation that Tew had never forgiven her. At the hearing Oliver directly denied having made any of these statements. And Tew as a witness also denied having voiced any such ideas to Oliver at any time. I credit Forrester's testimony that Oliver told her in 1975 that Tew was irritated over what she had done and that she had best look out for herself. Tew did check with Business Agent Wood when he learned of the lunch date. A mere lunch with friends by an office girl would hardly cause the general manager to do that; he must have been disturbed. He even asked Wood, if Local 28 was trying to organize his office staff. Oliver may even have made the April comment about Tew not liking Forrester's friendliness with Wood that day. As to Forrester's story that she provoked Oliver into saying Tew still held the lunch incident against her in October 1976, when she was discharged, I cannot believe it against Oliver's denial. And this is not a matter of demeanor alone. Too many things had happened in the interval - tolerance towards her by management and faults committed by her in her work - that lend credence to Oliver's denial. As stated, this is a circumstantial evidence case. Is a positive finding of illegality justified if all of the pertinent facts be considered? I. Like everybody else, I suppose, Forrester said she made errors while working as a payroll clerk from 1974 to 1976. In April 1976 an opening developed in the job of data processing operator. It was a better job and paid $40 a month more than she was getting. It is the Company's policy, when job opportunities open, to further the welfare of its own employees before inviting outsiders. The Respondent promoted Forrester to the better job. 2. Forrester made many mistakes on the job. Asked had she been criticized for this or that recorded error, she denied most of the asserted reprimands, but did say she could recall one or two. The Company maintains regularly written entries in the employees' personnel files of such corrective interviews. From these, kept in Forrester's file, it is clear she was told no less than eight times, on various dates between June 21 and October 5, that her mistakes had caused substantial problems, and that she had to improve. These records, received in evidence, are reliable as having been kept in the regular course of business, for the General Counsel not only did not question their authenticity at the hearing, but also brought out the fact that like entries are kept in the personnel files of other office employees. 3. That Forrester's October 14 mistake, as she herself admitted, caused a loss of over $1,000 ($1,199 according to the more likely correct testimony of the comptroller), on its face proves what could well be called a prima facie justification for the discharge 2 weeks later. It took 2 weeks to find a qualified replacement, and this is true, for Forrester also said the phone kept ringing with calls from employment agencies during the 2 weeks after October 14 before her actual dismissal. It cannot be argued, in this case, that if the Respondent really wanted to release Forrester for incompetence, why did it not do so earlier, what with so many prior provocative mistakes. The fact is that, compared to past errors, this was a whopper. Moreover, if the Respondent overlooked all those past errors, it proves as much that it did not harbor personal malice against the girl. I do not think that if Tew had been of a mind to get Forrester out of the plant for fear she might become too intimate with Local 28, he would have favored her with a promotion, or been as lenient and understanding of her problems for so many months in 1976 as the record shows. 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no element of timing here that might raise suspicions. The only thing Forrester did, so far as unionism in any form is concerned, happened back in the summer of 1975. Fifteen months is too long a time to sustain an inference of causal relationship. Another girl, Johnson, also proved to be at fault at the very time Forrester was released. Johnson was lax in the phone pressure to be applied to a certain delinquent account, and that customer went into bankruptcy owing the Respondent $18,000. An officer of that company then assured Tew the money would somehow be paid in full anyway, within a year or two. That lady was not fired. It is an exaggeration by the General Counsel to say that Johnson "made an $18,000 mistake." Forrester did make a $1,000 mistake, for it was her direct error that sent the wrong margarine to the customer. The bankrupt customer's credit was poor, and Johnson's more pressing reminders might or might not have made any difference, more probably not. But circumstantial, or inference, cases are not determined by isolated facts. The I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. top keeps revolving. The Respondent has been in bargain- ing relationships with Local 28 for the bulk of its employees for 22 years; there have been successive collective-bargaining contracts and never any strikes. And throughout these years never before has any charge of wrongdoing against this Company been filed with the Board. If a dirty record is relevant to an inference question, no less so is a clean one. Considering all things on this total record, I find the evidence insufficient to prove that in fact Forrester was discharged because of any union activities on her part and shall therefore dismiss the complaint. Upon the basis of the foregoing finding and conclusions, I hereby issue the following recommended: ORDER' It is hereby recommended that the complaint be, and it hereby is, dismissed. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 542