Planters Peanuts

PLANTERS PEANUTS Planters Peanuts, a Division of Standard Brands, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 373. Case 26-CA-6268 June 10, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 23, 1977, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions 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 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,l and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. 3 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 be, and it hereby is, dismissed in its entirety. i The General Counsel excepted to the finding by the Administrative Law Judge that at the time Respondent discharged employee Diana McTyre it was under no special union pressure, such as a pending or potential election. The record demonstrates, however, that there was a great deal of interest in organizing the plant, employees distributed union authorization cards, and the Union had handbilled the plant, all to the knowledge of the Respondent. Nevertheless, this evidence does not affect our decision to adopt the conclusions of the Administrative Law Judge. 2 The General Counsel also excepted to the failure of the Administrative Law Judge to make an independent conclusion as to whether the Respondent violated Sec. 8(aX3) by suspending McTyre for removal of an article from the company bulletin board. The Board has considered the suspension separately and has concluded that the General Counsel did not demonstrate by a preponderance of the credible evidence that Respondent suspended McTyre for a discriminatory reason. Although no specific rule proscribed unauthorized removal of articles from the bulletin board, the Respondent could lawfully suspend McTyre based on its concern, fostered by previous unauthorized removals, that such conduct by employees could subject the Respondent to legal liability. The mere fact that the Respondent did not foresee that it would encounter problems regarding unauthorized removal of articles from its bulletin board and, consequently, did not issue a plant rule proscribing such conduct is insufficient in itself upon which to base a conclusion that the Respondent discriminatorily suspended McTyre in violation of Sec. 8(aX3) and (I) of the Act. See Floors, Inc.. 158 NLRB 848, 859 (1966). 3 The General Counsel has filed a motion to consolidate Cases 26-CA- 6315 and 26-RC-5326 with this case. Insofar as those cases arise from conduct unrelated to the instant case, and since two separate hearings have already been held and Decisions issued by different Administrative Law Judges, we find that consolidation at this point would not effectuate the 230 NLRB No. 25 purposes of the Act. Accordingly, the Board orders that the motion to consolidate be, and it hereby is, denied. DECISION KARL H. BUSCHMANN, Administrative Law Judge: This case was heard before me in Fort Smith, Arkansas, on November 10, 1976. The complaint was issued on Septem- ber 24, 1976, pursuant to a charge filed on August 9, 1976, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No, 373. The complaint alleges that the Respondent, Planters Peanuts, violated Section 8(aXl) and (3) of the National Labor Relations Act, as amended. The Respondent, admitting jurisdictional and certain other allegations, denied the commission of the alleged unfair labor practic- es. Briefs have been filed by both counsel for the General Counsel and counsel for Respondent and have been duly considered. Upon the entire record, including my observation of the witnesses, I make the following findings of fact and conclusions of law: FINDMNGs OF FACT Since January 5, 1976, Respondent Planters Peanuts has engaged in business in Arkansas and maintained an office and a production facility in Fort Smith, Arkansas, for the processing and packaging of salted nuts.' Because Respon- dent's operation had just commenced in January 1976, the number of employees has steadily increased from an initial few to 400 at the time of the hearing. In July 1976 there were approximately 350 workers. All employees are hired for an initial 90-day probation- ary period. In 1976, the first year of operation, approxi- mately 90 employees were terminated by the Company for unsatisfactory performance during their probationary period of employment. Diana McTyre began her employment with Respondent on May 10, 1976, serving as a packer in the Southern Belle packaging department. On June 14, 1976, at her request, she was transferred to the job of linegrader, with a substantial pay increase, in the quality control department where she worked until the time of her discharge in early August 1976. Quality control linegraders were assigned to either of two functions, packaging or processing. McTyre's job, as a packaging linegrader, was to check the weight and the condition of the packages, to draw samples from the line, to test the torques of the caps, the vacuums on the cans, the expiration dates on the packages, and to check the accuracy of the weights on the operators' equipment. Packaging linegraders worked on the first floor in the packaging department. Processing linegraders worked on the second floor close to the processing operation. Because a separate laboratory was not yet constructed, their tables and equipment were temporarily located in the breakroom which processing The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. Also the Union is now. and has been at all times material, a labor organization within the meaning of Sec. 2(5) of the Act. 131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees also used for relaxation. Bryan McAllister, the supervisor of the processing department, continually complained to Morris E. Boren, the plant manager, about the congested condition of the breakroom. In anticipation of employees' vacation times, Daniel Boone, quality control manager, attempted to cross-train processing and packaging linegraders. On July 22, McTyre worked the first half of her shift in processing quality control on the second floor, while McCubben, a processing linegrader, worked in packaging quality control on the first floor. That evening, McTyre worked with Rita Smith who had been a quality control linegrader since September 1975. The two engaged in a conversation about union representation with several processing employees who were on their break, including Claude Thomas and David Fleming. Thomas and Fleming argued against the Union, while McTyre and Smith defended the Union. The discussion became spirited and lively. During this argu- ment McTyre accused Thomas of being stupid for being against the Union. She further told him that she had been fired from her last job for union activities and had no objection to being fired from this job for the same reasons. In addition, McTyre repeatedly asked Fleming to sign a union authorization card though he consistently refused to do so. She also told him that she had been fired from her last job for union activities. She then asked his name and wrote it in a "little notebook" saying that if she was fired he would go to court. Both Thomas and Fleming were irritated by this discussion and felt harassed by Smith and McTyre. They reported the matter to their supervisor, McAllister. Thomas complained that he did not appreciate McTyre calling him stupid. John Ruston, another processing employee, also reported the matter to McAllister and confirmed that Fleming had been very upset by the discussion. The discussion was not an isolated instance of union activity at Respondent's plant. Since early 1976 there had been union organizing activities by the Union and other labor organizations at the plant. McTyre herself had signed a union authorization card, attended one union meeting, and solicited support of other employees. McTyre was one among numerous other employees who were active in union organizing activities. Supervisor McAllister's prior dissatisfaction with the crowded condition of the breakroom had increased because of the complaints which he had received from Fleming and Thomas. He requested Plant Manager Boren's permission to move the quality control tables and equipment from the breakroom to a location where it would not be damaged until the morning. The following workday the equipment was moved to the end of the cooker line in the center of the processing area. Boone explained the change to all quality control personnel, stating that complaints about harassment of processing personnel had been the reason for the shift. He told them that they could discuss any matter they wished, including the Union, but not during working time. McTyre testified that Boone told her that union solicitation was permissible on her own time. No employee was disciplined for the incident. On the evening of July 30, McTyre was in the cafeteria during her meal break. Discovering an article concerning the Union on the bulletin board, she removed the news article from the bulletin board in order to read it while sitting down. McAllister immediately approached her and inquired whether she knew that it was in violation of company policy to remove any article from the bulletin board. He asked her to accompany him and another employee, Ruston, to Boren's office. McAllister, however, was not certain whether there was a company rule against removal of articles from the bulletin board. Ruston obtained a copy of the employee handbook but neither was able to find such a rule. McAllister then decided to check with someone higher up in management. He was unsuc- cessful, however, in reaching anyone from management and therefore asked McTyre to return to work. Eventually McAllister was able to contact Boone and Perceful, the personnel manager. Boone requested McTyre to come to Perceful's office. There, McTyre admitted that she had removed the article from the bulletin board. Perceful reminded McTyre that she, like anyone else, should stand while reading items on the board and that her removal of the item was in violation of company policy. Perceful finally suspended McTyre until further notice. Prompted by this incident, Perceful and Boone proceeded to discuss McTyre's job performance generally as a probationary employee. During the discussion, Boone was especially critical of McTyre's mistakes in quality control involving two incidents. On July 22, linegraders McTyre and McCubben had failed to discover that incorrect weights were placed on packages in 700 cases of pecan chips. As a result, all packages (12 in each case) had to be opened and repackaged. On July 29, McTyre interrupted a meeting between Boone, Boren, and others and reported that the line operator on duty had the machine set on an incorrect weight. In the ensuing discussion it became clear, however, that it was McTyre who was in the error, because she had assumed that 3.125 ounces was equal to 3-1/4 ounces. These episodes concerned Boone because McTyre did not have the essential understanding of decimals and fractions. During the same discussion, Perceful expressed her belief that McTyre had not lived up to company regulations. These rules which are in the record are very explicit and explain in detail proper dress and grooming for all employees. Perceful had found McTyre on occasion with her shirttail out, without a required hair net, and braless. Both Perceful and Boone agreed to recommend that McTyre be discharged. Perceful and Boone met with Boren the following Monday, August 2, to submit their recommendation concerning McTyre. Boren agreed with their recommenda- tion to dismiss her. Boren testified that McTyre's inability to deal with decimals and fractions weighed most signifi- cantly in his decision to discharge McTyre. He himself had observed several infractions of company rules by McTyre and had been present during the controversy which McTyre had with Boone about the correct weight. The accumulation of incidents led to his decision to fire her. On Friday of that week, August 6, McTyre returned to the plant to collect a paycheck. At that time Perceful told 132 PLANTERS PEANUTS McTyre that she had made attempts to contact her and inform her that she was fired. Perceful said that there was a letter in the mail stating that she was discharged because of unsatisfactory performance as a probationary employee. Analysis Although the law recognizes an employer's right to take disciplinary action against an employee for good cause related to the maintenance of order and efficiency in his plant, Section 8(a)(3) of the Act prohibits an employer's "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage" union activity. Accordingly, the question is whether Respondent's discharge of McTyre was motivated in whole or in part by her union support or whether it was merely the discharge of an employee who had failed to meet the requirements of her probationary status. Consid- ering that the facts surrounding the discharge are not seriously disputed, the evidence must be weighed and inferences drawn from a reliance on circumstantial and direct evidence and less on credibility resolutions. The record shows that Diana McTyre had engaged in union activity and was known as a union supporter. More specifically, she had signed a union card, she attended a union meeting, and she spoke to fellow employees about the Union. But there were other employees who similarly supported the Union. For example, Rita Smith, her coworker, had engaged in union activity to the same extent as McTyre. Yet there are no allegations that any other union advocate was fired or disciplined because of any union activity. Indeed, there are no allegations of any independent charges under Section 8(a(1) of the Act and there is no evidence of any union animus in the record. Respondent, in discharging McTyre, acted at a time when it was under no special pressure, such as a pending or potential election. Respondent made no antiunion state- ments; rather Respondent, by its agent Boone, told the employees that they were free to discuss and solicit on behalf of the Union in their free time. In short, the record contains no indicia of a motive which would link McTyre's union activity to her discharge. On the other side of the spectrum, Diana McTyre was a probationary employee who at the time of her dismissal had worked with the Company barely 90 days. The discharge of a probationary employee is not subject to the same scrutiny as that of an employee with a long history of service for the employer. For example, in Federal Pacific Electric Company, 195 NLRB 609 (1972), the Board found no violation of Section 8(a)(3) because the employer had a business justification for the discharge, despite the fact that the probationary employee was an active union adherent and that the Company had committed independent Section 8(a)(l) violations. On at least two occasions, as a quality control linegrader, McTyre made mistakes with respect to weights. Less than 2 weeks before the decision to discharge her, McTyre had failed to discover that incorrect weights were placed on packages in 700 cases of pecan chips. Only 4 days prior to the decision to discharge her, McTyre instructed a line operator to change the weight setting on his machine based on her misunderstanding that 3.125 ounces was the same as 3-1/4 ounces. The failure of a quality control linegrader to discover mistakes as to weights is potentially a serious matter for Respondent. Because the accuracy of weights marked on packages is subject to Federal regulation, incorrect weights could subject Respondent to legal liability by the appropriate Federal agency. Even when, as here, a mistake as to weights is discovered prior to shipment, packages have to be reopened and repackaged at considerable expense to the Company. Accordingly, Respondent's concern with McTyre's ability to perform this aspect of her job was reasonable. General Counsel argues that McTyre was "ultimately fired for the simple act of removing, to read, a document." If this were true, I would agree with him that the discharge could be argued to constitute a pretext. But the record shows otherwise. It shows that the removal of the antiunion poster from the bulletin board initially prompted McTyre's suspension and triggered a review of McTyre's entire job performance as a whole. But her discharge was due to a variety of factors, not the least of which was her inability to monitor the weights. While it is true that the Company had no rules governing the removal of items from the bulletin board, the record shows that Respondent's personnel manager, Perceful, had been very concerned about the removal of documents from the bulletin board in the past which, according to her testimony, had subjected the Company to fines. In any case, Respondent's witnesses, including Perceful, were in agreement that this incident standing alone would not have resulted in her discharge. General Counsel also treats McTyre's violations of dress and grooming rules as trivial, suggesting that she "permit- ted a few strands of hair to fall on her neck." Yet the Company's rules in this regard are quite specific and, considering that Respondent is a food processor, these rules have a reasonable basis. I also do not agree with General Counsel that the removal of the quality control station from the breakroom was union motivated. Management had long been dissatis- fied with the location of the "Q.C." station in the breakroom. Further, it was not that McTyre made prounion remarks which became a point of irritation to several employees, but the manner in which she accused her coworkers. The move of the work station, therefore, was not made in an attempt to discourage prounion statements, but it was prompted by management's concern for improved working conditions for its employees. Finally, McTyre was not treated disparately from other employees. It was common practice for this Employer to discharge numerous probationary employees. In the first 10 months of the plant's operation 90 probationary employees were dismissed; that is roughly one-fourth of the total work force. It appears that the Employer was consistently and routinely far from lenient in evaluating employees during their probationary periods. For example, in Hadco-Tiffin, a Division of A-T-O, Inc., 198 NLRB 820 (1972), a proba- tionary employee's discharge was held not to violate the Act. The Board considered it important that there was no animus against the Union, that the employee was a probationary employee, and that there was no evidence of disparate treatment by the employer. For the foregoing 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons, it is my conviction that McTyre was not subjected to unlawful discriminatory treatment by her Employer. CONCLUSIONS OF LAW 1. Planters Peanuts is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 2 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. 373, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to show by a preponderance of the evidence that Respondent Planters Peanuts violated Section 8(aX)(I) and (3) of the Act. ORDER 2 I recommend that the complaint be dismissed in its entirety. 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. 134