Dickey John Corp.

National Labor Relations Board - Board Decisions

Jul 25, 1978

237 N.L.R.B. 143 (N.L.R.B. 1978)

Dickey John Corporation and American Federation of
Grain Millers, AFLCIO-CLC. Case 38 CA 3151
July 25, 1978
DECISION AND ORDER
By CHAIRMAN FANNING ANI) MEMBERS JENKINS
AND PENELLO
On March 3, 1978, Administrative Law Judge Mel-
vin J. Welles issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed limit-
ed exceptions and a statement in support thereof.
Respondent filed an answering brief to the General
Counsel's limited 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Laws Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
The Administrative l.aw Judge found, inter al/a. that Respondent did
not violate Sec. 8(al I) b) Issuing an oral and written warning to empil, ee
Patricia Miller on Januars 25. 1977. In reaching his concluslion. the Admin-
istrative Law Judge commented that ain addmiinal basis for not fIlding a
violation here was " had the Company been moti ated h? a desire to
chill any further efforts hs its emploees to seek union representation It
would surely have at least given the emplosees s,ome food for thought bh
disciplining Patricia Miller in a more public aas. r hb somen frinl of dlsci-
pline more severe than a warning." The Adminlstratl, e ILaw Judge also
stated that, had Miller been discharged instead of mTerels gilen .i aslrning.
he probablsy ould hare found a vwolation of the Act Although we agree
with the Administrative l ass Judge's dlsmissal of the complainL we beheve
that he engaged in unnecessars speculation concerning Respondent'., ac-
tions Accordingli. we dlsasow such comments
DECISION
STATE MENT OF THE CASE
MELVIN J. WELLES. Administrative Law Judge: This case
was heard at Springfield, Illinois. on July 14. 1977. based
on charges filed April 7, 1977, and a complaint issued May
31, 1977, alleging that Respondent violated Section 8(a)( )
DICKEY JOHN CORPORATION
of the Act. T he General Counsel and the Respondent have
filed briefs.
Upon the entire record in the case,' including my obser-
vation of the witnesses. I make the following:
FINDINiGS OF FACT
I IHF BUSINESS OF IHE EMPLOYER AND THE LABOR
t)RGANIZATION INVOLVED
Respondent, a Delaware corporation, with an office and
place of business located at Auburn, Illinois, is engaged in
the business of manufacturing electronic agricultural
equipment. During the 12 months preceding issuance of
the complaint herein, Respondent sold and shipped fin-
ished products from its Illinois facility valued in excess of
$50,000 to points outside the State of Illinois. During the
same period, it received goods and material valued in ex-
cess of $50,000 directly from points outside the State of
Illinois. I find that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
American Federation of Grain Millers, AFL-CIO-CLC,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
11 IHE ALLEGEL) UNFAIR LABOR PRACTICES
A. Issues and Facts
This case, involving allegations that Respondent violated
Section 8(a)( ) as to a single employee, Patricia Miller, by
interrogating and forbidding her from engaging in union
activities, on January 8, 1977, and by issuing both oral and
written warnings to her on January 25, 1977, was vigor-
ously tried by the General Counsel, and similarly defended
by Respondent.
There is a sharp conflict in testimony between Company
Supervisor Marx Jaggers and employee Patricia Miller
with respect to the January 8 incident. Otherwise, the dif-
ferences in testimony between the General Counsel's and
the Company's witnesses are relatively slight, and more
subtle than sharp.
By way of background, in a Board-conducted election in
August 1975, the petitioning union, the UAW, lost by a
vote of 241 to 71. In November 1976, the Grain Millers
Union, the charging party in the instant case, lost a Board-
conducted election bh a vote of 417 to 114. During the
1976 election campaign, Patricia Miller was a very strong
union proponent, openly expressing her views and con-
ducting her organizational activities. Her views and her ac-
tivities in this respect, as Respondent not only concedes,
but as will be shown, relies upon in "defense," w'ere well
known to management officials, many of whom had specif-
ic discussions with her concerning the Union. There were
no objections or charges filed, nor is there any suggestion
of objectionable conduct or unfair labor practices having
occurred during the Grain Millers' organizational cam-
I he (ienera ( ounse 's lino ppo 'ed Ilotion to correct Iranscript is herebs
granted
237 NLRB No. 22
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paign, or in connection with the UAW's campaign a year
or so earlier.
According to Miller, Company President Lamphier held
a meeting of employees on January 7. Company General
Foreman Joe Semanik testified that the meeting took place
on January 14, and Divisional Superintendent Lenzi, refer-
ring to this meeting, also placed it on January 14. 1 here is
no question but that a meeting was held. Nor is the sub-
stance of a portion of that meeting, as testified to by
Miller, at issue, for her testimony was uncontroverted.
However, despite the fact that presumably most of the wit-
nesses in the case would have been at the meeting, in addi-
tion to some 50 or so others, there is nothing but the hare
statements of the date by Miller as being January 7. and by
Semanik and Lenzi as being January 14 in the record.'
According to Miller's uncontradicted testimony, Lam-
phier said that he hoped the Union would not try to beat
him again, that it cost the Company a lot of money during
the campaign that could have been used for other things.
At the time he said this, a slide was projected on a screen
depicting a man holding a bat with the word "union" on it.
and a little Dickey-John man under the bat. Then a slide of
a Grain Millers' card was flashed on the screen, and Lam-
phier said he hoped none of them would be passed around
the plant, if anyone saw them being passed out to turn
them into the office, and to make sure that no one signed
anything unless they knew what they were signing. While
the screen was showing the Grain Millers' card, Patricia
Miller took some out of her purse, stood up, held out some
cards, and asked the employees nearby if anyone wanted
one.
On January 8, Miller was called into the cafeteria by her
supervisor, Mary Jaggers. According to Miller, Jaggers told
her she was bringing her in for talking. She asked Miller if
she had been campaigning for the Teamsters the day be-
fore. When Miller replied that she was not, Jaggers told her
she was too outspoken about unions, and she did not want
Miller talking about them when she (Jaggers) was around,
and mentioned the union signs that Miller had worn during
the Union's fall campaign.
According to Jaggers, she told Miller she had to stop the
"loud abusive talking," which "could be heard way across
the room," and that "I don't mind you talking but keep
your voice low and cut the loudness." Jaggers denied ask-
ing Miller anything about the Teamsters, or saying any-
thing about the union signs Miller had worn during the
election.
Miller, concerned that she had been receiving a number
of warnings, saw a union representative, Ferris, and, appar-
ently pursuant to his advise, "started writing down things
that had happened to me and getting people to sign them
that said I had been harassed and I called on some of the
girls at their homes; I called on some on the phone, to get
the statements signed, and I did some at work." This was
"around the 20th and 21st and 22nd." On January 20. em-
ployee Edna Spears, who had accompanied Miller on her
visit to Ferris, called Mary Jaggers and told her about
Miller's activities.3 Jaggers also received similar reports
2 the significance of the date lies in determining what occulrred J.Inuars
8, as will be discussed later.
1 aggers and Spears agree that this conversationll occurred Jaggetrs how-
from a number of employees, the next day, to the effect
that Miller was getting written statements from employees
"who felt that they had been picked on at Dickey-John."
Jaggers testified that she mentioned this to a fellow fore-
man, Mario L.ymer. but did not inform Semanik or any
other higher authority of the Company of this until Janu-
ary 26.
According to Jaggers. four employees, Stouffe. Bell, Lee,
and Koenig, complained to her the afternoon of January
24 that Miller was "being too loud and everything being
disrupted. no one could concentrate on their work." Jag-
gers reported this to Semanik that same afternoon. And
Semanik told Jaggers that afternoon that he was going to
talk to Miller and give her a warning. Jaggers testified that
the warning was given because of Miller's "running, being
extremely loud, everyone was being disrupted, they could
not work; they were sitting and talking instead of working,
production was going downhill because of the lack of ev-
eryone sitting around and listening to what Patty was say-
ing." She added that the matter "had been building for
approximately a week," with various foremen complaining
to Jaggers about Miller.
Semanik testified that he decided to give Miller a warn-
ing about a week earlier, but wanted to wait until Bill Lenzi
returned from an out-of-town trip. The complaints relayed
to him by Jaggers on the 24th in effect triggered the timing
of the warning that had already been discussed concerning
Miller.
The morning of January 25, Miller was called into the
office to meet with Semanik and Jaggers. Semanik told
Miller that there had been complaints about her. that she
had dropped morale at the Company, and was disre-
spectful, that people could not concentrate on their work
because of her loud outbursts. He also told her that her
attendance was poor, with Jaggers then commenting that
her attendance had been better the past 2 weeks. When
Semanik told Miller that she never did what she was told,
Miller asked Jaggers if she had ever refused to do any
work, and Jaggers said she did not, but that she had re-
fused to stop running and talking and going to the time-
clock. Miller asked Semanik if she was being picked on
because of the Union, with Semanik replying that it had
nothing at all to do with that.4
About a half hour later, Semanik gave Miller a written
document, purportedly a summation of the earlier meeting,
which Miller read, but refused to sign. The document
reads:
I have today advised Patricia J. Miller that she is to
change her actions concerning her job, the people, and
her conduct in the Department.
She is to change her actions towards supervision,
and complete disregard for Company rules, running
eser. Iestified Ihal Spears also said sonlething It, the effect that Miller was
gong to, start callilg her at homne it scare her Spears denied that she said
this. i ian, othei staiements abohul Mliller threatening Jaggers. during their
coinsers;titin. Acco.rding to her. she mereli told Jaggers that Miller "was
going to take it upoon herself Io go to the National Labor Relations Board
about Mars if they didn't quit hassling her."
t he foregoing is based on the testimon) of all three participants. There
is ni reeal conflict. or ans signiificant discrepancy, involved.
144
DICKEY JOHN CORPORATION
etc., also her absenteeism. (She has been warned be-
fore).
I reminded her of the morale of the Department,
which has gone down in recent weeks. Also the quality
and quantity which has gone down.
I informed her of mans complaints coming fronm
people in the department. about being unable to con-
centrate on their job due to loud outbursts of talking
and laughing. I told her that her foreman had warned
her of this. I told her that the rest was up to her if she
was to improve, she was to begin now.
The final summation was she is to improve her ab-
senteeism, her deportment to her job and members of
the management team as it will not be tolerated. Out-
bursts will be dealt with if thes occur again. L)iscipli-
nary action will be dealt with if they occur again. Dis-
ciplinary action will be given if no improvement is
noted-the severity of which will be determined be the
type of rule infraction.
The document. which was entitled "Performance Re-
port." was signed by Semanik as supervisor. Jaggers as
foreman, and Lenzi as division superintendent. and con-
tains the notation on the bottom "Patty refused to sign this
document."
That same morning, whether before or after Miller was
called in not being clear in the record. Jaggers orally
warned Edna Spears and Karen Malone about their loud
talking. Also on the morning of January 25. Lenzi spoke
with employees Doris Bell and Lois Koenig. Both employ-
ees repeated earlier complaints about Miller. and both. at
Lenzi's request, signed statements. Bell's statement stated
in essence, that Miller was "constantly causing distraction
and lowering of quality due to her need for attention con-
stantly," and asked that action he taken to change that. or
"remove Patty from the area." Koenig's statement said that
Miller "attempts to force her feelings and opinions on
others in the area. I will back up my foreman. Marx Jag-
gers. Patty Miller does show disregard for Dicke)-John."
Discussion
B. The Alleged 'iolations on January 8
The complaint alleges that on January 8. 1977. Respon-
dent violated Section 8(a)( I) by Jaggers' interrogating an
employee (Miller), about her union activities, and by Jag-
gers' criticizing an employee (also Miller) for engaging in
union activities, and forbidding her from engaging in such
activities. The General Counsel's case rests on Miller's ver-
sion of what occurred. Supporting her version. argues the
General Counsel, is the fact that the day before Miller had
engaged in the small demonstration at the meeting ad-
dressed by the Company president, this giving a context to
Jaggers' asserted remarks. As noted above, only Miller
placed this meeting as having occurred January 7. Seman-
ik, who was specifically asked when the meeting occurred.
placed it as a week later, on January 14. And Lenzi. while
testifying about that meeting, mentioned the date as being
January 14. Neither Semanik nor Lenzi was cross-exam-
ined about the date. I found both to he credible witnesses,
and believe that Miller must have been mistaken as to the
date of that meeting. That being so, there would have been
no reason at all for Jaggers to ask Miller, out of the blue, so
to speak. if she was campaigning for the Teamsters (or any
union) the da, before.
Even had the meeting occurred on January 7, it does not
make sense that Jaggers. who knew full well that Miller
was an ardent Grain Millers supporter, would ask her if she
wias campaigning for the T eamsters. Jaggers may not have
seen the cards that Miller was offering people at the meet-
ing (assuming it swas on January 7), but the context of
Miller's actions with a Grain Millers card being shown
on the screen at the time- --combined with Miller's known
advocac, of that union. would have made it evident to
Jaggers that Miller had not suddenly switched allegiance.
and to a union that had never been and was not in the
picture. In denxing that she asked Miller about organizing
for the I eamsters, Jaggers tetified, "I did not have to ask
her, she made it obvious that she was for the last Union. It
was irrelevant to me as to what she was for or what Union
now." This, as I have indicated, is obviously true. I con-
clude. accordingly. that Jaggers did not interrogate Miller
on January 8 (or at an, other time).
As to the rest of the conversation between Miller and
Jaggers on January 8. 1 am again constrained to credit
Jaggers over Miller. Jaggers testified that Semanik told her
he had observed Miller engaged in loud and abusive talk-
ing. while Jaggers was out of the area, and that was what
occasioned her talking to Miller. Even if the word "union"
was mentioned. there would be nothing wrong in admon-
ishing an emploxee to keep her voice down. I also do not
believe that Jaggers would have been talking to Miller on
January 8 about her wearing union signs during the union
campaign and indicating her displeasure at that, when
there is no suggestion that Miller was ever criticized for her
activities. including the wearing of union signs, during the
election campaign. and there is nothing in the record to
suggest that Miller had worn any such signs since Novem-
ber 1976h. or contemplated doing so. In short, I find that
nothing occurred on January 8 to give rise to any violations
of Section 8(a)( I) by Respondent.
C. The Alleged lViolations on January 25
The principal issue in this case is whether the oral and
written warnings given to Miller on January 25 were moti-
vated by Miller's protected or union activities. The General
Counsel's theory is that the warning was "a direct retalia-
tion to Miller's efforts to obtain support from coworkers
for her intended complaint with the NLRB against Jag-
gers." and was also based in part on the complaints of
Miller's coworkers, which complaints were themselves mo-
tivated by Miller's protected activity.
The General Counsel finds support for this theory in the
fact that Miller's union activities were well known to Re-
I Inl nlot unllnlld fll of sOllW. discrepancles in Jaggers' tlesinmons, and
nither .argtilrumen aidsranced bh the General ( ounsel for discrediting Jaggers.
I am satisfied that the, resulled from her tesilfsing 6 months after Ihe events
in question rather than fronm ins deliber.lte attempt to dlsenlhle I ndeed. sone
of her conlusion about diates s .s. ;is I I ohsrsed her testlfslng. nl lre i keeping
ith the former than Ihe latter
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, both before and after the election, that Respon-
dent manifested its animus toward unions by the speech of
Lamphier,6 that the warnings came hard on the heels of
Miller's protected activities: viz, (I) her demonstration at
the Lamphier meeting, (2) her solicitation of other employ-
ees' support for a contemplated NLRB charge against Jag-
gers, and (3) her talking about unions and criticizing Re-
spondent's working conditions and policies on January 24,
triggering the complaints of her fellow workers.
Had Miller, in precisely the circumstances described,
been discharged instead of merely given a warning, I prob-
ably would have found a violation of the Act for substan-
tially those reasons advanced by the General Counsel for
finding that the warnings violated the Act. Paradoxically,
in a case such as this, it is more rather than less difficult to
demonstrate an unlawful motive for a warning than for a
discharge. The very severity of a discharge, when for a
relatively innocuous offense, may well suggest that the of-
fense is seized upon as a pretext for another, and invidious,
motivation. Given the offense, however, even a relatively
mild and innocuous one, the issuance of a mere warning,
entailing no loss of pay or seniority or other employee ben-
efit, suggests a punishment more fitting to the offense.
When, as here, the alleged discriminatee (Miller) admited
at least part of the "offense," 7 admitted also that she was
warned by Jaggers a number of times about loud talking,
and with the testimony of other witnesses clearly estab-
lishing that she was "guilty" of loud talking, it is difficult to
infer that the warning was not motivated by the asserted
offense.
It is true that the timing of the January 25 warning, rela-
tive to Miller's activities in getting signatures to support her
complaint, was suspicious. It is also true that some of the
complaints about Miller's loud talking stemming from her
fellow employees were probably based as much on the con-
text of her talking as on its decibel count.9 But the question
here is what motivated Respondent, not what caused the
complaints. Loud talking does not become "protected"
merely because its subject matter is unionism. Thus, the
factors cogently marshaled by the General Counsel that
would permit, if not compel, an inference of unlawful moti-
vation had Miller been discharged, do not suffice, in my
view, to establish a violation when viewed against the fact
of a warning for offenses that did occur.
My conclusion in this respect is also based upon the fact
that two other employees, Spears and Karen Malone, were
orally warned by Jaggers on the same day, Janaury 25, for
loud talking. Although the General Counsel argues that
6 In this respect. whether the speech was January 7 or 14 would make no
difference.
? She testified that she continued her "running" after Jaggers had warned
her to stop on a number of occasions.
8 Whether or not Jaggers informed higher management of Spears' has rig
so told her, for a supervisor's knowledge is imputed to a respondent.
That the context of her conversations at the work table "as unionism
and criticism of plant working conditions is clear. And. based on the de
meanor or some of the witnesses as they were in effect repudiating affida its
earliergiven tocounsel fortheGeneral Counselitis apparent that the prounion
talk bothered these employees.
these warnings were of "a different degree and type than
that administered to Miller and was simply one more effort
to 'cover' itself from any possible charge of discrimination
against Miller." I cannot agree. First, Miller had, contrary
to Spears or Malone. a history of having been warned for
similar conduct. More importantly, I cannot believe that
Semanik, I.enzi, or Jaggers herself, who gave the two oral
warnings, could have been so versed in the nuances of un-
fair labor practice proceedings, or so prescient as to per-
ceive the need at the time, as to contrive a "cover" for a
written warning to one employee by deliberately warning
two other employees for a similar offense on the same day.
I also regard as significant the lack of any unfair labor
practices, or objections, or even a suggestion of any unlaw-
ful conduct by Respondent, during the preelection cam-
paign leading up to the election of November 1976 lost by
the Grain Millers by a 417 to 114 vote. This is not to sug-
gest that every company is entitled to one free violation of
the Act. Its significance lies in the fact that Miller was one
of the most, if not the most, active union proponent during
that campaign. And if the "heat of battle" did not engen-
der any' unfair labor practices directed at her or anyone
else, it appears unlikely that the Company, with a rather
decisive "victory" in the election, would regard Miller's
continued support of the Union, or any other of her activi-
ties, as suddenly calling for action designed to curb such
activities.
Respondent concludes its brief by arguing that even if a
violation should be found, Miller "was the only employee
affected by the Company's alleged malfeasance, and the
most severe consequence to her is that one more warning
notice is in her confidential personnel file. She suffered no
loss of pay. She was not held up to ridicule by the Compa-
ny to her fellow employees.... Thus, even if the Judge
were to find, contrary to fact and law that Dickey-John
committed the isolated unfair labor practices with which it
is charged, remedial action would be unwarranted, and in-
deed out of proportion to the de minimis violations." This
argument, apart from its validity where I too have found
the violations alleged, suggests still another basis for not
finding them. That is, had the Company been motivated by
a desire to chill any further efforts by its employees to seek
union representation, it would surely have at least given the
employees some food for thought by disciplining Patricia
Miller in a more public way, or by some form of discipline
more severe than a warning.
For all the foregoing reasons, I conclude that Respon-
dent has not violated the Act, and issue the following rec-
ommended:
ORDER I0
The complaint herein is dismissed in its entirety.
") In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National L abor Relations Board. the findings.
conclusions. recommendations. and Order herein shall, as provided in Sec.
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
146