Island Container Corp.

National Labor Relations Board - Board Decisions

Mar 8, 1979

240 N.L.R.B. 1298 (N.L.R.B. 1979)

1298 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Inland Container Corporation and Fred D. Jones.
Case 32-CA 736
March 8, 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(; ANDI) MIMB RS JNKINS
ANI) TR I SI)AI. I
On November 14, 1978, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a response and brief in response to the
General Counsel's exceptions, as well as a cross-ex-
ception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I The question of whether Respondent deprived Charging Parit Jones of
his rights under NL. RB. . J We'ingarten. rti 420 U.S 251 {1975). turns
solel) upon whether Jones' assertion that he requested union representation
before attending the October 27 insesgatorv intervievt and his accoiunt iof
that nterview are to he redited. ilhhoiugh we adlopt the Adminilstratsle
law Judge's l)ecislon to credit Respondent's witnesses regardig that Ilcl-
dent, and thus ito discredit the ('h:rging PaIrts's ,ersion. we find it necsalls
to disavow certain of the Administratise l.aw Judge's comllmenits lmade
support of his credibilit\ findings.
We have often stated that proper credihilt' resolutions ilal be blsced on
"the demeanor of the witnesses on the weight f the evidence. esilhb-
lished or admitted facts, inherent probabilities. and reasonlable inferences
drawn from the recolrd as a whole." See, eg.. El Rarnho l. arker. 235 NlRB
468 (1978): Wfarren I R,e( iavstong Inc. d h I VI& '(Cuittgis 231 Nl.RB
912 (1977). And. rdinaril,. we accord considerahle deference to the redi-
bility findings of Administri tive l.aw Judges. prticularl?, here those filnd-
ings are based on demeanor Sl'taindrd I)ri [ll/ I'ridtl . I1.. 91 NI.RB
S44 545(1950), enfd. 188 .2d3h2(3d('ir. 1951) But that snot it osa that
we will adopt credihili ty resolutions which are so "vague or inherentl i ll-
plausible" or so coitnlrrv t)i the record eidence as t convince us thalt I
Administrative Law Judge relied on "''entirely irrelevant factors" i reaching
a decisioll. See El Rainchi klariet, lura; liHid/ict tanitfi ting ( ri, 108
NLRB 1614. 1643 45 (1954) Rather. in such cases we ill, if neces.sar.
make our own credibhility findings based on our Id nllo resew f te recold
Id
In crediting Respondent's witnesses' testimonY that Jones at no time prior
to r during the Octhber 27 interview requested unionl representatllil. io-
gether with their version of that meeting. it appears the Administrative l.aw
Judge relied largely n the demeanor of the witnesses, particularly Superin-
tendent Ball. In addition, however. he appears I) have engaged in gratlitous
speculation about Jones' motilvatin and state of mind. ior example he
suggested that Jones ma have frgitten to request uniln represenitation
because of "fatigue. distraction. or carelessness" arising ou of his aggressie
but apparently unsuccessful filing, in his capacity as union steward. of nurl-
erous grievances during that period. And the Administrative l.aw Judge also
indicated that Jones' ersion was unbelievable "''from the standpoint of ordi-
nary management functioning in a large structure business " I he attempts
of the Administrative I.aw Judge at lay analksis of Jones' itivati n a tind d
state of mind do not appear to have an', support in the record Nor does his
speculation regarding "ordinary management functionting" rise o the leIel
of inherent probabilities.
Nevertheless, inasmuch as the Administrative Law Judge's redibility
findings appear to have been based, t least il part, oil demeanor, we shall
accord them our traditional deference See Sitndardr l Dri I;Vaill Prodiucts.
Inr.. supra And since our review f the record does not colsnvince us that
these resolutions are contrars to the clear preponderance iof the eidence.
we shall adopt them. Accordingly, in agreement with the Administrative
Law Judge. we dismiss the complaint ill its entirety
240 NLRB No. 187
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 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 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.
DECISION
SIAIEMENI O(F HE CASF
DAVID G HEILBRL N Administrative Law Judge: This
case was heard before me in Oakland, California, on Au-
gust 3, 1978, based on a complaint alleging that Inland
Container Corporation, herein called Respondent, violated
Section 8(a)(1) of the Act by requiring Fred D. Jones to
participate in a disciplinary interview, assertedly without
requested union representation, by thereafter imposing a
disciplinary suspension on him, and by otherwise threaten-
ing him with discharge because he had filed unfair labor
practice charges against Respondent or engaged in other
protected concerted activities for the purpose of collective
bargaining or other mutualaid or protection.
Upon the entire record, my observation of the witnesses,
and consideration of post-hearing briefs. I make the fol-
lowing:
FINDINGS OF FA(I AND CON(CLUSIONS OF LAW
Respondent is party to a 2-year collective-bargaining
agreement effective from July 1977 with Newark Local No.
819, United Paperworkers International Union, AFL-
CIO-CLC, herein called the Union. Jones is employed as a
machine tender of the midnight shift and a duly designated
job steward functioning for the administration of this
agreement.' On Thursday, October 20, 1977, Paper Mill
Superintendent Paul Ball left instructions for Jones to stay
over the next morning to meet with him concerning a
pending grievance due to be answered.2 To Ball's surprise,
Respondent is a corporation engaged in Newark. (alifornia. in the man-
ufacture of corrugated shipping containers, annually selling and shipping
gioods or services salued in excess of $50(X)i directly to customers located
outside the State of (alifornia. while purchasing goods or services valued in
excess of $50()0() directly from suppliers located outside the State of ('ali-
fornia. I find that Respondent is an employ'er within the meaning of Sec.
2)6) and (7) of the Act and that the uinion is a labor organization within the
meaning of Sec 2(5) of the Act
All dates hereafter are in 1977. unless shown otherwise. Read any date
referring to the I I p m. 7 alm. midnight shift as associating to the calendar
INLAND CONTAINER CORPORATION 1299
Jones did not stay over. After ascertaining that the message
apparently reached him, Ball went to the plant at 7 a.m., on
Saturday, October 22, to accomplish the necessary griev-
ance meeting in a timely manner. Coincidentally, the Octo-
ber 21 shift was one on which Jones failed to take certain
consistency and freeness tests ordinarily required of the
machine tender in monitoring product quality. While fully
aware of the need for such tests, Jones found that on the
particular shift of October 21 neither of the individuals
who might relieve him so that the tests could be run was
available. These were his machine back tender, otherwise
busily occupied through the shift, and his shift foreman,
otherwise tied up with special operating problems on the
other paper machine. Accordingly, Jones did no more than
continue tending his machine, as he understood this was
his only recourse absent qualified relief.
Jones testified that following the inconclusive meeting
on the grievance with Ball on October 22 he spoke briefly
with other employees, and, when he was about to leave, he
was approached by Ball, who briefly asked why customary
tests had not been run according to the shift report. Jones
explained himself and left. This version is denied by Ball,
who testified to not even learning tests were not taken until
it was pointed out to him the following Monday by his
superior, Paper Mill Manager John Van Kerkhoven. Man-
agement launched an investigation of circumstances, in-
tending to include information from Jones before making a
final decision on the matter. Ball again scheduled Jones to
stay over on October 26 to discuss events of the 21st but
upon arriving at the plant gate around 7 a.m. that day saw
Jones in the process of leaving. Ball testified that he ap-
proached him, pressed him to stay as expected, but was
refused by the seemingly downcast Jones. By this time
General Manager Edward Somers was aware of the unre-
solved investigation, and he asked Van Kerkhoven to sum-
mon Jones for a meeting on the afternoon of October 27.
Van Kerkhoven testified to doing so, although Jones be-
lieved the call came from Ball. Further, Jones testified to
telling the caller that, although it was his day off, he plan-
ned to pick up a paycheck and would attend the requested
meeting around midafternoon. Ball, consistent with Van
Kerkhoven's testimony, denied making the call and said he
knew only that Jones was expected around 3 p.m. for a
front-office meeting, at which Ball should be present.
Jones testified to appearing at the paper mill for his
check that afternoon, and, seeing Van Kerkhoven, he
walked with him the approximately 200-yard distance to
where the front offices were located. In the course of this
transit, Jones testified to twice asking Van Kerkhoven for a
union representative with respect to the imminent meeting
(which was expressly to be concerned with failure to take
tests) and being told that one was neither needed nor avail-
able. Van Kerkhoven denies this, testifying instead that he
first saw Jones the afternoon of the 27th just outside
Somer's office and directed him, upon inquiry, to an up-
stairs conference room where the planned meeting was to
be held. Van Kerkhoven expressly denies walking the de-
scribed distance between buildings and, more significantly,
day which begins such a shift.
that Jones made any request for union representation prior
to commencement of the meeting.
Once Somers, Van Kerkhoven, Ball, and Jones assem-
bled in the conference room, Somers initiated the discus-
sion by noting that it was unusual for him to be there but.
believing Jones has exhibited discourtesy toward supervi-
sion in two recently scheduled meetings, he (Somers) want-
ed to be personally present against this background of
changing "stories" by a job steward. Discussion then
flowed primarily between Van Kerkhoven and Jones, as
the former emphasized the technical and business reasons
for the tests and the latter reconstructed circumstances of
the October 21 shift, wherein circumstances kept him from
completing this routine. Jones recalled other remarks of
Somers as this meeting progressed, including that the poli-
cy of having machine relief while running the test was tak-
en too literally, that this was a reason joint union-manage-
ment meetings advocated by a former general manager
were unwarranted of continuation, that at the rate Jones
was going he would not be at the plant longer than a year,
and, referring to what appeared to be a personnel file, that
Somers did not appreciate labor board charges as shown
therein when the collective-bargaining agreement set forth
a grievance procedure. Jones added that Somers referred to
a broken meeting date on October 21, musing about
whether it was done in spite, argued the philosophical va-
lidity of the Weingarten case, 3 and threatened to fire Jones,
notwithstanding strictures of law, with the gleeful objective
of knowing it would take him time and effort through for-
mal proceedings to win reinstatement and backpay. All
management witnesses deny any of the collateral remarks
attributed to Somers, stating only that the meeting con-
cluded with advice to Jones that all necessary facts would
be secured. On October 31, in the presence of the union
president, Jones was called to a meeting and given a I-day
suspension with reprimand for claimed dereliction of duty
on October 21 respecting quality control tests.
This case focuses on the investigatory interview of Octo-
ber 27 and utterances claimed to have been made at that
time. The now commonly known doctrine of Weingarten
applies through principles recently reiterated in Glomac
Plastics, Inc., 234 NLRB 1309, 1310 (1978), where the
Board held:
Section 7 of the Act guarantees to employees the right
to "engage in ... concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion." The Court majority in Weingarten agreed that
the action of an employee in seeking to have a union
representative present at an investigatory interview
"clearly falls within the literal wording of §7." The
employee, said the Court, is clearly seeking the "aid or
protection" of a union representative against a per-
ceived threat to the employee's job security.
Here, the front office interview was unprecedented as to
Jones, and by any version of the evidence he knew well in
advance of its purpose. The only real question, and key
factual issue of the case, is whether, as alleged, he triggered
the special protection of Weingarten by a timely request for
' I..R H J WeinSgurten, I, 420 S. 251 (1975).
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation. A direct contradiction in testimony is pres-
ent on this point, from which I discredit Jones. This is done
not because his recollection differs from several adversaries
nor, with the exception noted, particularly on demeanor
grounds. Rather, a composite view of the case, of all testi-
mony rendered, and of inherent probabiliites is sufficiently
persuasive to disbelieve Jones' claim that he twice verbal-
ized a request for union representation shortly before the
meeting began. The one witness who impresses highly from
the standpoint of composure, candor, and spontaneously
genuine recall is Ball. I fully credit his testimony, contain-
ing as it does a denial that Somers made the statements
attributed to him but more importantly as a key to unlock-
ing another factual resolution, that it was not he who tele-
phoned Jones the morning of October 27. From this, other
portions of Jones' testimony become suspect, both from
the standpoint of slanting the truth to serve self-interest
and from that of ample reason to believe Jones succumbed
to suggestibility arising from his many challenges to Re-
spondent's implementation of the contract.4 The contend-
ing versions of truth are quite graphic in this case, far be-
yond the ordinary situation of differing recollections from
dialogue. Jones and Van Kerkhoven are equally positive
that they did and did not, respectively, walk together the
"one and a half city blocks" from the manufacturing of-
fices of the paper mill to Respondent's main front office
area. Since Ball proceeded independently to the meeting
and Somers was in his own office until moments before it
started, the other two are the only ones to effectively de-
scribe what happened. I am satisfied that Jones has a con-
fused memory on the point or was tempted to concoct tes-
timony better suited to his needs. I see the situation as one
in which October and thereabouts was a difficult time for
Jones as he grieved frequently under terms of a new con-
tract against tough management stances extending back to
out-of-state corporate headquarters. In this instance affect-
ing himself (as did other grievances of that general time), I
believe that fatigue, distraction, or carelessness led him to
suffer the investigatory interview of October 27 without
seeking representation of the Union. Apart from these con-
siderations, a view of the case unfavorable to Jones is quite
appealing from the standpoint of ordinary management
functioning in a large structured business.5 Quality control,
4 Jones was an active shop steward and filed several grievances during a
material span of time prior to these events. The record contains no facts to
contrast with other stewards at these premises nor to particularly character-
ize Jones. other than that he customarily wrote at length as to the basis of
each grievance and viewed art. XXXIV. Effective Law (a routine separabili-
ty clause), as the express embodiment of public law to which Respondent
must submit in labor relation matters. Respondent sought to impeach Jones
on the basis of several grievances immediately prior to October in which
external statutory references were made. This is to be contrasted with the
grievance he filed over instant facts, which was silent as to such a claim in
general or the Weingarten doctrine in particular. I give no weight to this
configuration, particularly because General Counsel offered another griev-
ance concerning subsequent events, which also had no reference to the fre-
quent perception of Jones that an asserted contract violation also often ran
afoul of the National abor Relations Act, as amended.
5General Counsel analyzes the credibility issue with an argument that
Jones' testimony was thoughtful, consistent, and unconfused. I rate this as a
grossly optimistic view of how Jones might impress. because his observable
demeanor as a witness showed somewhat artificial interest in truth. Addi-
tionally, General Counsel faults Respondent's witnesses on grounds that
on either a distant or a direct level, is a constant concern of
officials from plant manager to functional overseer.
6 Here,
a particular dereliction had occurred against the recent
background of broken appointments that threatened integ-
rity of ordinary civilities in labor-management dealings.
Somers hinted at this in describing Jones as a "problem"
employee but carefully distinguished this appraisal from
the fact that he had filed frequent grievances. A described
company policy, free-floating and to be applied with ordi-
nary supervisory judgment of those in authority, was to
provide union representation during an investigatory inter-
view upon request and always when discipline was to be
rendered. Disciplinary action, as a general matter, was tak-
en only after "some sort" of investigation, not necessarily
exhaustive in terms of contacting all persons with informa-
tion. This is precisely the classic sort of authority manage-
ment retains in operating rights phraseology of a collective-
bargaining agreement (here art. I, General Purpose), and,
because it might be exercised capriciously, grievance mech-
anisms have evolved as a countervailing force.7
Paragraph Vl(b) of the complaint independently invokes
Section 8(a)(l) of the Act, but again on the basis of Jones'
testimony concerning remarks made during the investiga-
tory conference. Somers left no doubt from his presenta-
tion that, as a newly installed general manager, he expected
subordinate supervisors to fulfill delegated responsibilities
in all but unusual cases. What he did emphasize, and per-
suasively so, was that he allocated some time from his day
on October 27 to attend this meeting and lend the signifi-
cance of his presence to impress Jones that meetings
(meaning those necessary to the smooth functioning of the
grievance clause) must be fulfilled according to commit-
ments in the absence of extraordinary justification. I doubt
that such resolve escalated to anger or spite, as described
by Jones, both because of the respectably convincing testi-
mony of Somers, Van Kerkhoven, and Ball that it did not
and because Jones imagined such remarks in an effort to
offset his own progressively growing disciplinary record,
his notable lack of success in terms of meritoriously raising
grievances, and a sometimes natural inclination to find
ways of offsetting being outnumbered. I am satisfied that
any argumentative statements by Somers referred only to
their pertinent denials were starkly identical and that "minor" inconsisten-
cies of detail were shown. Upon consideration of points made. I find any
inconsistency to be so minor as to be insignificant. The internal details of
when to expect Jones during the afternoon of October 27 are ordinary daily
modes of business communication, while the asserted variance in testimony
by Somers as to how and with whom he reached the second-floor confer-
ence room is but a picayune distortion of speech patterns. As to asserted
"failures of recollection" by Respondent's witnesses, this touches only a
typical human guardedness and is routinely offset by Jones' own concession
that he "can't remember the exact words."
6 On this subject, a further harmony in the testimony of Ball is shown. He
was not contradicted in describing that his workday ordinarily starts with a
30-45 minute tour of the mill before sitting down to review shift reports.
Considering this, the fact that Jones was free to leave the plant immediately
following the grievance disposition meeting on October 22, and the fact that
Ball was present that morning on a day off only to render such disposition.
it is wholly unlikely that the pertinent shift report came to this attention in
time to accost Jones on that point. Again, this conflict between the persua-
sive Ball and the unreliable Jones makes the accepted version of critical
facts even more compelling
7Admittedly, Jones was reprimanded twice in the prior month of Septem-
ber for separate offenses, and on both occasions union representation was
provided him on request.
INLAND CONTAINER CORPORATION 1301
Jones' deteriorating value as an employee and note that
little reason existed for Somers to make reference to the
remote unfair labor practice charge of 1975-76. It may be
granted that Jones' personnel file was available during this
investigatory conference; however, this does not establish
the claimed utterances. In truth, any visible file, personnel
or otherwise, was more likely a source of the fanciful mem-
ory which I declare has gripped Jones.
Accordingly, I render a conclusion of law that Respon-
dent has not violated the Act in any manner alleged and
issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
In the event no exceptions are filed as provided hb Sec 102,46 of the
Rules and Regulations of the National l.abor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided n Sec
102.48 of the Rules and Regulations. be adopted h the Board and become
Its findings conclusions, and Order, and all objections thereto shall be
deemed alied for all purposes