Joseph Schlitz Brewing Co.

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 799 (N.L.R.B. 1974)

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.