Pendleton Flour Mills, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 24, 2005

36-CA-009601 (N.L.R.B. Mar. 24, 2005)

JD(SF)–18–05
Pendleton, OR

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

PENDLETON FLOUR MILLS, LLC.

and Case 36-CA-9601

BAKERY, CONFECTIONARY, TOBACCO
WORKERS AND GRAINMILLERS LOCAL 98G,
affiliated with BAKERY, CONFECTIONARY,
TOBACCO WORKERS AND GRAINMILLERS
INTERNATIONAL UNION, AFL-CIO

S. Nia Renei Cottrell, Esq.,
of Portland, Oregon, for the General Counsel.

Adam S. Collier, Esq.,
of Portland, Oregon, for the Respondent.

DECISION

Statement of the Case

JAMES L. ROSE, Administrative Law Judge: This matter was tried before me at
Pendleton, Oregon, on December, 7, 2004,1 upon the General Counsel’s complaint which
alleged that the Respondent discharged James Pace in violation of Sections 8(a)(1) and (3)
of the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq. The Respondent
is also alleged to have threatened employees with plant closure in violation of Section
8(a)(1).

The Respondent generally denied that it committed any violations of the Act and
affirmatively contends that Pace was discharged for good cause – that he had refused to
perform his assigned job.

Upon the record as a whole, including my observation of the witnesses, briefs and
arguments of counsel, I hereby make the following findings of fact, conclusions of law and
recommended order:

1 All dates are in 2004, unless otherwise indicated.
JD(SF)–18–05
I. Jurisdiction

The Respondent is an Oregon corporation engaged in the business of operating a
flour mill, in connection with which it annually sells and ships goods valued in excess of
$50,000 directly to points outside the State of Oregon, and sells and ships goods or
provides services to customers within the State of Oregon valued in excess of $50,000,
which customers are engaged in interstate commerce by other than indirect means. The
Respondent admits, and I conclude, that it is an employer engaged in interstate commerce
within the meaning of Sections 2(2), 2(6) and 2(7) of the Act.
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II. The Labor Organization Involved

Bakery, Confectionary, Tobacco Workers and Grainmillers Local 98G, affiliated with
Bakery, Confectionary, Tobacco Workers and Grainmillers International Union, AFL-CIO
(herein the Union) is admitted to be, and I find is, a labor organization within the meaning of
Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. The Facts.

For many years the Union has represented a unit (of now approximately 25) of the
Respondent’s Pendleton mill employees and has had successive collective bargaining
agreements covering those employees. An agreement between the parties (a portion of
which is in evidence) was effective until August 31, 2002. The parties extended it for one
year and continued negotiations, which concluded with an agreement sometime in June.

Apparently unhappy with progress of negotiations and the Respondent’s bargaining
position, on April 3 some members of the Union had a rally in a local park to generate public
support for their cause. This resulted in a local newspaper article on April 4 for which Jim
Pace, the shop steward, and two other employees were interviewed and quoted. On April 7,
the local newspaper had another article concerning charges the Union had filed with the
NLRB regional office, wherein the Union alleged the Respondent attempted to decertify the
Union. Again Pace was interviewed and quoted.

Pace was the regular truck driver, with Danny Brewer as his backup on those
occasions when Pace was unavailable. One of the regular delivery/pickup stops made by
Pace (or Brewer) was nearby prison where the Respondent had arranged to have its totes
cleaned in the prison laundry. These are large sacks which hold about 2000 pounds of
flour.
Though Pace did not testify, all witnesses agree that he never drove his truck onto
the prison grounds. In fact he steadfastly refused to do so because, as his supervisor
Jeanne Scott testified, “his brother used to work out there, and his brother had been barred
from out there, and he felt that it was an unjust barring and people who still worked out there
were responsible for his brother being fired, and he would not go in there.”

When Pace was to make a delivery (or pickup) of totes at the prison, he would call in
advance, get an appointment and when he arrived, one of the guards would come out and
load or unload the truck. This was not only satisfactory, but was preferred by the guards.
Guard Lawrence Steinmen testified that trucks entering the prison grounds must be
searched and this takes about 20 minutes. Thus, for the tote pickup and deliveries, it is
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much faster and easier for the guard to come outside. Though Pace would sometimes have
to wait to be unloaded, apparently this was generally offset by the time he did not have to
spend having his truck searched.

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There are two guards in the shakedown area were deliveries are made. One can go
outside if the other is in the area to watch the prisoners. On April 19, Steinmen’s fellow
guard was absent, thus when Pace made the call for an appointment, he was told that he
would have to drive the truck onto the grounds. Pace went to Scott and “said he had called
out there and talked to the laundry, and they said that there was only one man working in
the laundry that day, and he couldn’t bring the totes to the back gate, so he would have to
come into the prison to pick them up, and Jim said he wasn’t going in the prison to pick them
up because of what they had done to his brother. So he just told me that I would need to
make other arrangements to have someone else go pick them up.” She told Pace that “we
did didn’t have another available truck driver at that time, and so he would have to go do it. .
. .” Scott testified that she and Pace went back and forth on this, and finally, after checking
with her superiors, she suspended Pace. Later in the day, Brewer in fact made the prison
run, though in doing so, the line on which he was working had to be shut down.

The Respondent’s management then undertook to investigate the matter, which
included an interview with Pace two days later. During this interview, Pace said that Scott
had misunderstood him. He said then that the reason he would not make the run was
because he did not have a security clearance and it would have taken 24 hours to get one.
(Actually, according to Steinmen, a clearance can be obtained in 20 minutes, though prison
officials would prefer a full day.)

Because of Pace’s adamant refusal to make the prison pickup and then his
misstatement about the reason he gave Scott, he was discharged.

B. Analysis and Concluding Findings

1. The Discharge of Pace.

The General Counsel argues that the asserted reason for discharging Pace was a
pretext to disguise the Respondent’s true motive a) because he had refused to drive into the
prison for at least several months and b) in any event, he could not have gone onto the
prison grounds because he had no clearance. Therefore, asserts the General Counsel, the
true reason for ordering him to make the pickup on April 19 instead of arranging for a
substitute must have been the fact that Pace was the Union’s steward and was quoted in
the newspaper both after the rally on April 3 and in connection with filing a charge. It follows
that his discharge was violative of the Act. For the following reasons I reject this argument.

Although the prison guards had accommodated Pace’s desire not to set foot on the
prison grounds, the credible testimony Steinmen leads me to conclude that such was also
an accommodation to the guards. And from the testimony of Steinmen, I conclude that on
April 19, it was necessary for the Respondent’s truck to drive into the prison to make the tote
pickup. Thus ordering Pace to make the run was not really a change in the practice he had
been accustomed to but a change in circumstances. Although in the past Brewer
sometimes made the prison run, it is undisputed that on April 19, at least until after Pace
was suspended, Brewer was unavailable. Further, Pace was not qualified to replace
Brewer, according to the credible testimony of plant manager Nathaniel Neufeld. When later
in the day Brewer in fact went to the prison, the production line on which he was working
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was shut down. Further from the testimony of Scott, whom I credit and whose testimony is
undenied, never before had Pace refused to make a run because he would not go on the
prison grounds.

The General Counsel argues that because Pace was known to have an
“idiosyncratic reason” for not going on the prison grounds, for the Respondent to order him
to do so on April 19, and its discipline of him for refusing, was a pretext to disguise its true
motive. Also in support of the pretext argument, the General Counsel stated, “Despite her
full knowledge that Pace did not have the required background clearance and consequently
could not enter the prison, Scott refused to allow Brewer to make the run.” (General
Counsel’s emphasis.)
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No doubt Pace’s idiosyncrasy was known, but his refusal to enter the prison was as
much to the benefit of the guards as to suave his grudge. Further, there is no evidence that
Pace’s feelings were ever before an issue, or that someone had to fill in for him when he
refused to go on the prison grounds. Though there is testimony that Brewer made
deliveries, perhaps as often as once a week and he testified that only he of the truck drivers
had a security clearance, Scott testified that Pace in fact had never actually refused to make
a run because of his resentment. On this I specifically credit Scott and conclude that since
Pace did not testify he would have agreed.2 Finally, Pace actually could have obtained a
clearance on April 19 had he chosen to obey the order of Scott and his subsequent
argument (not made to Scott on April 19) that he had no clearance was clearly bogus.

I do not believe that ordering Pace to make the delivery on April 19 was a pretext nor
was the Respondent’s decision to discharge him for refusing to do so. Certainly the
Respondent could have relieved Pace of the duty to drive the truck to the prison, but I find
no basis in law that it had to do so – whether or not Pace was active in the Union. In fact,
during the investigation interview, according to Scott, Pace said “that he never refused to go
to the prison. He said he was just only trying to explain to me how he didn’t have the
security check.” To this Scott accused him of lying. In fact, he had made no attempt to get
a clearance prior to his suspension, but did get one the day after.

I note also that Scott made every effort to get Pace to make the run on April 19.
Such are not the actions of one trying to set up an employee for a pretextual discharge.

In addition to a lack of pretext evidence there is no evidence of animus toward the
Union by the Respondent in general or any of the officials involved. The parties have had a
collective bargaining relationship for many years, were in negotiations at the time of these
events and ultimately reached agreement. Indeed, the plant manager told Scott that Pace
could file a grievance over having to go into the prison, but he would have to obey the order.

I reject the argument that Pace was treated unlawfully because another employee
who had failed to show up for an overtime day was suspended for just one day. Scott
testified that the other employee, Greg Bach, called in to say he had tried to get a
replacement for the overtime for which he was scheduled and could not, and he would not
be in. When later meeting with Scott, “he totally admitted he was wrong, he admitted he
shouldn’t have done it, took responsibility for his actions . . . .” Conversely, at his interview

2 See, e.g., Prototype Plastics, Inc., 284 NLRB 711, 715 (1987) and cases cited
permitting an adverse inference where, without explanation, a material witness available to a
party is not called to testify.
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Pace lied, stating that he had told Scott the reason he could not make the prison run was his
lack of a clearance. I conclude the Respondent could reasonably treat these situations
differently.

Finally, I note that other employees were involved in the rally and newspaper articles
and were not disciplined in any way. Pace was active on behalf of the Union, as the
steward and one of two employees on the bargaining committee; however, there is no
evidence to suggest he would be singled out for retribution in these roles. In sum, I
conclude that the General Counsel failed to establish, even prima facie, that Pace was
discharged in violation of the Act.
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2. The Alleged Threat.

This allegation is based on a statement by human resources manager Jason Michael
to the effect that if the plant shut down, people would lose their jobs. Such was the
testimony of Jack Legore and Gene Marker and was not denied. However, it appears to
have been an observation in a context which had to do with a potential investigation of the
plant by some health and workplace agency. Apparently a week or two later, OSHA did
make an inspection of the plant.

Legore testified that Michael “made a comment that from the – I don’t know if it was
from the flier (announcing the rally but also referring to safety) or from a newspaper clipping
or something about fire marshals coming and OSHA was going to come in, and they’d end
up shutting us down.” Similarly, Marker testified: “Jason (Michael) had evidently found out
about the fliers, and he got pretty upset about it, and said that I hope Jim Pace knows what
he’s doing. He’s going to get this place shut down. And that the fire marshal and DEQ (an
agency not specifically identified on the record) was going to shut us down, and that we
shouldn’t be airing this out in public, and then he use pretty choice words to –“

I find Michael’s observation to be protected by Section 8(c) and did not contain a
threat that the Respondent would take action against employees because they engaged in
union or other protected activity. Indeed, the focus of Michael’s statement had to do with
some kind of safety complaint alleged in the flyer, and not the contract negotiations or the
rally per se. However, even if this statement by Michael could be considered a threat, it was
too de minimus on which to base a remedial order.3

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 4

3 See, American Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show),
202 NLRB 620 (1973) and cases cited.
4 If no exceptions are filed as provided by Sec.102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec
102.48 of the Rules, be adopted by the board and all objections to them shall be deemed
waived for all purposes
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ORDER

The Complaint is dismissed in its entirety.
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Dated, San Francisco, California, March 17, 2005.

____________________________
James L. Rose
Administrative Law Judge
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