Planters Peanuts

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 131 (N.L.R.B. 1977)

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.
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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
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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
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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