Riceland Foods

National Labor Relations Board - Board Decisions

Feb 8, 1978

234 N.L.R.B. 798 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Arkansas Rice Growers Cooperative Association
d/b/a Riceland Foods and UBC, Southern Council
of Industrial Workers, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
Cases 26-CA-6591 and 26-RC-5435
February 8, 1978
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On October 5, 1977, Administrative Law Judge
Almira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
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 considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
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.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for UBC, Southern
Council of Industrial Workers, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
and that said labor organization is not the exclusive
representative of all the employees, in the unit herein
involved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
IThe General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
A hearing was held in this consolidated proceeding May 26
and 27, 1977, in Stuttgart, Arkansas. Pursuant to a petition
filed in Case 26-RC-5435 by the Union requesting an
election in a unit of checkers, a hearing was conducted on
February 1, 1977; on February 14, 1977 the Regional
Director for Region 26 of the National Labor Relations
Board issued a Decision and Direction of Election in which
he found no merit in the Employer's contention that the
checkers were supervisors and directed an election in a
voting group of checkers to determine whether they desired
to be included in an existing certified appropriate unit of
all production, maintenance, par boil, and processing
employees represented by the Union. The election was
conducted March 11, 1977. The Union lost by a vote of I
to 10 with 4 challenges, and on March 16, 1977, it filed
objections to the election.
On March 17, 1977, the Union filed the charge in Case
26-CA-6591 and served a copy on the Respondent; on
April 1, 1977, it filed and served a first amended charge;
second and third amended charges were filed and served
April 19 and April 25, 1977. The Regional Director issued
a Supplemental Decision and Order Directing Hearing on
Objections in Case 26-RC-5435 on April 18, 1977. In his
Supplemental Decision, the Regional Director overruled
Objections I and 4, and found that Objections 2 and 3
would best be resolved on the basis of record testimony.
On April 25, 1977, the Regional Director issued an order
consolidating cases, complaint, and notice of hearing in
Cases 26-CA-6591 and 26-RC-5435. The Respondent
duly filed an answer to the complaint.
The issues to be resolved are whether or not the
Respondent violated Section 8(aXl), (3), and (4) of the
National Labor Relations Act, as amended, by transferring
checkers Lawrence Howard, Albert Gaddy, and Obdie
Hall to lower-paying jobs of forklift drivers during the last
week of February, and whether or not the Employer
interfered with the election by that conduct and by telling
the transferred employees on or about March 9, 1977, that
their wages had been reduced on March 8, 1977.1 For the
reasons given below, I conclude that the complaint should
be dismissed and the objections overruled.
Upon the entire record, including my observation of the
demeanor of witnesses, and after due consideration of the
brief filed by the General Counsel and the oral argument of
the Respondent, 2 I make the following:
I I find unnecessary to decide an additional issue as to whether or not the
status of checkers was raised to that of supervisors after the issuance of the
Regional Director's Decision and Direction of Election in view of my
decision on the basis of the other issues that the complaint should be
dismissed and the objections overruled.
I The Respondent filed a motion to strike portions of General Counsel's
brief, and the General Counsel thereafter filed an opposition thereto. I find,
234 NLRB No. 128
798
RICELAND FOODS
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
I. JURISDICTION
The complaint alleges, and the Respondent admits, that
it is a corporation doing business in Stuttgart, Arkansas,
where it is engaged in the processing of rice; during the
past 12 months the Respondent purchased products valued
in excess of $50,000 which were shipped to it directly from
points outside Arkansas, and shipped products valued in
excess of $50,000 directly to points located outside Arkan-
sas. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
111. ALLEGED UNFAIR LABOR PRACTICES
The Respondent employs a total complement of 300-400
employees at its Stuttgart rice mill. As indicated above, the
Union is the certified contract representative of a unit of
production, maintenance, par boil, and processing employ-
ees, excluding checkers. Before any changes were made in
their duties, there were 16 checkers: 8 of these worked in
the shipping department as members of four 4-person
crews loading trucks and boxcars; 6 checkers worked at
other locations; and 2 were on disability leave. The
checkers with which we are chiefly concerned were those in
the shipping department. In authority over them were Lee
Wesley, nonsalaried foreman; Robert Cook, assistant
shipping superintendent; Richard Fields, shipping superin-
tendent; and Dale Newkirk, plant manager. In each
loading crew of four, there were two laborers who were
members of the established unit, and two checkers who
traded back and forth with each other for varying periods,
usually weekly, performing checker and forklift-driver
duties. As forklift drivers, they loaded forklift trucks with
bags of rice from the warehouse and hauled them to trucks
backed up at the loading dock. As checkers, they oversaw
the transfer of the bags from the forklift to the truck by the
laborers, returning the order form to the office when
loading was completed and picking up another order form
or directing the crew members and working along with
them in cleaning up.
At the hearing in the representation case, which was held
February 1, 1977, the Employer contended, contrary to the
Union, that the checkers were supervisors. Plant Manager
Newkirk, Personnel Manager Trice, Superintendent Fields,
and Assistant Superintendent Cook were present and
testified. Employees who testified were checkers Johnnie
Lee Criss, Curlee Kelly, Cheryl Warnock, Hermon Age,
and Albert Gaddy. Two unit employees also testified -
Charles Goodlow and Samuel Kelly.
in agreement with the General Counsel, that the motion was filed after the
deadline for filing briefs and is in the nature of a reply brief, net provided
for in the Board's Rules and Regulations. It is therefore denied. All facts
Of the employee witnesses, checker Warnock testified for
the Employer. Albert Gaddy testified under subpena for
the Union, adversely to the Employer's position. The
record does not show which side called or subpenaed the
other witnesses. Checker Lawrence Howard attended
under union subpena but did not testify.
On February 2, 1977, the day after the hearing, the
Union filed a grievance charging, "The Company has the
checkers in these [shipping and par boil] departments
working most of the day. The Company admits they are
supervisors. The Company is in violation of Article XXVII
of the Union contract." The adjustment requested was "the
Company immediately stopped the supervisors from doing
bargaining unit work." On February 7, 1977, Assistant
Superintendent Cook submitted the first-step answer, and
on February 14, Superintendent Fields submitted the
second-step answer, both to the effect that the Company
was not in violation of the contract. The next day,
February 15, the Union appealed to the third step.
The Regional Director issued his Decision and Direction
of Election on February 14, finding the checkers not to be
supervisors, and the Respondent received a copy February
15. On February 16, Plant Manager Newkirk answered the
third step of the grievance, as follows:
We will immediately stop Checkers from doing bar-
gaining unit work. Checkers will only supervise their
Crew. The driving of Forklifts will be done by person-
nel within that classification. Checkers that were
previous Forklift Drivers will resume that title.
Thereafter, checkers Gaddy, Howard, and Hall were taken
off checker duties, reclassified as forklift drivers, and on
March 8 their pay was cut 6 cents an hour. The loading
function was reorganized, with five crews operating, each
with a full-time checker, a forklift driver, and two laborers.
The only violation alleged is the selection of Gaddy,
Howard, and Hall as the checkers to be reduced to forklift
driver.
The complaint, as clarified by the General Counsel,
alleges that the Respondent, upon receipt of the Regional
Director's Decision and Direction of Election, seized upon
the Union's grievance as an excuse to transfer two known
prounion votes (Gaddy and Howard) out of the checkers
voting group, and that it attempted to conceal its unlawful
motive by also transferring Hall, the only other checker
who fell in the same category of "previous Forklift
Drivers." The Respondent contends that the three men
were selected because they were the least qualified checkers
and the best qualified forklift drivers.
Gaddy, Howard, and Hall were all designated checkers
August 3, 1976. Gaddy testified without dispute that they
were the only three checkers who had formerly been
employed as full-time forklift drivers in the established
unit. Two others were hired as checkers after August 3:
Gary Myers,' with no apparent relevant previous experi-
ence, was hired November 30, 1976, and Alton Carr, a
former company employee and supervisor, was hired in
found in my decision are taken from the transcript of the hearing and the
exhibits received in evidence.
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 1976. Gaddy worked regularly as a checker and
forklift driver in a crew, trading duties with Cheryl
Warnock, his first 5 months in this job. During that period
Howard was not assigned to a regular crew, but worked
relief, trading checker and forklift duties with various
employees. About a month before their demotions, Ho-
ward and Gaddy were assigned regularly to the same crew
and Myers was assigned to Warnock's crew. Hall worked
throughout in the same crew with Elijah Noel, but by
agreement Noel did the checking and Hall did the forklift
driving 95 percent of the time.
Personnel Manager Trice testified that he advised Plant
Manager Newkirk and other members of management
regarding the third-step answer to the grievance that they
would not have a good case for arbitration on the basis of
the answers at the first two steps, and that they would do
well to accept the union position that the dual checker-
forklift driver position was a violation of the contract in
that it resulted in checker-supervisors doing forklift-driver
unit work. All management witnesses testified that the
third-step answer was not affected by the receipt the day
before of the Regional Director's Decision and Direction
of Election.
Trice testified that those involved in the third-step
answer had Gaddy, Howard, and Hall in mind on
February 16 as the three who would be transferred to
forklift driving as there had been no complaints about their
driving and management wanted to give them the jobs if
possible. Trice continued that although they were immedi-
ately taken off checker work and assigned to forklift duties
only, they could not be considered permanently assigned
until the contract bidding procedure for filling jobs in the
unit was complied with. In any event there were in fact six
forklift job openings, and a bid sheet was thereafter posted
on or about February 23, and a number of unit employees
signed it.
The parties stipulated that the contract bidding proce-
dure required that jobs be filled on the basis of skill and
ability "with seniority simply being a time record."
Before the bid sheet was posted, Plant Manager Newkirk
told Superintendent Fields that three checker jobs were to
be eliminated and that he was to keep the most qualified as
checkers and put the least qualified back to forklift. Fields
consulted Assistant Superintendent Cook and Foreman
Wesley and, on the basis of mutual agreement, decided to
select Gaddy, Howard, and Hall. 3 After the bid sheet was
taken down, the six forklift openings were filled by the
three from outside the unit, Gaddy, Howard, and Hall, and
by three employees from inside the unit. As of March 8, the
payrate of the three former checkers was reduced 6 cents to
the forklift rate, in accord with a requirement of the
contract. A second grievance was filed March 21, because
all six forklift jobs were not awarded to unit employees, but
3 Wesley's testimony that Fields told him and Cook the names of the
three to be eliminated is discounted as in conflict with his own pretrial
affidavit as well as the testimony of Fields and Cook.
4 Based on the mutually corroborative credible testimony of Superinten-
dent Fields, Assistant Superintendent Cook, Foreman Wesley, and checker
Warnock. No reliance is placed on the testimony of checker Hermon Age,
as he failed to satisfactorily explain inconsistencies with his pretrial
affidavit. There is no contrary evidence as to Hall, wvho did not testify.
I Based on credited testimony of Fields, Cook. and Wesley. Warnock
it, as well as the February 2 grievance, was settled with
International Representative Garrold Brown at an April 4,
1977, meeting accepting the Respondent's solutions.
Despite the denials of Gaddy, Howard, and checker Leo
Blood, the overwhelming weight of the evidence establishes
that Gaddy was not attentive to his duties as checker,
frequently disappearing for considerable lengths of time
when he was needed to direct the crew, and that Warnock
often complained about it; that Howard had trouble
commanding the respect of a crew and getting work out of
them; and that Hall did not want to check and spent 95
percent of his time driving a forklift, by his own choice.4 As
for the two checkers who had less seniority than the three
that were selected, the weight of the evidence is that Myers
was hired as a checker, that he caught onto the work faster
than others, and that he was an exceptionally good checker
although beginning sometime after the election his work
deteriorated because of excessive absenteeism.5 It is undis-
puted that Carr had been a checker for 6 or 7 years in the
past, as well as a warehouse manager, and he was excellent
at both jobs.
I find, in agreement with the General Counsel, that the
Respondent had knowledge of Gaddy's testimony contrary
to its position at the representation case hearing February
1, and it can be presumed that it was aware, as it had not
called for Howard's attendance, that he attended at the
instigation of the Union.6 It is undisputed that the
Respondent's third-step answer was given on February 16,
the day after it received a copy of the Regional Director's
Decision and Direction of Election. I further find that the
last sentence of the answer, "Checkers that were previous
forklift drivers will resume that title," had reference to
Gaddy, Howard, and Hall whom the Respondent had in
mind in framing its answer.
I cannot agree, however, that the evidence shows that the
Respondent seized on the opportunity presented by the
grievance as a vehicle for ridding the voting group of two
prounion votes by changing its answer at the third step to
designate a class of former forklift drivers for transfer
which would cover only these two with one other thrown in
to quell suspicions; or that the purported deficiencies of the
three were an afterthought.
Although the Respondent might well have assumed that
Gaddy and Howard would be "Yes" votes in the election,
there is no evidence from which it can be inferred that the
Respondent discriminated against them for this reason. In
addition to the absence of union animus, it counts in the
Respondent's favor that it has an apparently stable
relationship with the Union covering the established unit,
and that the Union initiated the transfers by filing the
February 2 grievance and ultimately acquiesced in the
transfer of these three employees.7 Moreover, the timing of
the third-step answer is accounted for by the fact that the
testified that Myers did not catch onto the work as fast as Gaddy, but that
he became a better checker than Gaddy before his subsequent lapse into
absenteeism.
6 There is no evidence that the Respondent had any other knowledge of
union activity, or sentiments for or against the Union, of any of the
checkers.
7 For these reasons, Ship Shape Maintenance Company, 189 NLRB 395
(197 I), where the Board found unlawful the employer's abolishing the entire
unit before an election could be held, is not apposite.
800
RICELAND FOODS
second-step was appealed the preceding day, as well as by
the Respondent's receipt of the Decision and Direction of
Election. To the extent that the Respondent shifted its
reasons for its selection of employees for transfer, in my
opinion Personnel Manager Trice's explanations distin-
guished the Respondent's conduct from cases in which
unlawful motives have been exposed on the basis of an
afterthought theory. There was no reason to expect, and
the General Counsel does not appear to urge, that the
selection should have been made on the basis of seniority,
as there was no contract requirement or past practice to
that effect. Whether the basis for selection was prior service
as forklift driver, or least satisfactory service as checker,
both reasonable bases, the facts compel the conclusion that
Gaddy, Howard, and Hall were the logical choices.
In all the circumstances, therefore, I conclude that the
allegations of the complaint are not supported by a
preponderance of the credible evidence on the record as a
s 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.
whole and that I therefore recommend that the allegations
be dismissed.
IV. OBJECTIONS
Having concluded that the conduct of the Respondent
did not violate the Act, I further conclude that it did not
invalidate the election and recommend that Objections 2
and 3 based thereon be overruled.
Upon the forgoing findings of fact and conclusions of
law and the entire record, I hereby issue the following
recommended:
ORDER 8
It is hereby ordered that the complaint in Case 26-RC-
6591 be dismissed in its entirety and the objections to the
election conducted in Case 26-RC-5435 be overruled.
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.
801