Shed's Food Products

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 540 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shedd's Food Products, Division of Beatrice Foods
Co. and General Drivers, Warehousemen and
Helpers Local Union 28, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 11-
CA-6798
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 5, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision and an answering brief to the
exceptions.
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, ' 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
The 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
credibility 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 his findings.
DECISION
STATEMENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hearing
in this proceeding was held at Greenville, South Carolina,
on March 24, 1977, on complaint of the General Counsel
against Shedd's Food Products, Division of Beatrice Foods
Co., here called the Respondent or the Company. The
complaint issued on December 30, 1976, on a charge filed
on November 1, 1976, by General Drivers, Warehousemen
and Helpers Local Union 28, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
232 NLRB No. 90
and Helpers of America, here called the Union or Local 28.
The sole issue of the case is whether the Respondent
discharged an employee in violation of Section 8(aX3) of
the Act. Briefs were filed by the Respondent and the
General Counsel.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Respondent, a Delaware corporation, is engaged in
the manufacture of margarine in a plant in Greenville,
South Carolina. During the past 12 months, a representa-
tive period, it received raw materials at this plant from
points directly outside the State valued in excess of
$50,000. During the same period it shipped from this plant
directly to out-of-state locations products valued in excess
of $50,000. I find that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Patricia Forrester, an office employee, worked for this
Company from May 1974 to October 1976, when she was
discharged following an error she committed in her work
that cost the Company a loss of over $1,000. The complaint
alleges that by so discharging her the Respondent discrimi-
nated against her because of her union activities. A year
earlier, one day in the summer of 1975, she had lunch in a
restaurant with two girls who worked in the office of
Teamsters Local 28; Frank Wood, business agent of that
Local, was also there. This was the total extent of
Forrester's "union activities," in retaliation for which,
according to the General Counsel, the Company fired her
15 or 16 months later. Denying such unlawful motivation,
the Respondent asserts she was dismissed for just cause,
many repeated errors in her work for 4 months culminating
in the aggravated loss resulting from her final mistake in
October 1976.
It is a circumstantial evidence case, in which all relevant
factors must be considered. Do all those facts indicating
illegal motive prove convincingly the complaint is correct?
Or do all the facts, including those which tend to support
the affirmative defense of discharge for just cause, fall short
of that quantum of proof required under Board law to
prove any unfair labor practice? The test is authoritatively
set out in N.LR.B. v. Glen Raven Silk Mills, Inc., 203 F.2d
946 (C.A. 4, 1953) which speaks of the necessity for a
preponderance of the substantial evidence on the record as
a whole.
Local 28 has long been the established collective-bar-
gaining agent for the Respondent's approximately 100
plant employees and drivers working at this plant. The
office employees - eight persons - have never been
represented by a union. In 1975 Forrester was the payroll
clerk, and, among other things, she handled the dues
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SHEDD'S FOOD PRODUCTS
checkoff records and health and pension payments for-
warded to Local 28. She had frequent telephone conversa-
tions with the girls who worked in the Union's office and
conceived the notion of meeting them socially. She
therefore went to the Union's office for that purpose.
Wood, in charge there, took the girls to lunch.
Calvin Oliver, company comptroller in charge of the
office, and Brantley Tew, general manager and a corporate
officer, learned of the girl's social chat with Local 28 people
within a few days or a week - it does not really matter just
how soon. Tew, who had frequent dealings with Wood on
contract grievances, and therefore knew him well, called
the business agent on the phone and asked if this was true.
Forrester testified that Oliver told her at that time - still
back in the summer of 1975 - he knew of the lunch date
and asked "why did he [a typographical error in the
transcript; it should be we] want the union into the office,"
and she answered that that had nothing to do with it.
Oliver then said, still according to Forrester, "Mr. Tew was
really mad about it, that he didn't like it at all." Forrester
also testified that the next day Oliver brought up the
subject again, this time telling her "Mr. Tew was again very
upset and that Mr. Tew would be watching everything that
I did; and so he said, 'to be careful.' "
As already stated, Forrester never thereafter did or said
anything that could conceivably be deemed union activity.
More than once, during the following months, Tew and
Wood, in their unrelated dealings involving the union-
represented employees, "needled" one another on this
question of Local 28 organizing the office girls. Wood
kidded Tew, but made clear at the hearing the Union never
went near the office girls and there were never any such
activities by the girls at all.
One day in April or May 1976 Wood was sitting in Tew's
office, and exchanged a "hi" with Forrester through the
open door as she happened to pass by. Again, according to
her testimony, Oliver told her Tew did not like her sticking
her head in the door to greet Wood. She added she denied
it, but that Oliver continued that day - "That Mr. Tew
had been very upset about the lunch and 'that I had really
better watch what I was doing.' "
She was discharged 5 or 6 months later. The final item of
evidence offered to prove the unfair labor practice is her
testimony that in the discharge conversation, after Oliver
told her it was because of "too many errors," she rejected
the reason. To this Oliver then said, according to her: "I
told you that Mr. Tew would never forgive you for what
happened, and that he will be watching you ... ."
Of all of Respondent's testimony, that which lends
support to the complaint are Oliver's statements to her: (I)
in the summer of 1975 that Tew did not like what she was
doing and she should therefore watch what she did and be
careful; (2) a year later again that she had "better watch
out"; and (3) in the discharge conversation that Tew had
never forgiven her. At the hearing Oliver directly denied
having made any of these statements. And Tew as a
witness also denied having voiced any such ideas to Oliver
at any time.
I credit Forrester's testimony that Oliver told her in 1975
that Tew was irritated over what she had done and that she
had best look out for herself. Tew did check with Business
Agent Wood when he learned of the lunch date. A mere
lunch with friends by an office girl would hardly cause the
general manager to do that; he must have been disturbed.
He even asked Wood, if Local 28 was trying to organize his
office staff. Oliver may even have made the April comment
about Tew not liking Forrester's friendliness with Wood
that day. As to Forrester's story that she provoked Oliver
into saying Tew still held the lunch incident against her in
October 1976, when she was discharged, I cannot believe it
against Oliver's denial. And this is not a matter of
demeanor alone. Too many things had happened in the
interval - tolerance towards her by management and
faults committed by her in her work - that lend credence
to Oliver's denial.
As stated, this is a circumstantial evidence case. Is a
positive finding of illegality justified if all of the pertinent
facts be considered?
I. Like everybody else, I suppose, Forrester said she
made errors while working as a payroll clerk from 1974 to
1976. In April 1976 an opening developed in the job of data
processing operator. It was a better job and paid $40 a
month more than she was getting. It is the Company's
policy, when job opportunities open, to further the welfare
of its own employees before inviting outsiders. The
Respondent promoted Forrester to the better job.
2. Forrester made many mistakes on the job. Asked
had she been criticized for this or that recorded error, she
denied most of the asserted reprimands, but did say she
could recall one or two. The Company maintains regularly
written entries in the employees' personnel files of such
corrective interviews. From these, kept in Forrester's file, it
is clear she was told no less than eight times, on various
dates between June 21 and October 5, that her mistakes
had caused substantial problems, and that she had to
improve. These records, received in evidence, are reliable
as having been kept in the regular course of business, for
the General Counsel not only did not question their
authenticity at the hearing, but also brought out the fact
that like entries are kept in the personnel files of other
office employees.
3. That Forrester's October 14 mistake, as she herself
admitted, caused a loss of over $1,000 ($1,199 according to
the more likely correct testimony of the comptroller), on its
face proves what could well be called a prima facie
justification for the discharge 2 weeks later. It took 2 weeks
to find a qualified replacement, and this is true, for
Forrester also said the phone kept ringing with calls from
employment agencies during the 2 weeks after October 14
before her actual dismissal. It cannot be argued, in this
case, that if the Respondent really wanted to release
Forrester for incompetence, why did it not do so earlier,
what with so many prior provocative mistakes. The fact is
that, compared to past errors, this was a whopper.
Moreover, if the Respondent overlooked all those past
errors, it proves as much that it did not harbor personal
malice against the girl.
I do not think that if Tew had been of a mind to get
Forrester out of the plant for fear she might become too
intimate with Local 28, he would have favored her with a
promotion, or been as lenient and understanding of her
problems for so many months in 1976 as the record shows.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no element of timing here that might raise
suspicions. The only thing Forrester did, so far as unionism
in any form is concerned, happened back in the summer of
1975. Fifteen months is too long a time to sustain an
inference of causal relationship. Another girl, Johnson, also
proved to be at fault at the very time Forrester was
released. Johnson was lax in the phone pressure to be
applied to a certain delinquent account, and that customer
went into bankruptcy owing the Respondent $18,000. An
officer of that company then assured Tew the money would
somehow be paid in full anyway, within a year or two. That
lady was not fired. It is an exaggeration by the General
Counsel to say that Johnson "made an $18,000 mistake."
Forrester did make a $1,000 mistake, for it was her direct
error that sent the wrong margarine to the customer. The
bankrupt customer's credit was poor, and Johnson's more
pressing reminders might or might not have made any
difference, more probably not. But circumstantial, or
inference, cases are not determined by isolated facts. The
I 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.
top keeps revolving. The Respondent has been in bargain-
ing relationships with Local 28 for the bulk of its
employees for 22 years; there have been successive
collective-bargaining contracts and never any strikes. And
throughout these years never before has any charge of
wrongdoing against this Company been filed with the
Board. If a dirty record is relevant to an inference question,
no less so is a clean one.
Considering all things on this total record, I find the
evidence insufficient to prove that in fact Forrester was
discharged because of any union activities on her part and
shall therefore dismiss the complaint.
Upon the basis of the foregoing finding and conclusions,
I hereby issue the following recommended:
ORDER'
It is hereby recommended that the complaint be, and it
hereby is, dismissed.
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.
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