Conwood Corp.

National Labor Relations Board - Board Decisions

Nov 7, 1968

173 N.L.R.B. 644 (N.L.R.B. 1968)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conwood Corporation and Tobacco Workers Inter-
national Union , AFL-CIO-CLC. Case 26-CA-2968
November 7, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On May 23, 1968, Trial Examiner William F.
Schamikow issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the'
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision 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
powers in connection with this case to a three-
member panel.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the hearing
and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the excep-
tions and briefs, and the entire record in this case, and
hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.
activities or concerted activities for the purpose of collective
bargaining or other mutual aid or protection.'
Pursuant to notice, a hearing was held at Memphis,
Tennessee, on March 23 and 24, 1968, before me. The General
Counsel and the Respondent appeared by counsel and the
Union by its representative and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to
introduce evidence upon the issues in the case. Since the
hearing briefs have been received from the General Counsel
and from counsel for the Respondent and have been duly
considered.2
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Conwood Corporation, is a New Jersey
corporation engaged in the business of the manufacture and
wholesale distribution of snuff, at a plant in Memphis,
Tennessee. During the 12 months preceding the issuance of the
complaint, the Respondent, in the course of its business
operations, purchased and received at its Memphis, Tennessee,
plant goods and materials of a value of more than $50,000
directly from points outside the State of Tennessee. During the
same 12 months, the Respondent sold and shipped from its
Memphis, Tennessee plant, goods and materials of a value of
$50,000 directly to points outside the State of Tennessee. I
conclude and find that the Respondent is, and has been, an
employer engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to entertain
jurisdiction in the present case.
II. THE LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The com-
plaint alleges, but the answer of the Respondent denies, that
the Respondent committed unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151 et seq. (herein called the Act), by
discharging James Earl Beecham on or about January 8, 1968,
and thereafter failing and refusing to reinstate him, because he
joined or assisted the Union or engaged in other union
Tobacco Workers International Union, AFL-CIO-CLC
(herein called the Union) is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The General Issue: Was Beecham's Discharge for Cause or
for Concerted or Union Activity?
James Earl Beecham, generally called Earl Beecham, was
employed by the Respondent at its Memphis plant for 15 years
beginning on December 16, 1952. During all but the first year
of his employment, he worked as a machine operator in the tin
can department under Foreman John Johnson. On January 8,
1968, Personnel Director John Miller, accompanied by
Foreman Johnson, discharged Beecham by paying him the
wages due him and handing him a "separation notice," signed
by the Respondent's managing director, John Overton, in the
form required by the Tennessee Unemployment Compensation
Act. The reason given for the discharge in this notice was,
"Constant complaining. Work had become unsatisfactory."
According to the testimony given by the Respondent's
supervisors, which will be discussed in detail below, Beecham's
' The unfair labor practice charge in the case was filed by the Union 2 Since the hearing , the General Counsel has served upon Counsel for
and served on the Respondent on January 9, 1968 . The complaint was the Respondent , and submitted to me, a motion to make three
issued by the Regional Director and served on the Respondent on corrections of language in the transcript of the hearing . No objection
February 6, 1968. having been made, the motion is granted.
173 NLRB No. 94
CONWOOD CORP. 645
work had become unsatisfactory in that, during the last 6
months or so of his employment, he had been turning out
defective cans on his machine, and his "constant complaining"
referred to his unjustified complaints about his machine. A
brief, preliminary description of Beecham's machine operation
as an integral part of a continuous chain operation in the
fabrication and packing of the cans used by the Respondent,
will help to understand this testimony and the Respondent's
general position.
Beecham operated the only regularly used high speed
machine that pressed and seamed bottoms on cylindrical
1'a-ounce tin shells as they came by conveyor from a
body-making, vertically seaming machine on the second floor
of the factory. From Beecham's machine, the cans were passed
by the conveyor to the packing department two floors below,
where a continuing series of conveyor-fed machines operated
by women employees filled, capped, and labeled the cans.
From the detailed evidence given by the witnesses, it
appears that these fabricating, filling, capping, and labeling
machines operated at high speed; that the machines and the
cans passing into and through them required constant
observation and attention from the operators; that, unless cans
which were defectively shaped or fabricated at any stage of the
continuing process were removed from the conveyor and
possible machine malfunctions corrected by the operator or a
plant mechanic at his request, the failure of the machine
operator to take such action might cause a jam in, and require
stoppage of the particular machine responsible for the defect
or even a machine later in the chain; that such a resulting
interruption of production was of importance not only to the
Respondent but also to the machine operators who were paid a
bonus for their metered production over a fixed daily "par"
figure; and, finally, that since defective cans might pass
through the counters of machines and entitle their operators to
a production figure toward their bonuses, the failure of the lax
operators to tend their machines properly might jam only the
later machines in the chain and thus unfairly affect the bonus
production figures of the later operators. Some idea of the
speed of the fabricating, filling, capping, and labeling machines
is furnished by the fact that, although the Respondent
tightened its quality control of the process in August, 1967
and within a few weeks reduced the "par" bonus production
figures for the operators (in Beecham's case from 120,000 to
112,000 per day), Beecham's production "on good days" still
reached from 135,000 to 140,000 cans per day.
The complaint alleges, and the General Counsel and the
Union contend, that the Respondent actually discharged
Beecham, not because of defective work and unjustified
complaints about his machine, but because he had engaged in
concerted employee-activities and in the Union's attempt to
organize the Respondent's employees. With respect to
Beecham's concerted employee-activity generally, the evidence
does show that in August 1967 and before the Union began an
attempt to organize the Respondent's employees, the Respon-
dent reduced the "par" bonus production figures at the
request of Beecham and two other machine operators, and
that, although the other two operators voluntarily expressed
their appreciation of the Respondent's compliance with their
request, Beecham annoyed Production Manager Harwood by
not answering when Harwood asked him how the reduced
bonus figure was working out. The evidence also shows that
when Union Representative John Kline began to organize the
Respondent's employees in October 1967, he made two visits
to Beecham's home; that, on each of these occasions, he saw
only Beecham and the members of his family but no employee
of the Respondent other than Beecham, that, so far as the
record shows, Kline never did have direct contact with any of
the Respondent's employees except Beecham; that on Kline's
second visit to Beecham's home on or about November 1,
1967, Beecham signed a Union card, and that Beecham
thereafter spoke to a number of fellow employees about
joining the Union in the plant washroom and while walking
down the factory aisle during work breaks, but was careful to
avoid doing this in the presence of any of the supervisors and,
in fact, had no reason to believe that the Respondent or the
supervisors had observed him. Furthermore, until after
Beecham was discharged on January 8, 1968 and the Union
had filed its unfair labor practice charge, the Union made no
approach to the Respondent nor did it engage in any specific
acts directly or through any of the Respondent's employees,
which it or the General Counsel claims might have come to the
attention of the Respondent or its supervisors. Indeed, the
Respondent's managerial and supervisory representatives all
testified that the first information that they had that the
Union might have been attempting to organize the employees
or that any of the employees might have been engaging in such
activity was furnished by a letter received by the Respondent
on or about January 10, 1968, advising it that an unfair labor
practice charge had been filed by the Union because of
Beecham's discharge.
Nevertheless, the General Counsel and the Union make
several arguments that the evidence shows that the Respondent
actually discharged Beecham, not only because of his engaging
in the pre-Union concerted activity of getting the Respondent
to reduce the "par" bonus production figures in August 1967,
but also because of his later joining and supporting the Union.
The first of these arguments is based upon the so-called "small
plant" doctnne of Wiese Plow Welding Co., Inc., 123 NLRB
616, 618, to the effect that in a small employer-unit, an
employer should be assumed to know when his employees are
engaging in organizational activities.3 They contend that this
doctrine has application in the present case because, although
the Respondent employs about 250 employees in its Memphis
plant, Beecham worked in the tin can department consisting of
only about 15 employees under a separate departmental
foreman, and it should therefore logically be assumed that the
Respondent must have known of the Union's activity and
Beecham's involvement. As'1 told the General Counsel during
the hearing, I see no merit to this argument in the present case
and reject it.
The second argument which the General Counsel makes and
which still must be considered , is based in part upon the
testimony of one of the employees, Jefferson Gross, that, in a
"birthday party meeting" with a group of employees in
December 1967 but which Beecham did not attend, Personnel
Director John Miller told them that the Respondent was not
going to have a union because it did not want it "to be like it
was the last time in the 40's."4 Two other employees denied
3See also Don Swart Trucking Co., Inc., 154 NLRB 1345.
'4 The reference was apparently to a union organizational effort in
1949 and 1950 . Although unfair labor practice charges had been filed
against the Respondent at that time , the Board dismissed the complaint
against the Respondent . American Snuff Company, 109 NLRB 885.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Miller had made any such statement in December 1967,
and Miller and Production Manager Harwood testified that
they could not remember that anything at all was said about a
union at this meeting, thus presenting a factual issue for
decision. But, relying on employee Gross' testimony as to the
December 1967 meeting , the General Counsel also argues in
substance that the evidence shows such a summary, precipi-
tate, and unwarranted discharge of Beecham, a long-term
employee, that the manner and circumstances of the discharge
and the incredibility of the reasons given by the Respondent
therefor, not only strengthen Gross' testimony but taken in
conjunction therewith, require a finding that the Respondent
in some way knew of Beecham's Union activity and discharged
him because of it.
We may now turn to a consideration of the evidence as it
bears upon these opposing positions of the parties concerning
the actual reason for Beecham's discharge.
B. The Evidence Concerning the Respondent's Asserted
Grounds for Beecham's Discharge
The Respondent began tightening its control over the
quality of the cans turned out by its machines in the summer
of 1967. Edwin Bennett, an assistant to the plant engineer, was
then given new duties as "quality control man" and since that
time has himself inspected the output of the machines with the
assistance of Marvin Nelson, a young man newly hired in
September, whom he began training as an inspector. Hazel
McRight, who had been the Respondent's inspector in the
department for 18 years, was transferred in September to a
production job in the packing department but within a few
weeks thereafter, on September 29, quit her job. Mrs. McRight
testified that Foreman Johnson in telling her of her transfer,
said that Quality Control Man Bennett was taking her place
and that she was being transferred not because of "anything
[she] had done" but because another girl was needed in the
packing department. She also denied that anyone told her that
her removal from the inspector's job was because defective
cans were getting past her. Foreman Jones did not testify, as
(as Production Manager Harwood testified) he had a serious
operation in November 1967, and since the beginning of
December has been able to work at the plant only part time.
But I credit the testimony of Production Manager Harwood
and of Managing Director Overton, and accordingly find, that
Harwood transferred Mrs. McRight from her inspector's job
because, after he had spoken to her about tightening her
inspection and the situation had briefly improved, the number
of defective cans again increased and resulted in complaints
from Packing Foreman Wiseman and the girls operating the
machines in his department.
The Respondent's criticism of Beecham's work (as we shall
see) embraces the period from the beginning of July 1967 until
his discharge on January 8, 1968, and rests partly on Quality
Control Man Bennett's testimony but principally upon the
testimony of Production Manager Harwood and Personnel and
Safety Director Miller who assert they reported their unfavor-
able observations to Managing Director Overton, with their
eventual recommendation that Beecham be discharged.
To counter this criticism of Beecham's work during the last
half of 1967, Mrs. McRight testified that, until she was
transferred out of her inspector's job in the beginning of
September 1967, Beecham "did good work" and was "one of
the best" of Respondent's operators. And Marvin Nelson, the
trainee-inspector between the end of September 1967 and the
beginning of January 1968, testified that the quality of
Beecham's work was as good or better than that of the other
machine operators, that nothing was ever said to him about
Beecham's work, and that Beecham never complained. But
Beecham himself gave no testimony as to whether his work
was defective or, if so, to what extent. He testified merely that
he could not recall that Production Manager Harwood said
anything to him about his work or its being defective (as
Harwood testified he had); and that Johnson (his foreman) had
never reprimanded him nor for that matter ever made any
comment to him about his work, either complimentary or
critical.
The testimony of the Respondent 's witnesses presents a
different view of Beecham's work and attitude and the
problem they posed. Quality Control Man Bennett's testimony
was that from the time he took over inspection of the 1%a
ounce cans in the summer of 1967, the quality was at first fair,
then a bit better, and finally worse, and that most of the time
the defects were in the seams at the bottoms of the cans.
Personnel and Safety Director Miller testified that, in his
concern about the safe operation of the Respondent's
machines, he frequently observed Beecham's operation and the
conditions in which Beecham ran his machine, that early in
July 1967, he spoke to Beecham about the defective cans that
littered his machine area and that Beecham complained
because he said his machine was not operating properly; that
Miller thereafter spoke to Beecham two or three times a week,
that sometimes Beecham answered him but at other times he
did not; that from September 1967 until a last occasion on
January 4, 1968 (as to the most important of which incidents
Miller took the precaution of putting roughly contem-
poraneous memoranda in Beecham's personnel file), Beecham
would say little if anything when Miller spoke to him and
would "many times" be "sitting there gazing out the window,
or looking at the ceiling.... paying no attention to his
machine" while it was operating at high speed; and that Miller
discussed this attitude "from a safety angle" with his superiors
until, on January 5, 1968, the day following the last occasion,
he recommended to Production Manager Harwood and
Managing Director Overton that Beecham be discharged.
Finally, Production Manager Harwood testified that after the
initial tightening of quality controls in the summer of 1967,
the number of defective cans fluctuated, with each increase
bringing complaints from the packing department foreman and
the packing department machine operators whose bonuses
were affected; that there was a period before December 1967
under Quality Control Man Bennett, when there were no
complaints, that the packing department's complaints resumed
in the beginning of December and Harwood, on checking the
cans and the machines, found that they were coming mostly
from Beecham's machine; that, when he spoke to Beecham and
showed him the bad bottoms on the cans, Beecham said he
could not get his machine fixed; that later in December,
Harwood saw bad cans at Beecham's machine station but when
he showed them to Beecham, Beecham made no response; that
on Friday, January 5, 1968, Harwood again saw defective cans
at Beecham's machine, but noticed what "looked like tears
coming out of [Beecham's] eyes" and therefore said nothing
CONWOOD CORP.
to him, and that Harwood then got Personnel Manager Miller
and the two of them went to Managing Director Overton with
whom they discussed Beecham's possible discharge.
All three men testified that on January 5 Harwood and
Miller recommended Beecham 's discharge to Managing Di-
rector Overton, who alone had the authority to discharge plant
employees. According to Overton's testimony, he had already
been told by Harwood of the packing department's complaints
about the defective cans from Beecham's machine and of
Beecham's constant complaints about his machine, and had
already told Harwood "to do something about it." The three
men further testified that on January 5 both Harwood and
Miller supported their recommendations that Beecham be
discharged, by telling Overton that the cans from Beecham's
machine continued to be defective and they thought that there
was something physically wrong with Beecham and that he was
an "unsafe employee." At the conclusion of the discussion,
Overton (according to his testimony) postponed his decision as
to whether, in view of his long service, Beecham should be
discharged, so that Overton could give the matter further
consideration over the weekend.
On Monday, January 8, the three men met again and,
according to their testimony, Overton said he had decided to
discharge Beecham, and he and Harwood formulated the
reasons which were then inserted in the "separation notice" to
be handed to Beecham. In accordance with the Respondent's
usual practice in discharge cases, Personnel Director Miller,
accompanied by Johnson as Beecham's foreman, gave the
notice to Beecham that afternoon and paid him his wages in
cash.
C. The Evidence Concerning the Birthday Meeting of
December 12, 1967
There remains for consideration the conflicting evidence as
to what, if anything, Personnel Director Miller had said about a
union to a group of employees at a so-called "birthday party
meeting" attended by Miller , Production Manager Overton,
and Personnel Manager Patrick on December 12, 1967. For
several years, the Respondent had held such monthly meetings
for employees who had birthdays in the current month, for the
discussion of the employees' working conditions and benefits
and to answer any questions that the employees might ask.
The practice was interrupted in the spring of 1967 but
resumed again in November and December 1967. The
December meeting, as to which evidence was taken, occurred
on December 12, 1967, and was attended by from 12 to 15
employees . Beecham did not attend this meeting. Miller and
Overton were there, apparently throughout the meeting, but
Patrick was there only part of the time.
Employee Jefferson Gross testified that Personnel Director
Miller talked to the employees about the fringe benefits
provided by the Respondent for the employees, such as
hospitalization and half-priced luncheons . He testified (as has
been noted) that Miller also told the employees that the
Respondent was not going to have a union because it "didn't
want it to be like it was the last time in the 40's."
But two of the other employees who attended the meeting
(Billy Joe Winsett and Wilson Williamson) testified flatly that
nothing was said about a union by Miller, Harwood , or Patrick,
and Miller and Harwood testified that they could not recall
any mention at all of a union at this meeting.
D. Conclusions
647
The General Counsel contends that the Respondent violated
Sections 8(a)(1) and (3) of the Act by discharging Beecham for
either or both of two reasons, i.e., because of his early
concerted employee-activity in securing a reduction of the
"par" bonus production figure in August 1967 and/or because
of his later joining the Union and assisting and supporting its
organizational activity. But, as I view it, the evidence does not
support either of these positions.
The first of these elements of the General Counsel's
contention is the less complicated and it seems clear to me, is
without merit. Beecham's pre-union concerted activity posed
no threat of union organization, raised a simple matter,
resulted in the Respondent's almost immediate reduction of its
bonus figure standard , and, despite Production Manager
Harwood's annoyance at Beecham's lack of appreciation, was
accompanied by no such indication of resentment on the part
of the Respondent for Beecham's action, as would suggest that
it was a factor in the Respondent's decision to discharge him 4
months later.
The General Counsel's second contention that the Respon-
dent discharged Beecham because of his later joining and
supporting the Union in an attempt to organize the employees,
is more complicated and is dependent upon a resolution of the
conflicting evidence. To satisfy his burden of proving his
position, the General Counsel relies not only on the apparent
extent of Beecham's Union activity but also upon what he
contends should be the proper resolution of the conflicting
evidence concerning the "birthday meeting" of December 12
and the circumstances of Beecham's discharge, which have been
summarized in the two preceding sections of this Decision.
For, despite the conflicting testimony, the General Counsel
argues (as has been noted) that the evidence shows that the
Respondent summarily discharged Beecham, that the reasons it
gave and still gives for the discharge are untrue, and that, when
considered in conjunction with employee Gross' testimony
concerning Personnel Director Miller's reference to a union in
the December 12 meeting, the circumstances of the discharge
require findings that the Respondent knew of Beecham's
Union activity and that it "precipitately" discharged him
therefor rather than because of any credible dissatisfaction
with his work.
Certainly, in and by itself, the uncontradicted evidence as
to the extent and manner in which the Union and Beecham'
engaged in their organizational activity would furnish no basis
for inferring that the Respondent had any knowledge or
suspicion of it . For Beecham 's activity was minimal and so
deliberately guarded that he had no reason to believe that the
Respondent's representatives were aware of it or suspected it.
Furthermore, so far as the record shows and as I have already
found, Union Representative Kline's contact among the
employees was limited to Beecham . Finally, again so far as the
record shows and I have also found, the Union made no
approach to the Respondent nor did it or any of its possible
supporters take any action which came to the attention of the
Respondent 's representatives before Beecham's discharge. In
view of all this, it appears likely, as the Respondent's
representatives did in fact testify , that they knew nothing of
the Union's efforts or Beecham's assistance , until the
Respondent was eventually notified that an unfair labor
practice charge based upon the discharge had been filed with
the Regional Director.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The remaining portion of the General Counsel's contention
concerning Beecham's discharge must also fail for I generally
credit the testimony of the Respondent's witnesses on the two
broad points of conflict relating to the circumstances and
events leading up to Beecham's discharge and the anti-union
statements allegedly made by Personnel Director Miller on
December 12, 1967. Thus, I credit the testimony of Quality
Control Man Bennett, Personnel Director Miller, Production
Manager Harwood, and Managing Director Overton, and find in
accordance therewith (but without repeating its detail) that
the Respondent discharged Beecham on January 8, 1968,
because of his continued production of defective cans
beginning in July 1967. And I further find upon the testimony
of employees Winsett and Williamson, and contrary to that of
employee Gross, that neither Personnel Director Miller or any
of the other Respondent's representatives referred to a union
during the birthday meeting of December 12, 1967.
In sum, upon the foregoing considerations, I conclude that
the Respondent discharged James Earl Beecham on January 8,
1968, for cause, and not because of any concerted employee-
activity protected by the Act nor because of his joining or
assisting the Union or otherwise engaging in any acts on behalf
of ithe Union. I shall therefore recommend dismissal of the
allegations of the complaint that the Respondent discharged
Beecham in violation of Section 8(a)(1) or (3) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Conwood Corporation, a New Jersey
corporation, is an employer engaged in commerce within the
meaning of the Act.
2. Tobacco Workers International Union, AFL-CIO-CLC
(herein called the Union), is a labor organization within the
meaning of the Act.
3. The Respondent has not engaged in the unfair labor
practices within the meaning of the Act which are alleged in
the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions
of law, and the entire record in the case, it is recommended
that the complaint herein be dismissed in its entirety.