Ritchie Industries Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1973

204 N.L.R.B. 113 (N.L.R.B. 1973)

RITCHIE INDUSTRIES 113
Ritchie Industries Corporation and Troxal L. Skid-
more . Case 9-CA-7290
June 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Party were represented by counsel and the Respondent was
represented by its plant manager, Alex Delman. All parties
were afforded full opportunity to be heard and to introduce
relevant evidence on the issues. A brief was submitted by
the General Counsel and was fully considered by me in
arriving at my decision in this matter.
Upon the entire record herein including my evaluation of
the testimony of the witnesses based upon my observation
of their demeanor and upon consideration of the relevant
evidence, I make the following:
On May 7, 1973, Administrative Law Judge Gor-
don J. Myatt issued the attached Decision in this pro-
ceeding. Thereafter, counsel for 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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 his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the instant complaint be, and the same
hereby is, dismissed.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon a
charge filed on September 13, 1972,1 by Troxal L. Skidmore,
an individual , against Richie Industries Corporation (here-
inafter called the Respondent ), a complaint and notice of
hearing was issued by the Regional Director for Region 9
on October 16. The complaint alleged , inter alia, that the
Respondent violated Section 8(a)(1) and (3) of the Act by
unlawfully discharging Skidmore because of his sympathy
for, membership in, and activities on behalf of International
Ladies Garment Workers Union , AFL-CIO (hereinafter
called the Union ).2 The Respondent 's answer admitted cer-
tain allegations of the complaint, denied others , and specifi-
cally denied the commission of any unfair labor practices.
This case was tried before me on December 7 in Parkers-
burg, West Virginia . The General Counsel and the Charging
1 Unless otherwise indicated, all dates herein refer to the year 1972
2 The complaint alleged that Skidmore was unlawfully discharged on Sep-
tember 7, but during the course of the trial it was determined that the actual
date of discharge was September 14 The complaint was amended on the
record to reflect the actual date developed by the testimony
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent Richie Industries Corporation is a West Vir-
ginia corporation engaged in the operation of a garment
factory located in Cairo, West Virginia. The Respondent is
a subsidiary of the Heckler Corp., which has its central
office and place of business in New York City. During the
past 12 months, the Respondent shipped goods and materi-
als valued in excess of $50,000 from its place of business in
Cairo, West Virginia, to points located outside the State of
West Virginia. Upon the basis of the foregoing, I find that
the Respondent is, and has been at all times material herein,
an employer as defined in Section 2(2) of the Act engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
11 THE LABOR ORGANIZATION INVOLVED
International Ladies Garment Workers Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent took over the garment factory at Cairo
sometime in 1967. Shortly after the Respondent acquired
the factory Delman became the plant manager. The entire
output of the Cairo factory was shipped to a warehouse
owned by the Heckler Corp. in Bradley Beach, New Jersey.
During the busy season, shipments flowed from the
Respondent's factory to Bradley Beach several times a
week.
Although the record does not indicate when the Union
became the collective-bargaining representative of the
Respondent's production employees, it is apparent that the
Union represented the employees for several years. The unit
did not include, however, the mechanic employed by the
Respondent, the plant manager's secretary, or the employee
occupying the position of shipper.'
B. The Events Regarding Skidmore
Skidmore originally started with the Respondent in 1967
3 The evidence indicates that employees classified as shippers were not
included in the bargaining units in any of Heckler's factories.
204 NLRB No. 39
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a janitor. He was subsequently assigned the duties of a
shipper. As a shipper, he was required to count and load
garments which were ready for shipment to the Heckler
warehouse in Bradley Beach, New Jersey. Skidmore's duties
required him to list the cut and style of the garments and
the quantities that were being shipped. He placed this infor-
mation on the lists which went with each shipment. When
the shipment arrived at the warehouse, the employees there
would check it against the list provided by the shipper.
Skidmore was laid off in the spring of 1970. He was rehired
in June 1972, at the start of Respondent's busy season.
Sometime in July 1972, Skidmore decided that he wanted
to become a member of the Union. Skidmore spoke to Inez
Simmons , a production employee and president of the
Union in the Respondent's factory. Simmons in turn spoke
to Delman about allowing Skidmore to join the Union.
Delman indicated that he would have to discuss the matter
with Heckler as none of the shippers were included in the
bargaining unit. Later that same month Simmons asked
Delman what he was doing about Skidmore's request to be
included in the bargaining unit. Delman stated that it did
not matter to him, provided that the local union representa-
tive agreed to include the employee. Simmons contacted the
local union representative who agreed, provided the plant
manager was willing. This information was passed on to
Delman by Simmons.
In August, Simmons again spoke to Delman about Skid-
more joining the Union. Simmons insisted that Delman give
her the union checkoff authorization card and the applica-
tion for membership so that she could have Skidmore sign
them.' After Skidmore signed the cards he returned them to
Simmons , who passed them on to the manager 's secretary
for mailing to New York.
The following month Simmons asked Delman why union
dues had not been deducted from Skidmore's paycheck.
Delman informed her that he had not sent the authorization
cards to New York. Simmons contacted the state represen-
tative on the telephone and spoke to him regarding the
situation of Skidmore. According to Simmons' testimony,
the state representative instructed Delman to include Skid-
more in the bargaining unit, but the plant manager refused.
He did agree, however, to discuss the matter further with
Skidmore. Simmons testified that on September 14, Delman
said Heckler refused to agree to allow Skidmore to be in-
cluded in the bargaining unit. According to Simmons, Del-
man repeated that none of the shippers in the Heckler
factories were in the bargaining units. During the course of
this conversation, Delman stated that Skidmore was earning
top wages ($2.15 per hour) and she questioned this state-
ment. Simmons and Delman went to the shipping section
and asked Skidmore what he was receiving in terms of wag-
es. Skidmore said he was receiving $2 an hour. Simmons
then insisted that Skidmore be allowed to become a member
of the Union so that he could receive hospitalization bene-
fits and paid holidays. At this point Delman offered to give
It was apparently the practice in the Respondent 's plant for the plant
manager or his secretary to keep blank union authorization and checkoff
cards Once an employee executed these cards, Delman would forward a
copy to the New York headquarters and a duplicate to the union headquar-
ters.
Skidmore $2.15 per hour and pay 50 percent of the cost of
his hospitalization. Skidmore continued to insist that he
wanted to be a member of the Union.
After Skidmore left work that evening, he received a call
from Delman at home asking him to return to the plant.
Skidmore returned and a telephone call was placed to Heck-
ler in New York. During the course of the conversation in
which Delman and Skidmore were on different extensions,
Heckler stated that Skidmore had been making numerous
errors in the counts submitted with the shipments to the
warehouse. Heckler also told the employee that there was
no room for that kind of incompetence in the organization
and that his services were no longer required. At the conclu-
sion of the telephone conversation, Delman had his secre-
tary draw Skidmore's final paycheck and his services were
terminated.
C. Skidmore's Performance as a Shipper
Delman testified that Skidmore made numerous and fre-
quent errors in the count of the garments which were
shipped weekly to the warehouse at Bradley Beach. Docu-
ments were introduced into evidence showing that Skid-
more frequently overstated or understated the number of
garments being shipped. According to Delman's testimony,
the company officials in New York were laig#ily critical of
his continuing to employ Skidmore because of the errors
made on the shipping invoices. The warehouse in Bradley
Beach was apparently staffed by transient employees and
there was frequent turnover . Because of the numerous mis-
takes made by Skidmore, the Respondent was unable to
determine whether the garments were being pilfered by
warehouse employees or whether they had in fact been
shipped.
Delman testified that he did not discharge Skidmore be-
cause he was in the height of the busy season, and he wanted
to delay making any changes in personnel until the slack
period started. He tolerated Skidmore 's mistakes and he
never warned the employee that he would be subject to
discharge if the mistakes continued. According to Delman,
this was the manner in which he handled his employees. He
also stated that he did not discuss his plans with the New
York officials because he did not like to take any problems
to them that he felt he was able to handle. Delman further
testified that when he informed the officials in New York
that Skidmore wanted to join the Union, they were sur-
prised that the employee was still working at the Cairo
factory. They were highly critical of the fact that Delman
had not discharged Skidmore because of his mistakes in the
shipments.
Sometime during the month of August, the factory was
operating 6 days a week and late in the evenings. Because
of the heavy work schedule Skidmore did not have the
opportunity to get to cash his paycheck. During one of the
coffee breaks, he was loading a shipment of garments onto
the truck and was unaware that the bell had rung for the
break. After the break period was over, Skidmore decided
to leave and made the comment in front of Delman's secre-
tary that he would be back as soon as he cashed his pay-
check at the bank. When Skidmore returned he was told by
the secretary that he would have to punch his timecard as
RITCHIE INDUSTRIES 115
she had punched his card out when he left the factory.
Skidmore was upset over this incident , and the following
Monday he complained about it to Delman. Delman said
nothing and the matter was not pursued any further at that
time.
When Skidmore was discharged over the telephone by
Heckler , Delman was quite upset over his employer's ac-
tion . He stated that he felt that it was a local personnel
matter which he could have managed himself. He testified
that he felt the decision on the part of Heckler was not wise,
and he gave the impression that he would have preferred
that it had not occurred in that fashion. After Skidmore
filed unfair labor practice charges and the complaint issued,
Delman took it upon himself to rehire Skidmore. He stated
that after he had rehired Skidmore, errors began to occur
again in the shipments. During the interim period, the ship-
ments to the warehouse were apparently accurate.
Concluding Findings
The General Counsel contends that Skidmore was dis-
charged because he insisted upon being allowed to become
a member of the bargaining unit and represented by the
Union. The General Counsel argues that Skidmore's mis-
takes in the shipments were well known to the Respondent,
and steps were not taken to correct the situation. Nor did
they warn the employee that he would be discharged if the
errors continued to occur. Consequently, according to the
General Counsel, the Respondent condoned Skidmore's in-
efficiency as an employee and only became dissatisfied with
him after he began to insist that he be allowed to be repre-
sented by the Union.
There is no doubt that the facts lend themselves to the
conclusion urged by the General Counsel. The Respondent
retained Skidmore even though it was apparent that he was
incompetent as a shipper and that he made numerous mis-
takes . On the day that he had been discharged , the union
president had insisted that he be included in the bargaining
unit and confronted Delman about the fact that the New
York office had not acted upon the employee 's authoriza-
tion for the deduction of union dues . But the facts here also
lend themselves to the opposite conclusion , i.e., that Skid-
more was discharged because he was an unsatisfactory em-
ployee.
It is quite clear that Delman was a compassionate em-
ployer and a "soft-hearted" plant manager . When Skidmore
was laid off in 1970 , Delman attempted to get him a job with
others in the area. Finally he rehired Skidmore at the factory
in 1972. He was frequently criticized by his superiors in New
York because he continued to employ Skidmore despite the
numerous errors the employee made regarding the ship-
ments to the warehouse . It is also clear that Delman did not
chastise nor was he unduly harsh with his employees. In-
deed, it might be said that it was his very compassion that
led to his difficulty in this case.
I credit Delman's explanation that despite the urging
from the New York office, he decided that he would not
make any changes regarding the shipper until after his busy
season was completed. It is evident that when Delman men-
tioned Skidmore's request to be included in the bargaining
unit, he also caused the officials in New York to consider
the dissatisfaction they were experiencing with this
employee's job performance. The fact that Heckler decided
to take matters in his own hands and discharge the employ-
ee does not compel the inference that he did so because of
the request to be included in the unit. I am not unmindful
that the discharge coincided with Skidmore's push to be-
come a member of the Union. Nevertheless, I am unwilling,
on the state of this record, to conclude that the employee
was discharged because he sought to be included in the
bargaining unit. The record equally supports the conclusion
that he was discharged because of unsatisfactory job perfor-
mance.
In these circumstances, I am constrained to find that the
General Counsel has failed to establish, by a preponderance
of evidence, that Skidmore was discharged for reasons that
violated the Act. Accordingly, I shall recommend dismissal
of the complaint in its entirety.
CONCLUSIONS OF LAW
1. Richie Industries Corporation is an employer as de-
fined in Section 2(2) of the Act engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Ladies Garment Workers Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By discharging employee Troxal L. Skidmore on Sep-
tember 14, 1972, the Respondent did not commit an unfair
labor practice within the meaning of Section 8(a)(1) and (3)
of the Act.
Accordingly, upon the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this case, pur-
suant to Section 10(c) of the Act, I make the following
recommended:
ORDERS
The allegations of the complaint herein be dismissed in
their entirety.
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 Order herein shall, as provided in Sec 102.48 of the Board's
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