Venture Packaging, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1988

290 N.L.R.B. 1237 (N.L.R.B. 1988)

VENTURE PACKAGING
Venture Packaging, Inc. and Angela S. Enderby.
Case 8-CA-19989
September 26, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 27, 1988, Administrative Law Judge
Marvin Roth issued the attached decision The
General Counsel filed exceptions , a supporting
brief, and a motion to consolidate ' The Respond-
ent and the Glass, Pottery, Plastics and Allied
Workers International Union , AFL-CIO-CLC, the
Charging Party in the cases the General Counsel
wishes to consolidate with this case , each filed an
opposition to the motion to consolidate
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findmgs,2 and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
1 The General Counsel's motion seeks to consolidate the present case
with Cases 8-CA-19242, 8-CA-19371, and 8-CA-19438, all of which are
presently pending before the Board As the Charging Party and the issues
in this can differ from those in the pending cases, and in the interest of
expeditious resolution of this case , the General Counsel 's motion is
denied
a The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
Frank D Motif, Esq, for the General Counsel
Frederick R Post, Esq, of Toledo, Ohio , for the Re-
spondent
Joshua M Spielberg, Esq, of Haddonfield, New Jersey,
for the Charging Party in Cases 8-CA-20046 and 8-
CA-20318
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge This case
was heard at Sandusky , Ohio, on November S and 6,
1987 1 The charge was filed on April 7 by Angela S En-
1 All dates are for the period May 1, 1986, through April 30, 1987,
unless otherwise indicated
1237
derby , an individual The complaint, then consolidated
with Cases 8-CA-20046 and 8-CA-20318 , which issued
as amended on October 20, 1987, alleges that Venture
Packaging, Inc (Respondent or the Company) violated
Section 8(axl), (3), and (5) of the National Labor Rela-
tions Act The gravamen of the complaint , insofar as per-
tinent to Case 8-CA-19989 , is that the Company violated
Section 8(a)(1) and (3) by discharging Enderby because
of her union and protected concerted activities, and in
order to discourage employees from engaging in such ac-
tivity, and by unlawful interrogation The Company's
answer denies the commission of the alleged unfair labor
practices All parties were afforded full opportunity to
participate, to present relevant evidence, to argue orally,
and to file briefs The General Counsel, the Company,
and Glass, Pottery, Plastics and Allied Workers Interna-
tional Union, AFL-CIO, CLC (the Union), Charging
Party in Cases 8-CA-20046 and 8-CA-20318 , each filed
a brief
On the entire record in this case 2 and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the arguments of counsel and the briefs submit-
ted, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Company, an Ohio corporation with an office and
place of business in Monroeville , Ohio, is engaged in the
manufacture of plastic food containers In the course of
its business , the Company annually ships from its Mon-
roeville facility goods valued in excess of $50,000 direct-
ly to points outside Ohio I find , as the Company admits,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
On August 8, 1986, following a Board-conducted elec-
tion, the Board certified the Union as collective -bargain-
ing representative of the Company 's production and
maintenance employees The Company has refused to
recognize and bargain with the Union The Company
contends that the election was invalid because "lead
foremen," who the Company contends are supervisors
under the Act, were permitted to vote in the election
On September 12, 1986, the General Counsel issued an
amended consolidated complaint in Venture Packaging,
Cases 8-CA-19242 , 8-CA-19371 , and 8-CA-19438, al-
leging that the Company was violating Section 8 (a)(1),
(3), and (5) of the Act The case was heard before Ad-
ministrative Law Judge Lowell Goerhch on November
12 to 15 and January 6 to 8 On June 17, 1987, Judge
Goerlich issued his decision and recommended Order,
a Certain errors in the transcript are noted and corrected
290 NLRB No. 164
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
finding and concluding that the Company violated Sec-
tion 8(a)(1), (3), and (5). Judge Goerlich found in sum
that: the Company, and in particular its president, John
Rathbun, was strongly and bitterly opposed to the
Union; the Company unlawfully failed and refused to
recognize and bargain with the Union; the Company
made numerous unilateral changes in violation of its bar-
gaining obligations with the Union, and also in reprisal
for the employees' union activity or to undermine the
Union's position; the Company constructively discharged
an employee because of her union activity; and the Com-
pany committed other violations of Section 8(a)(1). The
Company, the Union, and the General Counsel filed ex-
ceptions to Judge Goerlich's decision, and the case is
presently pending before the Board. At the present hear-
ing I granted summary judgment in favor of the General
Counsel on the allegations in Cases 8-CA-20046 and 8-
CA-20318, all of which, as amended , involved alleged
violations of the Company' s bargaining obligations. I fur-
ther directed that the Enderby case (8-CA-19989) be
severed from the other cases for decision and further
processing before the Board. On January 29 , 1988, I
issued a decision and recommended Order in Cases 8-
CA-20046 and 8-CA-20318. All parties filed exceptions
and those cases are presently pending before the Board.
However, the parties did not except to severance of the
Enderby case.
B. Alleged Interrogation and Discharge of Angela
Enderby
Angela Enderby began working for the Company on
November 11 as an office clerical employee , a nonunit
position. The Company terminated Enderby on February
10, at the end of her 90-day probationary period. The
General Counsel contends that the Company discharged
Enderby "because of [its] perception that in the event of
a strike, they could not count on Enderby's loyalty, and,
in particular, that they could not count on Enderby
being willing to work behind the picket line during such
a strike." (Br. 19.) Before discussing the events of En-
derby's tenure, I shall first discuss a telephone conversa-
tion between Enderby and Company President Rathbun,
which took place shortly after her discharge. If the Gen-
eral Counsel has presented a prima facie case, then such
case necessarily rests on that conversation. As will be
discussed, that conversation constitutes virtually the only
credible evidence that might indicate that Enderby was
discriminatorily discharged.
Enderby testified in sum as follows: After her dis-
charge she telephoned the Company and tried to speak
to John Rathbun's son . He was not in so she spoke to
John himself. Enderby asked if Rathbun knew that she
was let go, and he answered that he heard about it. En-
derby argued that it was not fair because she was not al-
lowed to try to do the work. Rathbun responded by of-
fering to give Enderby "a little advice," namely: "The
next time you get a job at a place that is having as many
union problems as we are, don't go shooting your mouth
off about how you will not cross a picket line, and what
a big union man your husband is." Enderby denied
saying this . She explained that she said she would be
afraid to cross a picket line alone , but if necessary, could
work in the printing department. This was the substance
of their conversation. Rathbun, who was called as a
General Counsel witness, did not deny having the con-
versation, although his version differed slightly from that
of Enderby. Rathbun testified in sum as follows: Ender
by asked him if he knew what happened. He said that he
understood she was no longer with the Company. Ender-
by said that she wanted to tell her side, that the Compa-
ny was not fair, that she did a good job, and could not
understand why the Company thought otherwise. Rath-
bun answered that he did not know anything about it,
was not familiar with her work, and could not help her.
Enderby asked what Rathbun thought of her as a person,
or whether he had anything against her. Rathbun an-
swered: "The only thing I've ever heard that disappoint-
ed me a little bit, was the fact that you made the state-
ment in front of the whole office, after you started to
work, that you understood that this company had a lot
of union problems, and that you would never come
across a union picket line . . . if you ever have another
job, don't volunteer that kind of information, because if
you don't tell people, and they never have a strike, you
never have to say whether you will or not. That's the
only thing that I think you did here that, you know,
didn't impress me." Rathbun explained that "You sup-
posedly made the statement to the people upstairs that
your husband was very strong for unions, and you
would never cross a picket line, no matter what." Ender-
by responded that Rathbun misunderstood her, and that
she meant only that she was afraid to cross a picket line.
Rathbun testified that early in Enderby's employment he
learned of her remark from his wife, who worked in the
office, and who told him that Enderby told some of the
office personnel that she would never cross a picket line.
Rathbun testified that the remark did not bother him, but
that he did not think it was smart of Enderby to say it.
Rathbun further testified that he did not discuss En-
derby's remark with comptroller Brett Bauer , who dis-
charged Enderby, that he was not familiar with her
work performance, and that he was not involved in
Bauer 's decision to terminate her. It is undisputed that
Rathbun was out of town at the time of Enderby's termi-
nation . Rathbun further testified that he told Enderby
that in his opinion, part of the problem was that the
work really called for a college graduate, i.e., an ac-
countant, although Bauer disagreed.
Enderby testified that when she began her job, comp-
troller Bauer asked her how she would feel about cross-
ing a picket line. She answered: "Why? Is there going to
be a strike?" Bauer responded that he did not know, and
just wanted to know how she felt about it. Enderby said
she would probably be afraid, and asked if there was a
way into work other than the main driveway. Bauer said
there was not. One of them said that they would worry
about it when the time came, and Bauer resumed teach-
ing her the work. Enderby further testified about a con-
versation during the first week of her employment with
accounting clerk Susan Bellard, with whom she was as-
signed to work. Enderby mentioned that her husband in-
jured his back while working for the railroad. Bellard
asked if he needed a lawyer. Enderby answered that he
VENTURE PACKAGING
got one through his union Shortly thereafter , Bellard
asked Enderby if her husband would let her cross a
picket line if there were a stake Enderby answered that
he would not want her to work behind a picket line and
that she would be afraid to cross a picket line, but that if
necessary she could work in the printing department
Bauer testified that in late November there were rumors
in the plant of a stake He told Enderby and Bellard that
he did not think there would be a strike, but if it oc-
curred, he would try to notify them at home and would
provide safe transportation across the picket line Bauer
testified that there were no questions or comments Bel-
lard, who was also presented as a company witness, cor-
roborated Bauer 's testimony She testified that he did not
ask them any questions , but that after he left , Enderby
said that she did not know whether she would cross a
picket line Bellard told her not to worry about it be-
cause "the guys will make sure we get in safely " Bellard
testified that this was their only conversation about the
matter She testified that she did not tell either Rathbun
or his wife about the conversation but that she did tell
Deborah Iscman, another office employee Iscman was
presented as a company witness , but was not asked about
the matter
Other than Rathbun, who was called as an adverse
witness, Enderby was the General Counsel's only wit-
ness Enderby did not impress me as a credible witness
She was argumentative Endeiby displayed a tendency to
ramble on, giving answers to questions not asked , inject-
ing her alleged subjective feelings or hearsay concerning
statements by other employees , and to avoid direct an-
swers to questions on cross-examination Enderby's testi-
mony was in certain respects contradicted by her own
writings Enderby testified that when hired she was not
given a copy of the Company 's personnel policy manual
Subsequently she asked Susan Bellard about employee
fringe benefits According to Enderby, about 15 minutes
later comptroller Bauer came into her office and threw a
copy of the manual on her desk, saying that the Compa-
ny did not have a manual pertaining to the office and
"this is strictly for the plant , but I hope this clears things
up " Bauer, in his testimony, denied that alleged incident
occurred Bauer testified in sum that in accordance with
usual company procedure , he gave Enderby a copy of
the manual when she was hired, that most of the manual
provisions pertain to both office and plant personnel, and
that he explained some of the provisions to Enderby and
told her to read the manual Bellard testified that em-
ployees were normally given a copy of the manual
within 1 or 2 days of starting employment Enderby's
personnel file contains a form acknowledgment, dated
November 14 and signed by Enderby , indicating that she
received a copy of the manual and was responsible for
familiarizing herself with the rules and regulations in the
manual If Enderby received the manual in the manner
she described , there would be no such acknowledgment
in the file The manual , which was introduced in evi-
dence, contains provisions that obviously or expressly
pertain to both office and plant personnel, e g , hospitali-
zation and life insurance coverage (Enderby signed a
waiver of coverage)
1239
A major factual issue presented in this case was
whether Bellard trained Enderby to do invoicing, which
was one of Bellard 's normal tasks Enderby testified in
sum that after their conversation about a picket line, Bel-
lard kept putting off training on invoices and never
trained Enderby to do that work According to Enderby,
about February 1 Bellard gave her incomplete written
instructions on invoicing , but told her that she did not
want Enderby doing invoices Enderby testified that Bel-
lard said she might do something else, like "termina-
tions," thereby inferring that Bellard had advance knowl-
edge that Enderby would be terminated Documents pre-
sented in evidence , including entries in Enderby 's hand-
writing, confirmed Bellard 's testimony to the effect that
she gave Enderby adequate training on invoicing The
Company presented in evidence four pages of notes,
which Enderby admitted that she wrote while watching
Bellard show her invoicing The notes pertain to com-
puter input, which is the last phase of the work It is un-
likely that Bellard would have taught Bellard this phase
of invoicing without first showing her the preparation,
which is the bulk of the work The Company also pre-
sented in evidence extensive written information and in-
structions on preparation for invoicing Enderby in her
testimony reluctantly admitted having seen at least some
of the written material, which includes her own marginal
notes Enderby testified that the written material con-
tamed a directive to ask Bellard about something How-
ever, the material in evidence contains no such entry I
also have a problem with Enderby 's version of her con-
versation with President Rathbun Even if the Company
were discriminatorily motivated , it is unlikely that Rath-
bun would have ignored Enderby 's defense of her work,
and proceeded directly to the matter of picket lines
Rathbun probably would have made at least a token ref-
erence to the Company 's professed reason for her dis-
charge
I have no comparable reservations regarding the testi-
mony of the other witnesses (I have taken into consider-
ation the fact that in the first unfair labor practice pro-
ceeding, Judge Goerlich did not credit the testimony of
Rathbun and Bauer in certain respects) I credit Rath-
bun's version of his conversation with Enderby Unless
otherwise indicated , I do not credit Enderby's testimony
when it conflicts with that of the other witnesses As I
do not credit Enderby's testimony that Bauer asked her
how she would feel about crossing a picket line, it fol-
lows that I am recommending that the complaint allega-
tion of unlawful interrogation be dismissed
The Company's answer asserts that Enderby "was dis-
charged for just cause based on her inability to perform
her assigned job duties, her attendance and tardiness
problems and other legitimate nondiscriminatory business
reasons "
Comptroller Bauer testified in sum as follows The
Company employed an accountant (Kim Wood) in its
office She left in September 1986 Bauer , himself a CPA,
felt that he had developed enough experience in running
the financial end of the business to dispense with any
need for another accountant (Bauer became comptroller
in August 1985) However, as the Company was grow-
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, he felt that he needed another clerical employee in
the accounting office. President Rathbun felt that the
Company still needed another accountant, but he let
Bauer have his way. Bauer placed a blind newspaper ad
to screen applicants (I do not regard this fact as demon-
strating that the Company sought to screen out union ad-
herents). Enderby responded to the ad. Bauer inter-
viewed and hired her. Bauer planned that Enderby
would prepare the payroll and assist Bellard with invoic-
ing. He anticipated that Enderby would normally spend
all day Monday and about 2 hours on Tuesday preparing
the payroll. She would spend the rest of the week work-
ing with Bellard on invoicing. By learning to do the in-
voicing, Enderby could back up Bellard, doing the work
in her absence and enabling her to perform other tasks.
Bauer emphasized to Enderby that it was important for
her to be at work on Mondays in order that payroll
preparation proceed on schedule so that paychecks could
be distributed on Thursday without a last-minute rush.
Bellard, a nonsupervisory employee, was primarily re-
sponsible for training Enderby. Bauer supervised both,
although he followed a practice of minimal involvement
in their day-to-day work. Bauer anticipated that he
would evaluate Enderby's performance at the end of her
90-day probationary period, which he regarded as an
adequate period of time to enable her to learn and per-
form the work. From time to time Bauer asked Bellard
how Enderby was doing. Bellard invariably answered
that Enderby was not picking up the work fast, but they
should give her more time and she probably would come
around. By the 60th day of Enderby's employment,
Bauer was concerned. He pressed Bellard for more infor-
mation. Bellard admitted that Enderby had trouble doing
the work, and had made several serious errors in prepar-
ing billings. Bauer also learned from Bellard and Debo-
rah Iscman that when Bellard was absent from work,
Enderby failed to perform work assigned to her and left
early or wasted time when there was work to be done,
thereby leaving the work for others. Bauer also checked
Enderby's timecards, and concluded that her absences
were excessive. Her total record indicated that she was
absent 6-1/2 days, left early on 4 days, and was late 1
day. However, Bauer regarded as most significant that
she was absent or left early on 5 of 13 Mondays during
her tenure. Bauer did not compare her record with that
of other past or present office employees. However, he
did not recall any such attendance problems with other
employees, and the Company's records confirm his opin-
ion. (In light of Bauer's testimony, I do not regard his
failure to compare Enderby's attendance record with
those of other employees as demonstrating a discrimina-
tory motive.)
Bauer testified that at the beginning of February he
tentatively decided to terminate Enderby at the end of
her probationary period. On Monday, February 9, En-
derby called to say that she would not come in to work
because of snow conditions. By noon the roads were
cleared, but Enderby did not come in at all that day.
(Enderby in her testimony never explained why she
could not come in for the afternoon.) Bauer then made a
firm decision to terminate her. The next day Bauer told
Enderby that she was not progressing well, not perform-
ing the work in a timely fashion, and that her attendance
contributed to, but was not the main reason for, her ter-
mination. Bauer testified that although pressed by Ender-
by, he did not go into detail because he saw no need to
humiliate her. For the first time, Enderby told Bauer that
she was not given an opportunity to do invoicing. Bauer
testified in sum that he terminated Enderby because of
her poor performance, that the decision was his own,
and that he did not consult with Rathbun before termi-
nating her. Subsequently Bauer assigned another employ-
ee to prepare the payroll. The employee did not perform
well, and was also terminated. Eventually Bauer assigned
Bellard to prepare the payroll, and he found no need for
another employee.
Ballard and Iscman corroborated Bauer's testimony
concerning Enderby's poor performance. Bellard testified
in sum that Enderby was very slow in performing the
work, had difficulty in catching on how to do it, and
failed to perform work assigned to her when Bellard was
absent. As a result Bellard fell behind on her own work.
Bellard felt sorry for Enderby (whose husband was not
working) and tried to teach her. About February 1
Bauer asked Bellard how Enderby was doing. As usual
Bellard said that Enderby was very slow, but they could
work around it. Bauer asked whether Enderby could
back her up if something happened. Bellard conceded
that she could not.
I find that Enderby's conversations with Bellard con-
cerning Enderby's husband and the impact of a picket
line made their way through the office grapevine, among
the clericals, to Rathbun's wife, and then to Rathbun,
reaching him in a disturbed and exaggerated version.
The evidence indicates that such gossip spread quickly
around the plant, and was not always accurate, e.g., the
rumors of a strike. Rathbun's statements to Enderby
were at least arguably unlawful in that they could rea-
sonably be interpreted as a threat that the Company
would not hire an employee who volunteered that he or
she would not cross a union picket line. However, the
General Counsel does not allege the statements them-
selves as an unfair labor practice. Rather, the General
Counsel contends that the statements demonstrate that
the Company discharged Enderby because they were not
sure she would work behind a picket line. I find that the
General Counsel presented a prima facie case, in that
Rathbun's remarks were susceptible of an interpretation
that Enderby was discharged at least in part because she
indicated that she might not cross a picket line in the
event of a strike at the plant.3 However, on the basis of
all the evidence, I find that the Company has met its
burden of proving that it would have discharged Ender-
by in the absence of her protected activity, and specifi-
cally that Enderby was discharged because of poor job
performance during her probationary period, and not for
discriminatory reasons. First, the evidence indicates that
3 Enderby 's comments to Bellard constituted protected activity under
Sec. 7 of the Act. See United States Steel Corp. v. NLRB, 711 F.2d 772,
775-776 (7th Cir. 1983). If the Company discharged Enderby because of
her comments or because of Rathbun 's interpretation of her comments,
i.e., that she would show support for a strike, then her discharge would
be unlawful.
VENTURE PACKAGING
Rathbun was not involved in her discharge Rathbun left
the hiring and firing of accounting department personnel
to comptroller Bauer Rathbun so demonstrated when he
permitted Bauer to lure a clerical employee notwith-
standing his own view that that job required an account-
ant Rathbun had no knowledge of Enderby 's job per-
formance and was not even around when she was dis-
charged Rathbun expressed his opinions to Enderby in
strong terms, and probably in an unlawful manner, but
he did not tell Enderby that she was fired for this reason,
or suggest that he was involved in her termination
Second , the evidence indicates that by the end of the
first week of Enderby 's employment , the Company knew
all that it would ever know about her views concerning
picketing, strikes, or other union activity Indeed , Ender-
by testified that during her job interview she told Bauer
that her husband was a union member If the Company
were discriminatorily motivated against Enderby , then it
probably would have discharged her in November, or at
the earliest possible opportunity Enderby's poor work
performance provided the Company with ample oppor-
tunities to terminate her, if it were seeking a pretext
Nevertheless the Company kept her on until the end of
her probationary period
In an effort to explain away this factor , the General
Counsel advanced the theory that after the first week of
her employment, the Company kept Enderby on for
nearly 3 months, doing little or no useful work, and
without giving her adequate training, all in order to pro-
vide an excuse for terminating her in February The
General Counsel 's theory also rests on the premise that
accounting clerk Bellard , although a nonsupervisory em-
ployee, acted as the Company's union-busting agent in
the office by deliberately sabotaging Enderby 's career
(The complaint does not allege that Bellard was a com-
pany agent ) The theory falls on the facts The credible
evidence indicates that Bellard was sympathetic to En-
derby, that she tried to train her, that Enderby was given
adequate training , and that the Company gave her the
benefit of the doubt by retaining her through her entire
probationary period in order to permit her to demon-
strate an ability and willingness to perform the work
1241
Therefore the factors of timing and the Company 's over-
all course of conduct toward Enderby weigh against
finding a discriminatory motive Third, Enderby's job
performance , including her attendance , did not measure
up to the Company 's standards Enderby demonstrated
her own indifference by failing to show up at all to work
on February 9, although she knew how important it was
for her to be at work on Mondays After her termina-
tion, Bauer tried unsuccessfully to employ another
person to do the work , and then simply dispensed with
the idea by assigning Bellard extra duties (which she per-
formed) I have taken into consideration the Company's
animus toward unionization, the unlawful conduct as
documented by Judge Goerhch, and my own findings in
the severed cases 4 However , I find for the reasons dis-
cussed that the Company did not violate the Act by dis-
charging Enderby
CONCLUSIONS OF LAW
1 The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The Company has not violated the Act as alleged in
Case 8-CA-19989
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ea
ORDER
The complaint in Case 8-CA-19989 is dismissed
• As indicated , Judge Goencch's decision is still pending on exceptions
filed with the Board In the absence of a Board decision, I have accorded
a presumption of validity to Judge Goerlich 's credibility resolutions and
findings of operative fact See Universal Camera Corp v NLRB, 340 U S
474, 494 (1951)
5 If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
posa