National Labor Relations Board v. Cook Family Foods, Ltd.
Docket: 93-6488, 94-5386
Court: Court of Appeals for the Sixth Circuit; February 21, 1995; Federal Appellate Court
The National Labor Relations Board (NLRB) sought enforcement of its orders against Cook Family Foods, Ltd. in two administrative proceedings. The first involved allegations of unfair labor practices prior to a September 20, 1991, representation election, where Cook was found guilty of various violations, including the wrongful discharge of three probationary employees for engaging in union activities. The court, however, found insufficient evidence to support the claim of illegal discharge for these employees, thus denying enforcement of the NLRB's first order regarding them while upholding other aspects.
The second proceeding dealt with Cook's refusal to bargain with the International Brotherhood of Firemen and Oilers, the certified union. The court did not address Cook's claim of election misconduct due to alleged vandalism and intimidation, as the NLRB conceded that the election results would be void if the three discharged employees' votes were excluded. The Board argued that Cook's subsequent negotiations with the union constituted a waiver of objections to the union’s certification, but the court disagreed, ruling there was no waiver and denying enforcement of the order to bargain, which allows for a new representation election.
Background information notes that Cook began operations at a new plant in Grayson, Kentucky, in February 1991, employing around 400 workers, over 360 of whom were bargaining unit employees. Four individuals, including Toby Kouns and Patty Kouns, were discharged on June 14, 1991. The union charged that their dismissals were unlawful, but an administrative law judge found that one individual, Sharon McGinnis, had resigned rather than being discharged.
During the initial employment period at the Grayson plant, new hires underwent a three-week training followed by a 13-week trial period to evaluate their job performance. The four women in question were trained to bag hams on the curing line, where each was expected to bag six to eight hams per minute. Initially, Ramona Martin was bagging only four to five hams per minute but improved to 10-14 hams per minute by week five. Another employee, Patty Kouns, was consistently bagging 10-11 hams per minute.
Group Leader Bill Griffith noted that the women often slowed down production, particularly when foreman John Wenson was not present. On June 5, Griffith observed them allowing hams to pass unbagged while they engaged in conversation. He addressed the issue with them, emphasizing the need to maintain production. Their output improved temporarily after his intervention.
On June 6, the same slowdown occurred, with the women claiming they were cold. Griffith informed them that measures were being taken to address the temperature issue, which led to an improvement in their performance. However, on June 7, production slowed again, prompting Griffith to report this to Wenson, who then observed the women from above and noted their lack of activity compared to other workers.
Despite repeated conversations with the women, including reminders to maintain productivity even in Wenson's absence, the issues persisted through June 10, with Griffith consistently tasked with addressing the slowdown.
Mr. Wenson observed a significant backlog of approximately 900 unbagged picnic hams on the curing line, far exceeding the normal count of one to two hundred. He reported this issue to Processing Manager David Bolio, who deemed the situation unacceptable and instructed Wenson to have the four individuals not working—Patty, Toby, Sharon, and Ramona—counseled. Wenson directed Griffith to speak with them, after which production improved for the remainder of that day.
However, on June 12, Wenson noted another backlog of 900 to 1,000 unbagged hams post-lunch. Bolio and Plant Manager Les Johnson inspected the area and observed that production was efficient only when Wenson was present. Johnson noticed a significant drop in productivity when Wenson left, timing the four individuals at only two to four bags per minute. After alerting Bolio, production returned to normal once again.
On June 12, just before her shift ended, Sharon McGinnis apologized to Wenson for her lack of productivity, acknowledging her slow work pace. The issue with the four women recurred on June 13, prompting Bolio to involve Human Resources Director Steve Wennerholt. Initially, production appeared smooth, but it soon deteriorated when Wenson was called away, leading Wennerholt to witness the four women ceasing work altogether. He identified them and expressed his frustration, suggesting their termination. Only the plant administrator, Tim Messick, had the authority to fire employees. Wennerholt communicated his concerns to Messick, who advised a thorough investigation before making any decisions. Messick noted Wennerholt's agitation regarding the situation.
Wennerholt conducted an investigation involving interviews with several employees, including Bill Griffith and Chris Hale. Hale indicated that Ramona Martin could perform her job but was unwilling to do so, suggesting that Toby and Patty Kouns were performing better than Martin. Following a meeting with Wenson, Bolio, and Johnson, the group unanimously recommended the discharge of all four women, which was communicated to Messick, who authorized their termination the next morning.
Sharon McGinnis decided to quit after an unpleasant interaction with Griffith, who had criticized her for not returning to work promptly after a break. While she denied being told she was bagging too slowly, she acknowledged that Hale had mentioned her pace. Martin testified that Griffith and Wenson informed McGinnis about her slow work rate and that Griffith used vulgar language towards her.
Upon being notified of her dismissal, Martin claimed that her production rate was inaccurately reported as two and a half hams per minute, asserting that the firing was due to her union activities. She requested to speak with those who had timed her, but Wennerholt denied this request.
Similarly, Patty Kouns contested her dismissal, stating that the cold conditions affected her ability to work quickly, and accused Wennerholt of lying about her performance. She claimed that the reason for her termination was not related to her work output. Toby Kouns, upon her termination, was told she slowed down when coordinators were absent, and she requested to prove her performance but was denied. She asserted that she had been timed at over ten hams per minute and that there were no prior warnings regarding her performance from any company officials. All three women confirmed they had not received any verbal counseling before their dismissals regarding their work speed.
Griffith did not specify a number of hams to the women on the production line but frequently spoke to them when their output decreased, as confirmed by coworkers Chris Stone and Brenda Blake. Stone observed that Ramona Martin and Toby and Patty Kouns often had conversations while allowing many hams to go unbagged, negatively impacting the line's productivity and causing frustration among other workers. He noted that Griffith's interventions resulted in significant improvement in their performance each time. Blake echoed these observations, reporting that the women slacked off without supervision and that she complained to John Wenson about their inefficiency, indicating it forced others to pick up their slack. Tim Dinkens corroborated their poor performance, stating they were often seen chatting instead of working.
Despite the evidence of their inadequate performance, the union, supported by the NLRB General Counsel, argued that the women were terminated due to their union activities. They had participated in organizing efforts, distributed union materials under surveillance, and one, Patty Kouns, was seen gathering signatures shortly before their dismissal. Coordinator Wenson expressed displeasure about their handbilling activities, although there was no evidence he took further action. Testimony also revealed Ramona Martin's pursuit of safety data sheets, and a meeting with supervisor Dave Bolio, where they voiced concerns about workplace conditions. Bolio reassured them they were not going to be fired, labeling them as good workers, though he was not questioned about this statement during his testimony.
The Administrative Law Judge (ALJ) determined that the General Counsel established a prima facie case demonstrating that the termination of three employees violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act. These sections prohibit interference with employees' organizational rights and discrimination against employees to discourage union membership, respectively. The ALJ found that the employer failed to prove that the terminations would have occurred in the absence of union activities. Consequently, the ALJ recommended that the company cease discriminatory practices, stop other unfair labor practices, and reinstate the discharged employees, Toby Kouns, Patty Kouns, and Ramona Martin. A Board panel affirmed these findings and the recommended order.
The threshold for determining if a discharge constitutes an unfair labor practice focuses on whether it stemmed from 'anti-union animus.' The General Counsel bears the burden of proving that the employees’ protected actions were a significant factor in their termination. If such evidence is presented, the employer can defend itself by demonstrating, with preponderance, that the discharge was also based on unprotected conduct. The Board concluded that anti-union animus influenced the discharges of the three women, rejecting the employer's claim that their terminations were due to poor performance.
The ALJ found that Group Leader Griffith did not adequately counsel the women about their work performance, contradicting his testimony. However, the reviewing court noted that, upon examining the evidence collectively, it was clear that the women occasionally failed to meet performance standards and that Griffith did address these issues with them.
The ALJ recognized that the three women occasionally underperformed, yet claimed that other employees had similar issues, a statement lacking record support. In contrast, evidence indicated that the other baggers worked diligently while Ramona Martin and her colleagues did not, leading to increased workloads for their peers, even prompting one worker to request a transfer. Notably, Billy Griffith reported that the women were consistently poor performers since their hiring in mid-May, but they were not terminated until June 14, shortly after they circulated a union petition and complained about workplace conditions. The ALJ suggested that if the employer had pure motives, the women should have been dismissed earlier. However, the reasoning was deemed unconvincing; the training period is meant for skill development, and there was no proof that the women were untrainable. The probationary phase serves to assess performance over time, and firing them after five to six weeks did not seem excessively delayed. The ALJ's ruling could imply that employers should terminate union activists immediately upon any performance decline, contradicting labor law intentions. Evidence showed that the women could bag quickly but often slowed their pace, burdening their coworkers. Griffith frequently addressed their reduced performance, and management observed the issue with concern, which the ALJ dismissed as theatrical. Ultimately, the record indicated that their substandard performance would have warranted termination irrespective of their union involvement.
A letter from the Board to the court indicated that Cook had been negotiating with the Union since July 1994, leading the Board to argue that such bargaining constituted a waiver of the Company's objections to union certification, referencing Peabody Coal Co. v. NLRB. Cook, in its response, highlighted that their discussions were based on an understanding that the Union would not be recognized, which was documented in a signed agreement stating that the discussions would remain confidential. The Board noted that these settlement discussions aligned with its recommendations in Peabody Coal, where it suggested employers consult with unions before making unilateral changes. The court acknowledged that limited recognition could imply a waiver of objections to union representation but clarified that the discussions were not recognition of the Union.
In Case No. 93-6488, the court denied enforcement regarding discharges but granted it in other respects. In Case No. 94-5386, the court denied enforcement for previously stated reasons. Testimony from witnesses regarding the performance of four women, including Chris Hale, who believed their performance did not warrant firing, was discussed. Chris Hale's husband had been fired, but the ALJ found his discharge lawful. Group leaders, while not classified as supervisors under the National Labor Relations Act, were likely part of the bargaining unit, with Chris Hale being a union supporter. The ALJ determined that legal conclusions were necessary regarding whether individuals had been 'counseled.'
The Board's conclusion of anti-union animus was based on Coordinator Wenson's remarks and additional circumstances, including an alleged threat by Plant Administrator Messick to relocate the plant if the Union won the election. The company contested the evidence supporting Messick's alleged statement but did not seek to deny enforcement of the portion of the Board's order based on other findings of unfair labor practices. The court concluded that anti-union animus was sufficiently demonstrated regardless of Messick's alleged threat.
Credibility determinations typically rest with the Board, yet this court refuses to uphold unfair labor practice findings based solely on uncorroborated testimony from individuals who could benefit financially from the findings. In this case, the Administrative Law Judge (ALJ) relied on testimony from interested parties, while disinterested witnesses indicated that the employees in question exhibited poor work performance, corroborating complaints about their lack of productivity. The ALJ noted that other employees shared similar performance issues, but this assertion lacks evidence and contradicts testimonies from conscientious workers, who reported that the underperformance of the women led to increased workloads for others, prompting one to request a transfer.
The ALJ observed that the women were deemed poor employees from their employment start but did not act to terminate their employment until after they engaged in union activities. The reasoning that the company should have fired them during training rather than shortly after is deemed unpersuasive, as the purpose of a training and probationary period is to evaluate employee performance over time. The ruling suggests a problematic message to employers: if they hire a union activist whose performance declines, they should terminate immediately to avoid potential legal repercussions, even if improvement is possible. This interpretation raises concerns regarding its alignment with the objectives of labor laws.
Evidence indicates that the women terminated by Cook consistently reduced their productivity from a capable rate of 10 or more hams per minute to 2-4 hams, negatively impacting their colleagues. Group Leader Griffith frequently addressed their performance issues, resulting in improved output when he did. Management's concerns about the employees' performance were observed from above, countering the ALJ's dismissal of these concerns as mere "high-level dumb-shows." The record strongly supports that the terminations were due to inadequate performance, independent of the employees' union involvement.
Subsequently, the Board noted that Cook's attorney had communicated to an NLRB regional director that negotiations with the Union had been ongoing since July 1994, implying a waiver of objections to union certification as per Peabody Coal Co. v. NLRB. However, Cook clarified that these discussions were based on the mutual understanding that they did not signify union recognition, as documented in a written agreement.
The settlement discussions align with the Board's previous recommendations, which suggested consultation with the union before making unilateral changes in response to union certification challenges. The court noted that limited recognition could potentially waive objections to union representation, though the specific agreement in question did not imply recognition.
The court ruled to deny enforcement in Case No. 93-6488 regarding the terminations while granting it for other matters, and denied enforcement in Case No. 94-5386 based on the reasons articulated earlier in the opinion.
Witnesses for the company were questioned variably about the performance of four women, with some focusing on the three who were fired. Chris Hale testified that the women's performance did not warrant their termination, but noted her husband, Carl Hale, had been fired lawfully. Group leaders, including Bill Griffith, were not classified as supervisors under the National Labor Relations Act and were likely part of the bargaining unit, with Chris Hale being a union supporter. The ALJ noted that determining whether someone had been "counseled" requires a legal conclusion.
The Board's conclusion of anti-union animus was based on Coordinator Wenson's disparaging remark and additional circumstances, including a purported statement by Plant Administrator Messick threatening to relocate the plant if the union succeeded in an election. While the company contested the validity of Messick's comment, it did not challenge the enforcement of the Board's order stemming from the finding of an unfair labor practice.
While credibility assessments typically fall to the Board, the court expressed reluctance to uphold findings of unfair labor practices based solely on uncorroborated testimony from individuals who might benefit financially from such findings. In this case, all testimony supporting the ALJ's decision came from interested parties, whereas disinterested witnesses testified that the terminated women were underperforming, corroborating that Griffith had confronted them regarding their inadequate production.
