N.L.R.B. v. Cook Family Foods, Ltd., Nos. 93-6488

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtDAVID A. NELSON
Citation47 F.3d 809
Parties148 L.R.R.M. (BNA) 2513, 129 Lab.Cas. P 11,285 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COOK FAMILY FOODS, LTD., Respondent.
Decision Date21 February 1995
Docket NumberNos. 93-6488,94-5386

Page 809

47 F.3d 809
148 L.R.R.M. (BNA) 2513, 129 Lab.Cas. P 11,285
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
COOK FAMILY FOODS, LTD., Respondent.
Nos. 93-6488, 94-5386.
United States Court of Appeals,
Sixth Circuit.
Argued Oct. 3, 1994.
Decided Feb. 21, 1995.

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Joseph Oertel (briefed), N.L.R.B., Office of the Gen. Counsel; and Aileen A. Armstrong, Deputy Associate Gen. Counsel, Howard E. Perlstein (briefed), and David A. Fleischer (argued), N.L.R.B., Appellate Court Branch, Washington, DC, for petitioner.

Kelvin C. Berens (argued and briefed), Mark McQueen, and Mark A. Fahleson, Berens & Tate, Omaha, NE, for respondent.

Before: KENNEDY, MARTIN, and NELSON, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

The National Labor Relations Board has applied to this court for enforcement of orders entered by the Board in two separate administrative proceedings. In the first such proceeding the Board adjudicated charges that the respondent, Cook Family Foods, Ltd., committed unfair labor practices prior to a representation election held on September 20, 1991. The second proceeding arose from Cook's subsequent refusal to bargain with the International Brotherhood of Firemen and Oilers, the labor union certified by the Board as the winner of the election.

The first proceeding resulted in findings that Cook was guilty of several unfair labor practices. Only one of these findings is challenged here: a finding that three probationary employees said by the company to have been discharged for unsatisfactory performance on the job were in fact discharged for engaging in protected activities on behalf of the union. We are asked to decide whether the Board's resolution of the wrongful discharge question was supported by substantial evidence on the record as a whole.

Having examined the totality of the evidence, we conclude that the Board did not

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have adequate support for its finding that Cook acted illegally in firing the three employees. We shall therefore deny enforcement of the Board's first order insofar as these employees are concerned, while granting enforcement otherwise.

The underlying question presented in connection with the second proceeding is whether the Board abused its discretion in refusing to grant Cook an evidentiary hearing on a claim that the results of the election were tainted by repeated acts of vandalism and intimidation by supporters of the union. We do not reach this question, the Board having conceded that the union did not win the election if the ballots of the three discharged employees are not to be counted.

Subsequent to oral argument the Board represented to us that Cook has been engaged in negotiations with the union. The Board contends that these negotiations operated as a waiver of Cook's objection to certification of the union as bargaining agent, notwithstanding that Cook and the union had expressly agreed that the company was not recognizing the union by negotiating with it. We conclude that there was no waiver. Accordingly, we shall deny the application for enforcement of the order in which Cook was directed to bargain with the union. Our ruling will have the effect of allowing another representation election to be held.

I

In February of 1991, the administrative hearing record indicates, respondent Cook began processing "green" hams at a newly built plant in Grayson, Kentucky. Cook had previously performed this work at a plant in Hamtramck, Michigan.

Approximately 400 people were employed at the Grayson plant in the spring of 1991. More than 360 of these were bargaining unit employees. Among the people in the latter category were a woman named Toby Kouns, who was hired on May 3, 1991, and Patty Kouns, Ramona Martin, and Sharon McGinnis, all of whom were hired on May 13, 1991.

Three of the named individuals were discharged on June 14, 1991. There was a question as to whether the fourth, Sharon McGinnis, quit voluntarily or was discharged on that day as well. The union filed an unfair labor practice charge alleging that all four were fired illegally, but an administrative law judge ultimately dismissed the charge as to Sharon McGinnis, holding that she had resigned.

The record indicates that the first three weeks of an individual's employment at the Grayson plant were considered a training period. Newly hired workers were also told, in a handbook issued by Cook, that there would be a 13-week "trial period" during which the company would look closely at job performance and work behavior "to see if you will become a regular part of our 'Family'...."

The four women in question were trained to "bag" hams by tying nets over them as they came down a conveyor belt on a production line known as the curing line. There were typically eight people engaged in this work on the curing line, and each worker was expected to bag six to eight hams per minute.

During her first week on the job, Ramona Martin testified, one of her group leaders timed her at four to five hams per minute. By the time she was discharged, five weeks after she was hired, Ms. Martin was capable of bagging 10-14 hams per minute, according to her testimony. Patty Kouns had been timed at 10-11 hams per minute, Ms. Kouns testified, and there was testimony from Bill Griffith, a group leader, that after the four women completed their training period each of them was capable of doing a good job when she wanted to. The problem, according to Mr. Griffith, was that they often did not want to--particularly when their foreman, or "coordinator," was not in the vicinity.

On June 5, according to Group Leader Griffith, he saw these individuals--or three of them, at least 1--slowing production down by letting hams go by without bagging them. He had seen this sort of behavior on their

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part before. The women would just stand and talk, said Griffith, each one holding a ham and doing nothing with it while other hams were allowed to go by unbagged.

Griffith testified that he asked the women if there was a problem and why they were not working. He further testified that he told them that it was necessary to keep production up and that they would have to keep bagging when the coordinator--a man named John Wenson--left the room. (Mr. Wenson was in charge of the receiving and grading operation, as well as the curing room, and his duties took him from one place to the other.) The women said nothing in response, according to Griffith, but they went back to work.

The same kind of production slowdown happened again, Griffith testified, on Thursday, June 6. Again the women slowed down their bagging as soon as John Wenson left the room, and again Griffith asked them if there was a problem. This time they told him that they were wet and cold, he said. His response was that "socks" had been ordered for the air conditioning vents so that cold air would not be blown directly out on the floor. The women's production improved after this exchange, Griffith testified.

The production problem recurred on Friday, June 7, according to Griffith: "as soon as John left the room, the ladies just stopped bagging altogether." Griffith said that he reported this fact to John Wenson and was told to go back and talk to the women.

Coordinator Wenson testified that he first became aware of the problem when Billy Griffith brought it to his attention on June 7. Wenson said that he then went up to the "pickle mezzanine," located a floor above the curing room, and observed the bagging line from the mezzanine. What he saw, he testified, was the four individuals talking and not doing much of anything. The other people on the line "were working a lot harder, trying to get everything done." Wenson testified that he then had Billy Griffith "counsel" the four individuals who were not working.

What Griffith told them on this occasion, according to Griffith, was that "we would have to keep production going, that we needed to get the picnics [picnic hams] bagged, even when John was out of the room." After he spoke with them, Griffith said, their production went up again.

On Monday, June 10, Griffith testified, the women again slowed down their bagging as soon as Wenson left the room. Upon his return Wenson asked Griffith what was going on, according to the latter's testimony, and Griffith responded that the same thing was going on. Again, Griffith said, he was told to go back and talk to the ladies, which he did.

Mr. Wenson testified that he noticed the curing line problem before lunch that day, some 900 picnic hams having accumulated, unbagged, in vats at the end of the line. The normal complement of unbagged hams was only one or two hundred.

Wenson then went to his immediate superior, Processing Manager David Bolio, and reported the problem to him. Bolio and Wenson went back to the pickle mezzanine together, according to the testimony of both men, and they saw the four individuals talking together and not doing their jobs. The other people on the line were working and trying to keep everything caught up. Bolio told Wenson that the situation was unacceptable and that Wenson had to have his group leaders counsel the four individuals who were not working. Wenson testified that he instructed Griffith to do so; that he saw Griffith walk up to the women; and that thereafter everything went fine for the remainder of the day.

Production proceeded smoothly on Tuesday, June 11, according to Griffith and Wenson, but not on Wednesday, June 12. After lunch that day, Wenson said, there were again 900 or 1000 unbagged hams at the end of the line.

Wenson said that Processing Manager Bolio and the plant manager, Les Johnson, were apprised of the problem. Bolio and Johnson went to the mezzanine, both men testified, where they observed that production ran smoothly when Wenson was in the curing room area. No hams went by unbagged. When Wenson left the area, Johnson testified, he saw the four individuals--

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Patty, Toby, Sharon and...

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15 practice notes
  • Pleasantview Nursing Home, Inc. v. N.L.R.B., No. 01-2288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 2003
    ...when reviewing factual questions, we will not serve "as a mere rubber stamp for the administrative agency." NLRB v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir. 1995) (quoting YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th The NLRA protects the right of workers to unionize and bargain collectivel......
  • Opportunity Homes, Inc. v. N.L.R.B., Nos. 95-5605
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 5, 1997
    ...NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983); NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995). If he or she carries this burden, the employer may avoid liability by proving by a preponderance of the evidence that it......
  • Pleasantview Nursing Home, Inc. v. National Labor Relations Board, Nos. 01-2288/2533 (6th Cir. 12/10/2003), Nos. 01-2288/2533
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 2003
    ...when reviewing factual questions, we will not serve "as a mere rubber stamp for the administrative agency." NLRB v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir. 1995) (quoting YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th Cir. The NLRA protects the right of workers to unionize and bargain collec......
  • Uforma/Shelby Business Forms, Inc. v. N.L.R.B., Nos. 96-5170
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 23, 1997
    ...that protected union activity "was a substantial or a motivating factor in the discharge[s]." See NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995) (quoting NLRB v. Transportation Management Corp., 462 U.S. 393, 400, 103 S.Ct. 2469, 2473-74, 76 L.Ed.2d 667 (1983)). A response......
  • Request a trial to view additional results
15 cases
  • Pleasantview Nursing Home, Inc. v. N.L.R.B., No. 01-2288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 2003
    ...when reviewing factual questions, we will not serve "as a mere rubber stamp for the administrative agency." NLRB v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir. 1995) (quoting YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th The NLRA protects the right of workers to unionize and bargain collectivel......
  • Opportunity Homes, Inc. v. N.L.R.B., Nos. 95-5605
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 5, 1997
    ...NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983); NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995). If he or she carries this burden, the employer may avoid liability by proving by a preponderance of the evidence that it......
  • Pleasantview Nursing Home, Inc. v. National Labor Relations Board, Nos. 01-2288/2533 (6th Cir. 12/10/2003), Nos. 01-2288/2533
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 2003
    ...when reviewing factual questions, we will not serve "as a mere rubber stamp for the administrative agency." NLRB v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir. 1995) (quoting YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th Cir. The NLRA protects the right of workers to unionize and bargain collec......
  • Uforma/Shelby Business Forms, Inc. v. N.L.R.B., Nos. 96-5170
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 23, 1997
    ...that protected union activity "was a substantial or a motivating factor in the discharge[s]." See NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995) (quoting NLRB v. Transportation Management Corp., 462 U.S. 393, 400, 103 S.Ct. 2469, 2473-74, 76 L.Ed.2d 667 (1983)). A response......
  • Request a trial to view additional results

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