Torbitt & Castleman, Inc. v. N.L.R.B.
| Decision Date | 19 August 1997 |
| Docket Number | Nos. 96-5658,96-5734,s. 96-5658 |
| Citation | 123 F.3d 899 |
| Parties | 156 L.R.R.M. (BNA) 2026, 134 Lab.Cas. P 10,053 TORBITT & CASTLEMAN, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James D. Cockrum (argued), D. Patton Pelfrey (briefed), Brown, Todd & Heyburn, Louisville, KY, for Petitioner/Cross-Respondent.
Joan E. Hoyte (argued and briefed), National Labor Relations Board, Peter Winkler (briefed), National Labor Relations Board, Appelate Court Branch, Aileen A. Armstrong, Deputy Associate General Counsel, Washington, DC, for Respondent/Cross-Petitioner.
Before: KRUPANSKY, NELSON, and BOGGS, Circuit Judges.
In this unfair labor practices case, Torbitt & Castleman, Inc. ("Torbitt") petitions this court for review of the National Labor Relations Board's order, finding that Torbitt had committed unfair labor practices during the critical period before an election. The NLRB seeks enforcement of its February 29, 1996, order. For the reasons discussed below, we grant the NLRB's petition for enforcement in part and grant Torbitt's petition for review in part.
At its facility in Buckner, Kentucky, Torbitt produces jellies, jams, sauces, and other condiments, and manufactures its own plastic bottles for those products. Torbitt's operation is organized into several departments, including jelly, syrup, blow molding, and shipping and receiving. It employs 170 employees, of which approximately 120 are hourly production and maintenance employees; the remaining 50 are office staff.
The majority of the production and maintenance employees work on one of two shifts, starting at 6:00 a.m. and 2:30 p.m. A third shift of employees work mostly in the blow molding department, which operates 24 hours a day. The company's office hours are generally 8:00 a.m. to 4:00 or 5:00 p.m.
Torbitt's 1993 fiscal year was the worst in its history, due to events such as losing its largest jelly account and the closing of one of its peanut butter accounts. As a result, the company began assessing its operations and hired a consultant, William M. Mercer, Inc. ("Mercer") to assist in analyzing the company's problems. Torbitt also instituted a wage freeze.
In May 1994, Mercer prepared recommendations, which it gave to Torbitt's president, Steven McDonald, for presentation to Torbitt's board of directors. Mercer's recommendations focused on improving the company's competitive position in the market by creating, attracting, and retaining a more effective workforce through a new and different wage structure, a shift differential, new job bidding procedures, and a "gainsharing" program. The overall concept recommended by Mercer was to create an environment of cooperation and empowerment among employees. In June 1994, the board of directors approved Mercer's recommendations and these plans and concepts were announced to the company's employees in meetings conducted by McDonald in late June.
After the board of directors approved Mercer's recommendations, General Drivers, Warehousemen and Helpers Local Union No. 89 ("the union"), which is affiliated with the International Brotherhood of Teamsters, AFL-CIO, began an organizational drive among Torbitt production and maintenance employees. The company learned of the drive by August 9 and began an anti-union campaign, including distributing anti-union literature to the employees and having McDonald and Torbitt's chief operating officer, Mike Upchurch, conduct a series of anti-union employee meetings. Around October 1, Barbara Wry, an independent consultant who had been hired by Torbitt to implement the gainsharing program, began participating in these meetings.
During these meetings, Wry and Upchurch explained the details of the gainsharing program, which called for "improvements in productivity," reduction in the cost of operations, and the sharing of all "gains" realized between the company and its employees. Wry and Upchurch also discussed the formation of certain committees and requested that employees volunteer to serve on those committees. Several employees volunteered and, from those employees, the company randomly selected members for the "improvement team," which also had one supervisor on it. On October 18, 1994, the Company posted the following memorandum from the improvement team:
The Improvement Team has been meeting to discuss methods of identifying problems at T & C, and implementing successful solutions that will hopefully improve our operations' efficiency, safety and overall quality of life. We need your help in attacking these issues! We need to know from each and everyone [sic] of you, what you think our major problem[s] are and how they can be effectively solved.
Suggestion boxes will be installed later this week in all key areas. We hope to have them in place on Wednesday. Forms will be provided for your convenience. Additionally, we are seeking volunteers to meet with us and help brainstorm these issues. If you are interested, please let your supervisor know, so that we can schedule several people into our upcoming meetings. Please do this by Tuesday, October 25.
The next day, October 19, Torbitt informed the employees that the purpose of the suggestion boxes was to gather ideas for "productivity and quality of life improvements" and stated that the employees should feel free to put their ideas into writing. Torbitt then installed three suggestion boxes, with suggestion forms, near the employee time clocks throughout the facility. The suggestion forms next to the boxes asked employees to identify problems related to safety, production, efficiency, cost reduction, and quality of life; to suggest possible solutions; and to estimate the impact of any related improvements.
Employees quickly started submitting suggestions on a wide variety of topics, including improving health, sanitation, and safety conditions; providing a better cross-training program and a better health insurance plan; instituting a better disciplinary procedure; reducing absenteeism; reducing the number of overtime hours employees were required to work; assigning employees to shifts depending on production demand; improving policies related to hiring and promoting temporary employees; rotating employee lunch hours; implementing paid sick days; and providing outdoor shelter for smokers.
The improvement team rated each suggestion in terms of urgency, the action called for, and the potential difficulty of implementing the suggestion. Torbitt then took action with respect to a number of the employee suggestions. For example, in response to a complaint that the employees worked too many overtime hours, Torbitt implemented an additional shift. In response to another employee complaint that the dumpster area was crowded and hazardous because of the number of employees taking out trash, Torbitt contracted for the installation of a hydraulic lift. Torbitt also repaired broken toilets, towel dispensers, and a water fountain; established a fire safety program; agreed to plow and remove snow and ice from the parking lots; instituted a cross-training program; and constructed two outdoor shelters to accommodate smokers.
Torbitt also implemented changes in its parking policy. Torbitt's facility has two parking lots. Lot A is closer to the entrance of the facility and has approximately 70 parking spaces. Lot B has approximately 150 spaces. Under the old policy, Torbitt prohibited production and maintenance employees from parking their vehicles in Lot A during office hours because that lot was reserved for managers, supervisors, and office staff. Torbitt only permitted production and maintenance employees to park in Lot A after office hours and on weekends. The production and maintenance employees disliked Torbitt's parking policy and they complained among themselves about the longer walk from Lot B, especially during bad weather. On October 13, 1994, Torbitt posted a memorandum announcing that both parking lots were now open to all employees on a first come basis.
On November 10 th, the union filed an unfair labor practice charge, alleging that Torbitt had made threats of retaliation against union activity to employees, including Timothy Hornback. This charge alleged:
[Torbitt] has held meetings and given speeches, made threats to employees, inferring the Union would cause the Company to go out of business, or employees would receive less as far as wages, benefits, working conditions, etc., and by other acts and conduct has interfered with, restrained and coerced Tim Hornback, Glenn Brown, and Robert Lay in the exercise of their rights guaranteed in Section 7 of the Act.
The union filed another unfair labor practice charge, in which Hornback was also named, on November 14, 1994. That charge alleged among other things, that Torbitt had Although these charges were ultimately withdrawn, they form the basis of the charge that Torbitt threatened Hornback with reprisals for his union activity.
On November 23, after lunch, Hornback and employee George Reese were at their posts on opposite sides of a case-packer conveyor belt. The production manager, Nelson Mayse, approached Hornback and told him, "We have the Gains Sharing Committee, the Improvements Team Committee, we have the Placing Team Committee, and we have the Hatchet Committee." Hornback asked him what the "hatchet committee" was. In response, Mayse raised his hand and said, Mayse then walked away. Torbitt maintains that this exchange never occurred, and in fact never could have occurred, since Mayse did not learn of the charges involving...
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