Allen-Stone Boxes, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1228 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen-Stone Boxes, Inc. and United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO, CLC. Case 26-CA-7624
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 30, 1980, Administrative Law Judge
Henry L. Jalette issued the attached Decision in
this proceeding. Thereafter, 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Allen-Stone
Boxes, Inc., Halls, Tennessee, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
I We find merit in the General Counsel's exception to the Administra-
tive Law Judge's inadvertent error in the last paragraph of sec. III. A. 3.
of his Decision wherein he used the word "unwarranted" when he meant
to say "warranted." We hereby correct the error.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This
proceeding involves allegations that the above-named
Respondent engaged in conduct violative of Section
8(a)(1) of the Act which was so serious and substantial in
character and effect to render the holding of a fair elec-
tion impossible and to warrant a finding that Respondent
violated Section 8(a)(l) and (5) of the Act and the issu-
ance of a bargaining order. The proceeding is based on a
charged filed by the above-named Union on February 5,
1979, pursuant to which a complaint issued on March 23,
1979. On November 26, 27, and 28, 1979, a hearing was
held in Dyersburg, Tennessee, before Administrative
Law Judge C. Dale Stout. Following the conclusion of
the hearing, Administrative Law Judge Stout died before
rendering a decision in the case and by order dated May
21, 1980, in conformity with Section 102.36 of the
Board's Rules and Regulations, Series 8, as amended,
252 NLRB No. 171
Acting Chief Administrative Law Judge Arthur Leff
designated me to prepare a Decision and recommended
Order in this case or to take such other appropriate
action deemed required to perform the function and re-
sponsibility of preparing and issuing a Decision.
Upon the entire record, and after consideration of the
briefs of the parties, I hereby make the following:
FINDINGS OF FACT
I. FACTUAL SETTING
Respondent is a corporation doing business in the State
of Tennessee with an office and place of business in
Halls, Tennessee, where it is engaged in the manufacture
of corrugated boxes and packaging. The complaint al-
leges, Respondent admits, and I find that Respondent
meets the Board's $50,000 direct inflow and outflow
standards for the assertion of jurisdiction.
On August 21, 1978, the Union filed a petition for an
election in Case 26-RC-5836, for a unit of production
and maintenance employees, including truckdrivers. On
the same date, Respondent received a letter from the
Union requesting recognition. On September 11, 1978, a
hearing on the petition was held. On September 20, 1978,
the Regional Director issued a Decision and Direction of
Election and on October 19, 1978, an election was held
in which 20 ballots were cast in favor of union represen-
tation and 23 against. Thereafter, timely objections to
conduct affecting the results of the election were filed
and on November 16, 1978, a hearing on objections was
held. On January 8, 1979, the Hearing Officer issued a
report on objections wherein he recommended dismissal
of all but two objections. Based on his finding of merit to
two objections, the Hearing Officer recommended the
holding of a second election. Respondent excepted to
such recommendations, but on February 8, 1979, the ex-
ceptions were overruled and the Regional Director
adopted the Hearing Officer's report in its entirety. Re-
spondent filed a request for review which the Board
denied.
The complaint alleges 12 instances of interference, re-
straint, and coercion. As to seven of them (par. 7(a), (b),
and (c) and 8(a), (c), (g), and (h)), Respondent moved for
summary judgment before Administrative Law Judge
Stout on the authority of Section 102.67 of the Board's
Rules and Regulations, Series 8, as amended, or on the
theory of collateral estoppel. Respondent contended that
each of those allegations had been fully litigated at the
hearing on objections and had been found to be without
merit. As there was no claim of newly discovered evi-
dence, Respondent argued that relitigation was barred.
Administrative Law Judge Stout denied the motion and
heard testimony on all the allegations of the complaint.
Respondent has renewed its argument in its brief. In my
judgment, Board precedent, if not expressly so, is implic-
itly contrary to Respondent's position and its argument is
rejected. See Viking of Minneapolis, 171 NLRB 1155
(1969); McEwen Manufacturing Company and Washington
Industries, Inc., 172 NLRB 990 (1968).
1228
ALLEN-STONE BOXES, INC.
II. CREDIBII.ITY
In many significant respects, the issues presented
herein are issues of credibility and the principal protago-
nists are, on behalf of Respondent, President R. C. Allen,
and, on behalf of the General Counsel, present and
former employees of Respondent. As noted earlier, I did
not preside at the hearing in this case and have not had
an opportunity to observe the witnesses. Nevertheless, I
am persuaded on the basis of the printed record as a
whole that a reasoned judgment may be made as to the
general credibility of the witnesses and, in particular, the
credibility of R. C. Allen. In my judgment, the falsity of
Allen's testimony leaps out at the reader from the print-
ed page. To put it another way, Allen's testimony is for
the most part inherently incredible.
My conclusion that Allen's testimony is undeserving of
credence was derived from a review of his testimony on
three subjects: Statements at a meeting of employees rel-
ative to the sale of the business, merging operations, or
jobbing out work; a change in the no-smoking rule; and
statements at individual employee meetings. Detailed
analysis of these three subjects will appear below, but it
should be noted here that on all three subjects, Allen
proffered almost nothing besides his own unsupported
word in explanation of conduct which from its timing or
nature one would be justified in inferring was intended
to effect the results of the election.
ll. THE A.LEGED INTERFERENCE, RESTRAINT, AND
COERCION
A. By R. C. Allen
1. The September 12, 1978, employee meetings
On September 11, 1978, a hearing was held on the rep-
resentation petition in Case 26-RC-5836. The following
day, the work force was divided into three groups and
Allen spoke to each group separately. He told each
group that he was calling the meeting to let the employ-
ees know Wvhat had taken place in Memphis the day
before so there would be no misunderstanding or rumors.
He told the employees that the Company had asked that
there be no election at that time or in the near future be-
cause there was a distinct possibility that the work force
would be reduced or drastically changed in some way.
He gave three reasons why this might happen: That the
Company had been, and was still considering, selling out
to another party; that the Company was considering
merging its operations with the operations at another
plant it owned in Guthrie, Kentucky; and that the Com-
pany had been considering, and was still considering,
jobbing out its work. Allen did not state that any of
these eventualities depended on the outcome of the elec-
tion.
Respondent contends that Allen's conduct was not
violative of the Act, because all it consisted of was a fac-
I nterestingly enough, the Hearing Officer in his report on objections
also found parts of Allen's testimony inherently incredible Respondent
describes such a conclusion as astounding because it related to uncontra-
dicted and unimpeached testimony by Allen That is no bar in its rejec-
tion. My conclusion is based on my review of the record and I have not
relied on the Hearing Officer's conclusion
tual report of what had been said at the representation
hearing and that what had been said at the representation
hearing was itself a true picture of Respondent's econom-
ic condition and prospects.
In my judgment, Allen's report to employees about
what he had testified to at the representation hearing was
calculated and had the tendency to coerce employees in
the exercise of the right to make a free choice in the
matter of union representation and was violative of Sec-
tion 8(a)(l) of the Act.
To the best of my knowledge, the factual situation
here presented is unique. The statements of Allen did not
involve "predictions" in the usual sense, because they did
not on their face, purport to be at all related to the em-
ployees' attempts at unionization. Nevertheless, an em-
ployee would have to be dense not to observe the con-
text in which the possibilities of plant sale, merger, or
jobbing out of work, had arisen; namely, in the context
of their attempt to obtain union representation through
an election. None of these possibilities so vital to their
job security had been mentioned to them before. In the
circumstances, the employees could reasonably infer that
these possibilities had arisen only because they were
seeking union representation, and they could reasonably
infer they would become realities if they selected the
Union to represent them. As the Supreme Court noted in
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 617 (1969),
"And any balancing of those rights must take into ac-
count the economic dependence of the employees on
their employers, and the necessary tendency of the
former. because of that relationship, to pick up intended
implications of the latter that might be more readily dis-
missed by a more disinterested ear."
Respondent contends that it may not be held to have
violated the Act for truthfully informing employees of
the facts. But this is not what happened here. The
"facts" reported by Allen were, I find they were which
he had created for the representation hearing. I find they
were fictions because they were wholly unsupported by
any evidence other than Allen's testimony, which, as
noted above, is not worthy of credence. For example,
one possibility which Allen mentioned at the representa-
tion hearing and to the employees was the possibility of
jobbing the work. However, he did not advert to any
plans for doing so, nor to any discussions with coman-
agers or manufacturers. He offered only his word that
this possibility existed. Yet, according to his own testi-
mony, except on a limited basis, jobbing out work is not
practicable if customers are to be serviced promptly.
As to the possible sale of the business, the only evi-
dence in support of that possibility, apart from Allen's
word, was a solicitation by a broker on August 19, 1978.
As undated handwritten note by Allen to his associate,
Albert Stone, identifies a prospective purchaser, but the
tenor of the notes indicates, if anything, that a sale of the
business was at best a remote possibility.
On the possibility of merger of operations, Allen's tes-
timony is supported by a communication dated August
30, 1978, from an associate who was responsible for op-
erating a facility in Guthrie, Kentucky, which is named
Bardcor and owned by Respondent. But all this commu-
1229
DECISIONS OF NATIONAL ILABOR RELATIONS BOARD
nication shows is that this associate, William Freeman,
was suggesting a merger of certain operations. Nothing
in the communication indicates any imminent possibility
of the merger taking place. As a matter of fact, as Allen
testified at the representation hearing, Allen-Stone and
Bardcor had been discussing consolidation ever since
Allen-Stone had bought Bardcor 3 years earlier and
nothing had ever come of the discussions. Why, then,
raise this specter of loss of jobs at the representation
hearing and repeat it to the employees?
According to Allen, these possibilities were occasioned
by a bad yearend statement which showed that in the
last fiscal year which had ended on July 31, 1978, Re-
spondent had made $7,700 or $7,400 before taxes. How-
ever, the yearend results should have been no surprise to
Respondent, because Allen testified that as far back as
December 1977, he had mentioned the Company's losses
to the employees. In other words, there was really noth-
ing new in the yearend report. Yet, when one analyzes
Allen's testimony, no steps of any significance were ever
taken by Respondent either before or after the represen-
tation hearing. In short, nothing changed. 2 All that re-
mained was Respondent's speculations holding out before
the employees the prospect of loss of jobs. In the cir-
cumstances, the conclusion is warranted that sale of the
business, merger of operations, or jobbing out of work
were ideas which were raised by Respondent and report-
ed to employees as a means to coerce them from exercis-
ing a free choice of representation and that Respondent
thereby violated Section 8(a)(1) of the Act.
2. The ringleader incident
During the preelection period, Allen held a number of
meetings with employees. At one of them, he compared
wages and benefits at plants where the Union had con-
tracts. In the course of the meeting, employee John Con-
nell asked him about the Gaylord contract. Allen was
about to send a supervisor out to see if the Company had
a copy of that contract when Connell pulled one out of
his pocket and handed it to Allen. Connell testified that
Allen got a little upset and pointed his finger in his face
and told him he was one of the ringleaders of all this.
Allen described a meeting similar to that wherein Con-
nell handed him a copy of the contract. According to
him, the scene was a humorous one with him chuckling
at the quickness with which Connell produced the con-
tract. Allen denied shaking his finger at Connell or call-
ing him a "ringleader." He testified that somewhere
during the meeting he remarked, "John, now you're a
leader" and that Connell said, "No, that he had not
caused all of this."
On the printed record alone, Allen's testimony has a
false ring and I do not credit it. Nevertheless, I am not
persuaded that the incident as described by Connell war-
rants a finding of interference, restraint, or coercion. The
remark contained no threat, express or implied, and arose
out of the fact that Connell had thrust himself into the
discussion by his reference to, and production of, the
Gaylord contract. Connell had the right to do this free
2 The Regional Director rejected the employer's position in the repre-
sentation case and directed an election.
from reprisal, or the threat thereof, because of it.'l see
no threat here, nor, in the circumstances of the case, do I
view Allen's conduct as tending to coerce employees.
3. The individual employee meetings
It is undisputed that during the preelection period
Allen conducted a number of individual meetings with
employees. The complaint alleges that in the course of
these meetings Allen interrogated employees, solicited
grievances, and impliedly promised to rectify them.
According to Jerry Nelson, he was called to the
sample room sometime in September where he had a
conversation with Allen. According to Nelson, Allen,
who had a pad on which to write notes, asked him if he
thought the Union would be good for the factory and
Nelson told him in a way yes. Allen said that things
would get better, he said, "that moneywise, everything
was going to get a lot better." In the course of the meet-
ing, Allen said if the Union came in it would cause a
layoff or a strike and he asked Nelson who would pay
his bills if the Union came in and went out on strike.
Employee Vassar Miller testified to a similar meeting
with Allen on direct examination dated at 2 to 3 weeks
before the election.3 He testified Allen asked him what
his gripes were, what kind of problems there were.
Miller mentioned wages and insurance and referred to
problems with plant machinery. In his testimony, Miller
did not indicate that Allen made any response to Miller's
complaints, but in his prehearing affidavit he stated that
Allen said he would see what he could do about part of
them. At the hearing on objections, he testified that
Allen said he would see what he could do about the
problem. Allen said that "conditions would be getting
better."
Miller also testified on direct examination that Allen
asked him if he thought a union would be good for the
plant and he answered he thought so. On cross-examina-
tion, he testified, "I don't believe he said union, but I
think he asked if a third party or something like that
would help the Company."
Employee John Connell testified to a similar meeting
with Allen which he dated 2 to 3 weeks before the elec-
tion wherein Allen asked him "what was our gripes."
Connell told him holidays and wages. He testified that
Allen did not make any promises, but he said things
were going to get better.
Former employee William Smith testified to a similar
meeting with Allen 4 to 6 weeks before the election
wherein Allen asked him if he had any gripes or com-
plaints. Smith told him, "Yes, more money and holi-
days." Allen said he could not promise him anything but
things would be better. He said he did not believe the
employees needed a third party.
On the basis of the foregoing, the General Counsel
contends that a finding of unlawful interrogation and of
unlawful solicitiation of grievances is warranted.
Respondent contends that there is no basis for a find-
ing of any violation because of any conduct of Allen
:' On cross-examination, he dated the meeting at 4 to 6 weeks before
the election.
1230
AI..EN-ST()NE O)XES, INC
with regard to individual meetings with employees.
Allen admittedly held meetings with 19 employees, in-
cluding the employees referred to above. Assertedly, he
did so because of a steady decline in productivity and in
an effort to find out how to improve productivity
through employee input, and also because of a desire on
the part of some employees to meet with him. These em-
ployees were afraid to meet with him because of peer
pressure and Allen believed that through these individual
meetings he could give these employees the opportunity
they desired free of any peer pressure. Allen testified his
questions to employees dealt with productivity and that
he did not inquire about their grievances, nor into their
union sentiments.
As stated earlier, I find Allen's testimony to be in-
credible. Here is an employer who assertedly had had a
productivity problem for months. So much so that, as
noted in the preceding section, he assertedly had been
considering selling, merging operations, or jobbing out
the work. Admittedly, prior to the filing of the represen-
tation petition, Allen had never mentioned these possi-
bilities to the employees. With the prospect of an upcom-
ing election, however, not only did he suddenly see fit to
mention these possibilities, all of which posed a threat to
their jobs but, also, he would have the trier of the facts
believe that thereafter he met with employees to get
input on productivity and to listen to employees who
had requested to meet with him under circumstances that
would relieve them of peer pressure. The testimony is
patently not worthy of credence.
It is uncommon for an employer to conduct private in-
terviews of employees to find out about production
problems. It is particularly uncommon when he has
never done so before and it is undisputed Allen had
never done this before. It is yet again particularly un-
common when, as noted below, the employer assertedly
has a production problem of which he is fully aware;
namely, the violation of a no-smoking rule, and nothing
has been done to correct the problem.
As to the assertion that the meetings were a means of
disguising the fact that certain employees desired to meet
but feared peer pressure, it is noteworthy that no em-
ployees in this category were ever identified. It is also
noteworthy that there were some employees who openly
opposed the Union and there is no showing that they
were harassed or pressured by pro-union employees.
Moreover, Allen's own testimony supports the finding
that the individual meetings were held because of the
pending election. Thus, Allen testified that at the meet-
ings he had in hand a card which the Company had ear-
lier mailed to employees with questions they were urged
to ask of the union representative,4 and Allen testified he
asked employees if they had asked those questions of the
union representative. The very fact that he had the card
with him demonstrates the purpose of his meetings. On
the matter of grievances, Allen admitted employees
talked about such matters, but he told them that was not
his reason for being there. Nevertheless, he did not stop
them from airing their grievances and even took notes.
I One question was "If a union goes into he plant and a strike is called
will the Union pay your grocery hills"
For the foregoing reasons, I find that Allen's testimo-
ny about the reason for his individual meetings with em-
ployees is false. Because he chose to conceal his reason
for the individual meetings, the inference is warranted
that the true reason was unlawful; namely, to find out
what employees grievances were as testified to by the
employees above and to convey the impression working
conditions would be improved. Respondent contends
that the testimony of the employees to such effect is in-
consistent or contradictory or vague and lacking in spe-
cifics. That was certainly true of employee Lewis Braden
and I have, therefore, not even adverted to his testimo-
ny. To the extent there are flaws in the testimony of
Nelson, Miller, Connell, and Smith, however, they are
not sufficient to warrant a rejection of their testimony
when weighed against Allen's total lack of credibility.
The issue is, does their testimony support a finding of
unlawful interrogation and unlawful solicitation of griev-
ances. I find it does.
Nelson's testimony that Allen asked him if he thought
the Union would be good for the factory and Miller's
testimony that Allen asked him either if he thought a
union or a third party would be good for the Company
support a finding of unlawful interrogation. The ques-
tions clearly required the employees to reveal their senti-
ments, had no legitimate purpose, and occurred in the
context of other unfair labor practices, including as
found below, a contemporaneous unlawful solicitation of
grievances. In the circumstances, such questioning tends
to be coercive and is violative of Section 8(a)(1) of the
Act.
As to the solicitation of grievances, I find that this was
the main purpose of the meetings. Miller's, Connell's, and
Smith's testimony is mutually corroborative that Allen
asked them what their gripes were and all testified that
Allen said things would get better. Such remarks con-
tained an impled promise of improved working condi-
tions.5 In all the circumstances, including the timing of
the interviews and the fact that Respondent had not in
the past solicited employee complaints, a finding is un-
warranted that Respondent's conduct constituted an un-
lawful solicitation of grievances.
4. The meeting of February 15, 1980
Employee Russell Sanders testified, without contradic-
tion, that at a meeting of the employees in February
1980, Allen told the employees that he had received an-
other love letter from the National Labor Relations
Board. He told them the campaign had cost him a whole
lot and was eating up the profits and there would be no
profits for the profit-sharing plan. He said the lawyer
had already cost him $20,000.
General Counsel contends these remarks constituted
implied threats of loss of benefits. I find the contention
lacking in merit. Rospatch Corp., 193 NLRB 772 (1971).
Peavey Componv. 249 NLRB 853 (l980)
1 31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. By Talmadge Nelson
1. The union sign
Talmadge Nelson is a production supervisor and an
admitted supervisor within the meaning of Section 2(11)
of the Act. On August 23, employee Jerry Nelson re-
turned to his work station from break wearing a sign on
his back which said, "Vote for the Union." He testified
that Talmadge Nelson came up to him and told him he
had better take that piece of paper off or else (he did not
say what else). Jerry Nelson took it off. The complaint
alleges that Talmadge Nelson's conduct constituted an
unlawful threat of unspecified reprisals because of an em-
ployee's union activities.
Talmadge Nelson admitted that there was an incident
wherein he told Jerry Nelson to remove a sign that was
on his back. He testified that several employees had con-
gregated about Jerry Nelson and he asked him to take
the sign off, that if he wanted to wear it, he could do so
at break.
It is undisputed that on some date in August and Sep-
tember, as a result of words spoken to Jerry Nelson by
Talmadge Nelson, Jerry Nelson removed a prounion sign
he had been wearing on his back. Whether or not Tal-
madge Nelson told Jerry Nelson to remove the sign or
else, as Jerry Nelson testified, or whether or not Tal-
madge Nelson merely asked Jerry Nelson to remove it, is
in conflict. In my judgment, whether Talmadge Nelson
asked or told Jerry Nelson to remove the sign, and
whether he added "or else" is immaterial. A request by a
supervisor that an employee remove union insignia
cannot be distinguished from a demand that he do so and
an employee can reasonably infer that his failure to
comply will have adverse consequences on him.
The wearing of union insignia is a Section 7 activity
and an employer who interferes with an employee's
wearing of union insignia violates Section 8(a)(1) of the
Act unless the employer can show that the interference
was necessary to avoid disruption of production or the
like. Respondent has not met that burden here. All that it
has shown is that employees had congregated about
Jerry Nelson at the moment he first appeared with the
sign. There is no showing that Jerry Nelson was away
from his work area and acting in a way to cause a distur-
bance. To the contrary, the clear import of Talmadge
Nelson's testimony is that the other employees were ne-
glecting their work. Yet, Talmadge Nelson did not speak
to those employees, nor did he instruct them to go about
their duties; rather, he chose to cause Jerry Nelson to
remove his insignia. An employee may not be deprived
of the right to wear union insignia on such a showing
and Talmadge Nelson's conduct was violative of Section
8(a)(1) of the Act. 6
6 Respondent's principal argument on this issue is that Jerry Nelson
was not a credible witness The analysis above is based on such an as-
sumption. Were I to decide credibility, however, I would credit Jerry
Nelson over Talmadge Nelson. The variances in Jerry Nelson's testimony
adverted to by Respondent related principally to noncritical matters such
as the date of the incident and the location They can be attributed as
well to faulty recollection or confusion of the witness from lengthy ques-
tioning as to a lack of credibility On the other hand, Talmadge Nelson's
testimony that he did not know what the sign said, all he did was ask
2. Interrogation
The complaint alleges that on or about October 19,
1978, Talmadge Nelson interrogated an employee regard-
ing his union desires. The allegation is based on testimo-
ny of Jerry Nelson that in either September or on Octo-
ber 19, 1978, the day of the election, Talmadge Nelson
asked him if he was going to vote for the Union. Jerry
Nelson told him he did not know. Talmadge Nelson
denied engaging in such interrogation. There are no cir-
cumstances to aid me in resolution of credibility on this
issue. Accordingly, I shall recommend dismissal of the
allegation for failure of proof.
3. Stricter enforcement of work rules
The complaint alleges that on or about September and
the middle of October 1971, Talmadge Nelson enforced
work rules more strictly against prounion employees by
telling them they could not leave their machines and talk
to other employees. The allegation is based on the testi-
mony of employees Vassar Miller and John Connell.
According to Miller, about I week before the election,
he was away from his machine, which was temporarily
down, and was talking to a man at another machine. Tal-
madge Nelson came over and told him to return to his
machine and stay there, "that everybody knew about the
situation and all," which Miller presumed was a refer-
ence to the union situation. Miller testified he had talked
to employees before and had not been told to stop.
According to Connell about 3 or 4 weeks before the
election, on his return to his machine from a visit to the
restroom, Talmadge Nelson came over and told him he
did not want to catch him away from his machine any-
more and that everybody had got the word. Connell had
never been spoken to about this in the past. He testified
he knew no rule prohibiting employees from leaving
their machine to go to the restroom, but he believed the
rule prohibited going around chatting with people.
Talmadge Nelson admitted telling Connell to stay at
his machine. He testified that he did so after Connell's
third visit to the restroom when it seemed that Connell
was following employees into the restroom. He testified
he also spoke to four other employees. He did not testify
as to what he told these employees or why he spoke to
them. Implicit in his testimony is that he did so because
there was more stopping and talking than usual and pro-
duction was down.
I shall recommend dismissal of the allegation of a
stricter enforcement of rules. In Connell's case, accord-
ing to Nelson's uncontradicted testimony the restriction
appears to have been based on his abuse of restroom
visits. The remaining instance of a restriction on Miller
can as reasonably be explained by a need to maintain
production as by a purpose to restrict union activity and
must be dismissed for lack of sufficient evidence.
C. The Change in Smoking Rules
Prior to the organizational campaign, Respondent had
a rule which prohibited smoking during working time.
Jerry Nelson to remove the sign, and that his only concern was produc-
tivity, defies credulity.
1232
ALLEN-STONE BOXES, INC.
According to Allen, I or 2 weeks before the election
small smoking buckets were placed beside the machines
of the employees and they were told they could smoke
during working time.
The General Counsel contends that this change in the
smoking rule constitutes the grant of a special privilege
whose purpose was to interfere with the employees' ex-
ercise of a free choice in the election. N.L.R.B. v. Ex-
change Parts Co., 375 U.S. 405 (1964).
Respondent contends that the no-smoking rule had
been ignored by the employees, by going to the restroom
to smoke, to such an extent that productivity was affect-
ed and the supervisors were not enforcing the rule. Ac-
cordingly, according to Allen, in early 1978 it requested
permission of its insuror to permit employees to smoke at
work. Permission was not granted until just before the
smoking buckets were placed at the machines. In the cir-
cumstances, Respondent contends a finding of a violation
is not warranted.
I reject Respondent's argument and find that the
smoking rule was changed with a purpose to interfere
with the employees' exercise of a free choice. In my
judgment, it defies credulity to believe that the employ-
ees' disregard of the no-smoking rule was so blatant and
extensive that it created a productivity problem and that
the only solution to the problem was to permit them to
smoke. But Allen would have the trier of fact believe not
only that, but also that it was mere coincidence that ap-
proval from the insurer was obtained so shortly before
the election. I can believe none of his testimony.
Allen offered no records to support this claim that the
existing no-smoking rule had created a loss of productiv-
ity. Moreover, it seems reasonable to expect that Respon-
dent would have taken some steps to correct the prob-
lem pending approval of its insurer if the problem was so
serious. On the very matter of approval of its insurer,
there was nothing in Respondent's insurance policy
which required it to obtain such approval. Apart from
that, none of the alleged discussions Allen had with the
insurer, including the insurer's approval of the change,
was ever reduced to writing. (If the approval was
deemed necessary to avoid a dispute over a claim in the
event of a loss due to fire, one would believe the approv-
al would be obtained in writing.) Accordingly, there is
no way of verifying Allen's testimonial assertions about
his discussions with the insuror. Even on the matter of
the timing of the insurer's approval the best that can be
said on the basis of the insurance agent's testimony was
that it was given in the fall of 1978.
In my judgment, all the circumstances, compel a find-
ing that the change in the smoking rule was for the pur-
pose of interfering with the employees in their exercise
of a free choice in the election and was conduct violative
of Section 8(a)(1) of the Act.
IV. THE REFUSAL TO BARGAIN
The complaint alleges that since on or about August
18, 1978, the Union had been designated by a majority of
the employees in an appropriate unit as their representa-
tive for the purpose of collective bargaining, that on or
about August 18, the Union requested Respondent to
bargain with it and that Respondent refused. Based on
these allegations and the unfair labor practices of Re-
spondent as described earlier, the General Counsel as-
serts that a finding is warranted that Respondent violated
Section 8(a)(5) of the Act and that a bargaining order is
appropriate pursuant to the principles of V.L.R.B. v.
Gissel Packing Co., supra
The demand for recognition and refusal were estab-
lished by the Union's letter of August 18 to which Re-
spondent did not reply. As to the appropriate unit, the
parties stipulated that the unit described in the complaint
was appropriate. As to the Union's majority status, the
parties stipulated that for each week in the period from
August 18 to October 21, 1978, a majority of the em-
ployees in the appropriate unit had designated the Union
as their exclusive bargaining representative through valid
authorization cards.
The principles governing the issuance of a bargaining
order in "card" cases are, by this date, of longstanding.
They were established in IV.L.R.B. v. Gissel Packing Co..
supra, decided in 1969, wherein the Court held that a
bargaining order is warranted if an employer's unfair
labor practices are deemed sufficiently serious or perva-
sive that the possibility of erasing the effects of such
practices and insuring a fair election by the use of tradi-
tional remedies, though present, is slight and employee
sentiment once expressed through cards would, on bal-
ance, be better protected by a bargaining order. Unfortu-
nately, as Respondent notes, there is no clear-cut, me-
chanical method which can be utilized to determine
whether a bargaining order is required. Each case must
be decided on its own facts and circumstances.
For this reason, case precedent is of little value in for-
mulating a decision. While threats of plant closure are re-
garded as serious violations of the Act, they do not man-
date a bargaining order in every case. In Hedstrom Com-
pany, 235 NLRB 1193 (1978), cited by the General
Counsel, the possibility of plant closure was an issue
which loomed large in the election campaign. In this
case, the threat of loss of jobs was made early in the
campaign and not repeated thereafter. Moreover, the
threat was implied rather than express, and its impact
may well have been dissipated when the Regional Direc-
tor discounted the possibility of sale, merging of oper-
ations, or jobbing of work, and directed an election.
As to the solicitation of grievances, while I have found
that the solicitation was accompanied by implied prom-
ises, the promises were vague, i.e., "things would get
better" and there is no evidence that Respondent did, in
fact, grant the employees any benefits.7 Respondent did
change its no-smoking rule, but I view such a "benefit"
as too inconsequential to support a bargaining order.
As to the other unfair labor practices herein found, the
interrogation and the order to Nelson that he remove a
union sign, I can conceive of no reason why the effects
thereof cannot be remedied by traditional cease-and-
desist provisions and notice posting.
For the foregoing reasons, I shall dismiss the 8(a)(5) al-
legation and I reject the request for a bargaining order.
I Respondent may ha.e instituted a profit-sharing plan after the elec-
tion, but, if so, there is no allegation its action in hat regard was unlaw-
ful
1233
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
V. [H E IFiCT O THI UNI AIR ABOR PRAC ICIS
UPON COMMI.RCI
The activities of Respondent set forth in section 1,
above, occurring in connection with the operations de-
scribed herein, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
VI. THE REIMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Allen-Stone Boxes, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Rubber, Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO,CLC, is a labor organization
within the meaning of the Act.
3. By threatening to sell its business, merge operations,
or jobbing out its work in order to coerce employees
from selecting the above-named Union as their bargain-
ing representative, by soliciting employees grievances in
a manner and under circumstances implying that employ-
ees did not need the Union to redress their grievances,
by interrogating employees about their union sentiments
in a manner and under circumstances tending to coerce
employees, by requiring employees to remove union in-
signia, and by changing its no-smoking rule, Respondent
has engaged in , and is engaging in, unfair labor practices
within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER8
The Respondent, Allen-Stone Boxes, Inc., its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Soliciting employee complaints and grievances and
impliedly promising to improve working conditions in
order to induce employees to withhold support from,
and to cease giving assistance to United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-
CIO,CLC, or any other labor organization.
(b) Interrogating employees about their union senti-
ments in a manner or under circumstances constituting
interference with, restraint, and coercion of employees in
the exercise of rights guaranteed by Section 7 of the Act.
R In the event no exceptions are filed as provided in Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the 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
(c) Changing its rules on smoking in order to induce
employees to withhold their support from, and to cease
giving assistance to, the above named-Union, or any
other labor organization.
(d) Threatening employees with the sale of the busi-
ness, merger of operations, or jobbing out of work in
order to coerce them from selecting the above-named
union, or any other labor organization, to represent them
for purposes of collective bargaining.
(e) Requiring employees to remove union insignia
while at work.
(f) In any like or related manner interfering with, re-
straining, or coercing, employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Halla, Tennessee, facility copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of
the complaint found not to have been supported by a
preponderance of the evidence be dismissed.
I In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL. NOT solicit your gripes and grievances
and impliedly promise to improve working condi-
tions in order to induce you to withhold support
from, or cease giving assistance to, United Rubber,
Cork, Linoleum and Plastic Workers of America,
AFL-CIO,CLC, or any other labor organization.
1234
ALI.L.N-STONE BOXES, INC
WE Wll t. NOt change smoking rules to induce
you to withhold support from, or cease giving assis-
tance to, the above-named Union, or any other
labor organization.
WE WILL NOT threaten to sell the business, merge
operations, or job out the work, in order to coerce
you from selecting the above-named Union, or any
other labor organization, to represent you for pur-
poses of collective bargaining.
WE WILl. NOT require employees to remove
union insignia while at work.
WE Wll I Not question employees to remove
union insignia while at work.
W' W /ll NOI question employees about their
union sentiments.
WIt Wll.l NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them under Sec-
tion 7 of the National Labor Relations Act, as
amended.
AiI 1N-SroNF. BOXItS, INC.
1235