Alton Box Board Co.

National Labor Relations Board - Board Decisions

Nov 12, 1968

173 N.L.R.B. 744 (N.L.R.B. 1968)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alton Box Board Company and International Broth-
erhood of Pulp, Sulphite and Paper Mill Workers,
AFL-CIO. Cases 26-CA-2700, 26-CA-2740,
and 26-RC-2788
November 12, 1968
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
BY MEMBERS BROWN,
JENKINS, AND ZAGORIA
On December 11, 1967, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that the allegations
pertaining thereto be dismissed. In addition, in an
Errata to his Decision, issued on December 18, 1967,
the Trial Examiner further recommended that certain
objections to conduct affecting the results of the
election filed by the Petitioner be sustained, and that
the election of April 14, 1967, be set aside. There-
after, the General Counsel and the Charging Party
filed exceptions to the Decision and briefs in support
thereof, the intervening employees filed an answering
brief to certain exceptions filed by the General
Counsel, and the Respondent filed certain cross-
exceptions to the Trial Examiner's Decision.
Upon consideration of certain issues raised by the
parties in ' connection with the Trial Examiner's
dismissal of certain allegations of the complaint, the
Board was of the opinion that it was desirable, in
giving thorough and final consideration to the issues
in this case, to have additional information which
could best be obtained by further hearing. According-
ly, on May 22, 1968, the Board issued an Order
Reopening Record and Remanding Proceeding to
Regional Director for Further Hearing in accordance
with the Board's Rules and Regulations. On August
15, 1968, the Charging Party and the Petitioner filed
a Motion to the Board requesting that the Board
approve the withdrawal of the unfair labor practice
charges in Cases 26-CA-2700 and 26-CA-2740,
and that the Board adopt the recommendation of the
Trial Examiner contained in his Errata to his Decision
noted above. In a telegram to the Board dated August
15, 1968, the General Counsel stated that he did not
oppose the Motion and moved that the withdrawal
request be approved. The Respondent, on August 16,
1968, in its reply to the Motion opposed the Charging
Party's Motion, in part, urging, inter alia, that the
Board proceed to rule upon and dismiss the out-
standing objections to the election. It did not oppose
the request to withdraw the charges.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-mem-
ber panel.
The Board has duly considered the matter. We
are of the opinion that it would effectuate the
policies of the Act to permit the Charging Party to
withdraw its charges. Accordingly,
ORDER
IT IS HEREBY ORDERED that the request of the
Charging Party to withdraw its charges be, and it
hereby is, granted.
IT IS FURTHER ORDERED that the consolidated
complaint herein issued by the Regional Director on
June 9, 1967, be, and it hereby is, dismissed.
As for the election held on April 14, 1967, we
agree with the Trial Examiner that certain objections
to conduct affecting the results of the election be
sustained, that the election be set aside, and that a
third election be directed.' We find that the record
supports the conclusions of the Trial Examiner that
between the date of the first election, January 13,
1967, and the date of the second election, April 14,
1967, the following conduct of the Respondent
interfered with the free choice of the employees:
Plant Superintendent McGill's numerous acts of inter-
rogation of employee Shephard in regard to the Union
and the election; Personnel Manager Drake's threats
and promises of benefits made to employee Williams;
and Plant Superintendent McGill's statements to
employees concerning wage increases being withheld
because of the pending election made both in his
letter to all employees on April 10, and repeated in a
speech to assembled employees on April 12.
As we have found that the election on April 14,
1967, was held under circumstances which made a
free election impossible, we shall set it aside and
1 Pursuant to a petition filed on November 4, 1966, an election was
held on January 13, 1967, in which the Petitioner failed to receive a
majority of the ballots cast . This election was set aside by a
Supplemental Decision , Order, and Direction of Second Election issued
by the Regional Director for Region 26 on February 23, 1967, and
pursuant thereto a second election was held on April 14, 1967. A
majority of the valid ballots counted plus challenged ballots were not
cast for the Petitioner , and on April 20, 1967, the Petitioner filed
timely objections to conduct affecting the results of the election. The
Regional Director found that certain objections raised material and
substantial issues which could best be resolved on the basis of record
testimony , and on May 26, 1967, ordered that Case 26-RC-2788 be
consolidated with Cases 26-CA-2700 and 26-CA-2740 for the
purpose of resolving the issues in question.
173 NLRB No. 105
ALTON BOX
direct a third election at a time deemed appropriate
by the Regional Director.
IT IS HEREBY FURTHER ORDERED that the election
held on April 14, 1967, among the employees in the
appropriate unit be, and it hereby is, set aside.
[Direction of third election2 omitted from publication]
2
An election eligibility list, containing the names and addresses of
all the eligible voters, must be filed by the Employer with the Regional
Director for Region 26 within 7 days after the date of issuance of the
Notice of Third Election by the Regional Director. The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances . Failure to comply with
this requirement shall be grounds for setting aside the election whenever
proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236
TRIAL EXAMINER'S DECISION AND REPORT
ON OBJECTIONS TO ELECTION
LLOYD BUCHANAN, Trial Examiner The consolidated com-
plaint herein (issued June 9, 1967; charges filed March 8 and
13, April 19 and 28, and May 26, 1967), as amended, alleges
that the Company has violated Section 8(a) (3) of the National
Labor Relations Act, as amended, 73 Stat. 519, by with-
holding ment wage increases because of employees' union
activities and in order to induce them to discontinue union
membership or not to join, and Section 8(a) (1) and (5) of the
Act by said acts, by interrogating its employees concerning
union activities and desires and how they would vote in a
Board election, warning that the plant would not grow and
threatening plant closure and denial of wage increases if the
Union were selected as bargaining representative, informing
employees that wage increases had been withheld because of,
their union activities and because an election petition had been
filed, promising wage increases if the Union were rejected,
promulgating and posting a rule against union organizing
activities during working hours and enforcing a rule restricting
employee smoking in the restrooms, both because its em-
ployees engaged in protected concerted activities, and refusing
to recognize or bargain with the Union and committing the
various described acts in order to undermine the Union,
dissipate its majority, and destroy the conditions for a fair
election The answer, as amended, admits' certain facts but
denies the allegations of unfair labor practice.
Consolidated for trial with the unfair labor practice case
was a representation case with respect to issues raised by
objections 1, 2, 3, and 6 filed by the Union to conduct
affecting the results of a second election conducted by the
Board on April 14, 1967, among the employees. (An election
held on January 13 and won by the Union had been set aside.)
It was early agreed that the proof in support of the objections
would be limited to that offered with respect to the unfair
labor practices, or some of the latter since it would not go
beyond the objections filed and referred for hearing.
The case was tried before me at Humboldt, Tennessee, on
i Since informal oral and written attempts to develop a better image
of operations have failed, may I say more formally but quietly When,
here or elsewhere , I cite an admission (or other fact ), the record
includes and supports my citation . If the fact be not found on review, I
suggest a further and proper search . (Cf 20th Century Glove Company,
Inc, 165 NLRB No 122 fn. 1 ) As much can be said with respect to
alleged facts found on review which are contrary to my own
declarations
BOARD CO. 745
July 17 through 21, 1967, inclusive, and August 22. Pursuant
to leave granted to all parties , comprehensive and well-pre-
pared briefs have been filed by the General Counsel and the
Company, the tune to do so having been extended.
Upon the entire record in the case and from my observation
of the witnesses , I make the following-
FINDINGS OF FACT (WITH REASONS THEREFOR)
AND CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND
THE LABOR ORGANIZATION INVOLVED
The facts concerning the Company's status as a Delaware
corporation, the nature and extent of its business, and its
engagement in commerce within the meaning of the Act are
admitted; I find and conclude accordingly. I also find and
conclude that, as admitted, the Union is a labor organization
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a) (5)
At the opening of the hearing I granted, with limitations
noted on the record, a motion to intervene made by 5
employees on behalf of 68 (reference was made to "ap-
proximately 72") who had by their signatures on July 12
indicated their opposition to the Union and their desire to
intervene The issue of majority was nevertheless to be
determined as of April 13, when the Union requested
recognition, and all parties proceeded on that basis. While the
petition to intervene indicated employee interest and standing
in July, consideration of signatures at that time for the
purpose of determining majority would ignore the effect of
earlier violations found. Nor could a finding of majority and
obligation to bargain in April be disturbed by a petition in
July.
The General Counsel's motion to the Board for special
permission to appeal from my ruling granting the motion to
intervene was denied without prejudice to the right to renew in
exceptions filed.
I find and conclude that, as found in the representation
proceeding and herein alleged, the following is an appropriate
unit within the meaning of Section 9(b) of the Act.
All production and maintenance employees, including
regular part-time employees, plant clerical employees and
truckdrivers employed at the Company's Humboldt, Ten-
nessee, plant, but excluding office clerical employees, pro-
fessional employees, guards and supervisors as defined in the
Act
As agreed on the record after detailed analysis, there were
136 employees in the unit on April 13; and the General
Counsel submitted 80 union authorization cards signed about
As a citizen , I am concerned with Board accuracy ; as a Board
employee, I am especially concerned . I would not disturb any radiant
feeling or sense of well-being ; nor even a charitable attitude toward any
respondent . But however disturbing the thought , facts are deter-
nunative, and search for the facts is important . If there be surprise that
this is pointed out, the explanation lies in repeated errors and refusals to
correct misstatements.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the end of March by employees in the unit, 69 being a
majority.
On February 14, during the course of the election cam-
paign, 68 employees signed and submitted to the Company a
petition opposing recognition of the Union. This was men-
tioned in an exhibit submitted by the General Counsel early in
his case. It is nowhere claimed that this petition was sponsored
by the Company or that it otherwise constituted interference,
restraint, or coercion. Counsels' comparison, at the trial, of the
February petition with the Union's cards indicates that 25
employees signed both whatever attack might be made on any
of the cards, no more than 55 can be counted toward the
necessary majority of 69.2 The submission to solicitors'
requests, first for one side and then for the other, indicates
that in those cases neither the cards nor the petition are
reliable to prove majority designation. The February petition
suggests a preference contrary to that claimed for the cards on
which we might otherwise rely for a finding of majority
representation A finding of majority cannot be based on such
ambivalence.
It thus became unnecessary to pass upon the validity of
each of the 80 cards submitted by the General Counsel, or to
receive testimony attacking them. Proof of majority is a sine
qua non to a finding of refusal to bargain.3 For reasons
detailed, recited, and summarized on the record, the allegation
of violation of Section 8(a) (5) was dismissed before em-
ployees were called by the Company or the Intervenors to
attack the validity of the cards and the alleged union majority.
Thus we did not reach such questions as whether the antiunion
petition supported a good-faith doubt of union majority,
whatever inference right be drawn from the Company's
interference.
I would here point out only a few of the facts lest they be
overlooked on review of all that was said on the record. With
references to authenticity and validity, when I referred to the
circumstances under which the petition and the cards were
signed and I called for any further proof in connection with
the February petition before I ruled on the issue, and when I
answered in the affirmative the question whether the ruling
would be "as to the effect that Intervenor's Exhibit 2 [the
petitionl might have on the union's majority status," the
General Counsel declared that he did not "have any argument
to make, except to say . . quite conclusionary, that General
Counsel's position is that the signing of Intervenor's Exhibit 2
does not nullify the union's majority status as of April 14,
1967." Indeed, the General Counsel had earlier declared, after
the issue of signers of both the petition and a card was raised
as well as the question of the circumstances under which the
petition was signed, that he would "not contest it" unless he
offered evidence that signatures on the petition were not
authentic
After the refusal-to-bargain allegations had been dismissed,
the General Counsel confirmed my understanding of the
record and of his position by stating that there was nothing in
his files to indicate that there had been unlawful interference
in connection with the February petition or that it had been
signed under circumstances which would invalidate the sig-
natures.
When, at the close of the hearing, the General Counsel
stated similarly that he was not prepared to call the 25
employees who had signed the antiunion petition in February
and union cards a month later, he was in addition reflecting
the fact that comparison of the two groups had not earlier
been made to learn who had signed both ways, as well as the
early estimate that the hearing would last 3 days. (This is not
to place a penalty on inadequate estimates. But with early
knowledge available for comparison and determination of the
number who had signed both for and against the Union, the
estimate covered but a small fraction of the necessary time had
such an inquiry been contemplated.)
The possibility that petition signatures had been obtained
by coercion is recognized. But with no intent shown to prove
that, and with the later declarations that the General Counsel
had no such evidence and that he was not prepared to call the
petition signers (these matters being clearly relevant and having
in addition been pointed out, as we have seen), there was no
reason for permitting the Company and the Intervenors to
proceed with attempts to show that the General Counsel's card
majority was invalid, thereby prolonging the hearing as these
hearings are otherwise necessarily prolonged.
B The Alleged Violation of Section 8(a) (1)
The issues had further and substantially been reduced at the
opening of the hearing (including at the point of dismissal
prima facie acceptance of the validity of the Union's cards
although questions were indicated with respect to some of
them, which need not now be indicated). With respect to the
remaing alleged violations, we can similarly confine ourselves
to the significant and material points.
1. Interrogation
Employee Wade testified that just outside the plant
entrance approximately a week before the election of January
13 Plant Superintendent McGill asked him what he thought
about the Union and, when he evaded with the remark that he
had never been in a union before, McGill continued with the
question whether he wanted a union, to which he did not
reply. According to McGill, the conversation was most casual,
one might wonder about his recollection of it even if Wade was
outside 'fz hour after the change of shifts McGill testified that
he asked Wade whether anything was wrong and, on receiving a
negative answer, asked "how everything was going and [Wade]
said okay." According to McGill, the latter question put to
employee Flowers directed the latter's attention to the
election and lus now declared confusion about voting. Aside
from the issue of credibility (Flowers testified that McGill
asked him what he knew about the Union), McGill's admitted
questions could reasonably and did indicate to these em-
2 See I Posner, Inc., 133 NLRB 1573, 1575, where the Board,
finding that a majority for District 65 had not been shown, declared
"Moreover , approximately 20 employees whose names appear on
District 65 cards also signed authorization cards on behalf of Local
21906 " The Board made no comparison of or reference to the
respective dates of signing . See also Bendix -Westinghouse Automotive
Air Brake Co., 161 NLRB No. 73.
3 H.W. Elson Bottling Company, 155 NLRB 714, Hermann
Equipment Manufacturing Company, Inc., 156 NLRB 716.
ALTON BOX BOARD CO
ployees a reference to the imminent elections. Particularly in
the context then existing, I find that such interrogation of
Wade and Flowers (this by McGill, and other interrogation as
we shall note) constitutes interference with protected con-
certed activities: I so find and conclude.
The General Counsel urges further that it is significant that
Wade, who had already signed a card, did not reply to McGill's
questions his avoidance or untruthful reply allegedly indi-
cating his fear and the interfering effect of the question-as if
the test of interference were actual effect rather than the
tendency to interfere. My finding is based on the latter and I
conclude that the Act was thus violated. It may be noted that
violation could be found in these questions had the employee
signed a card, but after the interrogation, and likewise had he
not signed at all, in which case the likely argument would be
that the questions had the actual effect of deterring him'
Without undertaking to point out all such instances, I
would note that another remark which Flowers attributed to
McGill (as a threat or promise?) was not alleged
Employee Shephard testified credibly that about Apnl 12
McGill asked him how things were going along with respect to
the Union, that he replied that he guessed he would have to go
union and, after McGill's further inquiry, said that he had his
reasons, that McGill then asked whether he could talk to
Shephard away from the plant, suggesting the latter's home,
and that they then made an appointment for the following
morning. McGill had also asked how the other men in the area
were going, and he declared that if any would like to ask any
questions, he would be glad to answer them.
Three of the others joined McGill and Shephard at the
latter's home the following morning. Near the end of their
discussion, McGill expressed the hope that they would change
their minds: they could vote as they pleased, but he hoped
they voted for the Company. He asked Shephard to come by
the next day and tell him how he was going to vote, and
repeated, as he had previously said to Shephard, that the
others would pretty much vote as he did.
As Shephard was going to the polling place the following
day, McGill called him over and asked which way he and the
other were "going " Shephard replied that they had not
changed they were going to vote for the Union.
McGill's version is that Shephard approached him and said
that he had some questions about the election and that, when
he suggested that they had better talk ouside the plant,
Shephard agreed, suggested his own home, and asked whether
others might come since they might have questions also. The
subjects allegedly discussed the following morning were quite
innocuous, the election, scheduled for the next day, ap-
parently wasn't even mentioned! This picture of mutual and
complete unconcern with the election was marred only when,
at McGill's car as he was leaving, Shephard allegedly volun-
teered that he had not made up his mind, but would tell
McGill before the election how he was going to vote. If, to
change the figure, this did not disturb the existing harmony, a
jarnng note was injected the next morning when Shephard
approached McGill and told him that he had decided to vote
for the Union.
McGill's suggestion that Shephard ask his alleged questions
away from the plant is itself suspect, as is McGill's account of
the group discussion under the circumstances existing and after
747
the careful arrangement. But further, McGill noticeably
flushed as he testified concerning his idea that, they meet
outside the plant and Shephard's suggestion that other
employees attend. I reject McGill's version, and credit
Shephard's, and I find and conclude that the former was guilty
of unlawful interrogation as alleged.
It will serve little purpose to consider other allegations and
instances of interrogation (even as in the breakroom, con-
cerning which Supervisor Pillow could only testify that he did
not recall it) We shall see below that circumstances, in
connection with an alleged withholding of an increase, raise at
least a question of credibility concerning statements made by
Pillow to employee Brock. We can add Supervisor Quinn's
questioning of Durbin before the January election, which was
violative and included by amendment after Quinn testified
concerning it
2. Threats and promises
An implied threat might be found in Quinn's statement to
Durbin about the first of the year that a mill in Humboldt
which had a union had moved out But this was neither alleged
nor litigated Durbin told us further that Quinn threatened
that, if the Union came in, the plant would not grow despite
the extra land available and the plans for expansion, and that
he replied that, if it was planned to expand, that would occur
"whether the union came in or not "
Although admitting the interrogation which we have just
noted, Quinn denied making the threat attributed to him. I
have no sufficient basis for a credibility finding that he did
threaten.
Brock testified that Pillow told him that the organizational
efforts had led to the denial of wage increases,4 and that if the
Union obtained more than a 7-cent increase, the plant would
shut its doors. It was pointed out, in denial and without
contradiction, that Brock was at the highest classification and
rating, and it is therefore doubtful that he would be spoken to
about the denial of an inapplicable increase. Under the
circumstances, I do not rely on Brock's testimony concerning
the withholding of an increase or the threat of closure, which
Pillow also denied
Employee Williams testified haltingly but credibly that on
the morning of April 13, the day before the election, Personnel
Manager Drake called on him and spoke with him in front of
his father's house, next door, and that Drake said in substance
that if the Union were voted out, the men would receive a raise
while, if it were voted in, they would not get anything. From
an earlier statement given by Williams, and not now denied by
Drake, it appears that the latter asked how he felt about the
Union (another instance of interrogation) and that Williams
replied that he was for it.
Drake denied the promise and threat attributed to him by
Williams He testified that he had known Williams for many
years and that he now merely questioned Williams about his
poor attendance record. Why he did not arrange to speak to
Williams at the plant, and why he chose to do it on the day
before the election, he did not explain. However poor
Williams' record, there were no marked latenesses immediately
before. Confronted with an earlier denial that he had ever
visited employees at home prior to May 17, a month after the
4 Such statements will be further considered within.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election (thus emphasizing the timing of this visit), Drake
admitted that he went to see Williams, but actually saw him
next door. The evident concern which Drake now exhibited
and his contradictions support the testimony that he promised
benefits and threatened in connection with union acitivites.
Employee Hunt testified that Drake called on him at home
at dusk on April 13 and said that the men would get a 10-cent
increase in June, but that they would not receive it if the
Union came in. Drake denied that he visited Hunt, and
evidence was received that he attended a meeting elsewhere at
7 o'clock that evening. The reference to dusk or "about dusky
dark," Hunt's testimony that Drake was there 5 to 10 minutes,
the agreement that the sun set at 6 28, and the further
agreement that it takes approximately 15 minutes to drive
from Hunt's home to the place of Drake's meeting do not
prove that it was impossible for Drake to have been at both
places as testified. On the other hand, these timing factors can
no more that allow for such presence; they cannot prove the
General Counsel's position. While the element of unreliability
noted above in Drake's testimony leads me to doubt that
Hunt's story was made of the whole cloth, the finding to be
made is not sufficiently clear and I make none in this
connection
3. Statements to employees concerning increases withheld
We recall Brock's testimony concerning Pillow's reference
to denial of wage increases. On a different level stand a letter
and a speech made by McGill. On April 10 McGill mailed to
all of the employees a letter in which he declared inter alga
I have heard quite a lot of conversation about this subject
[of merit or plant raises]. Some of you have said "the
Company gives the raises and can do so when they want."
True-the Company does give the raises and our Manage-
ment here at Humboldt has done this yearly, both general
raises and merit raises. The thing many of us don't realize,
or perhaps know, is that during the time the Company
received a petition for an election and a final election is
held the Company by law is not allowed to give wage
increases.
Similarly on April 12, in a speech to the employees on each of
the three shifts, McGill said-
Several of you have talked to me about the normal and
overdue merit increases, let me take this opportunity to
explain to everybody why the holdup. The law does not
allow any change in the condition of employment before or
in between or the second election. This union would file
unfair labor practices if we made merit increases. We are
positive they would do that, because they have filed unfair
labor practices because we moved employees from a job
lower to a higher paying job with increases in some cases.
No proof was offered to support the declarations of alleged
fact that there had been "a lot of conversation" and that
several employees had talked to McGill about merit increases.
Cf Standard Coil Products' where, with the reference to
withholding of increases, it was declared that increases would
be granted as soon as the representation matter was resolved
and regardless of the outcome; and where the fact of inquiries
made was supported by evidence of employee knowledge of an
increase at another of the Employer's plants. Still other facts
noted as significant in that case are not present here. While, as
we shall see, it cannot be said that increases would certainly
have been forthcoming, the vice here lies in the reference
during the union campaign to the absence thereof, if the
increases were not regular and periodic, the rating reviews
were, and would have been proper as in accordance with the
Company's normal practice.
Any fear that unfair labor practice charges might be filed,
stemming from a Board agent's question on May 17 whether
merit increases had been granted unlawfully could not justify
McGill's letter and speeches of a month earlier. As for earlier
fear of possible charges, the issue at the moment is not the
withholding of increases or merit ratings, but the references
thereto. I find and conclude that the letter and speeches were
"calculated to influence [the] employees' choice of a bar-
gaining representative"6 and were violative.
4. Rule against organizing activities
It was admitted that the following notice was posted on the
company bulletin board on November 11, 1966.
No person will be allowed to carry on union organizing
activities in the plant during working hours. Anybody who
does so and thereby interferes with his own work or the
work of others will be discharged.
The allegation is of promulgation and posting, there is none of
enforcement.
To support the Company's explanation that the rule was
posted to maintain production and discipline during working
hours, it was testified for the Company that the reference in
the posted rule was to union activities only because there was
no other kind of solicitation on working time. In this
connection the General Counsel offered a list of contributors
to a flower fund It appears that this was posted at the
cafeteria door sometime between the January and April
elections, a box being placed with it and the employees signing
as they contributed. It does not appear that the list's silent
solicitation or the contributions occurred during working time,
the location suggests that the employees were on break. We
have testimony concerning one exception- Shephard, who told
us about this, added that he made his contribution at his
machine, giving it to the employee whose sister had died, the
flowers being for the latter's funeral.
Nor is there proof of solicitation contrary to the posted rule
or of disparate treatment in the testimony that employee Kyle
(one of the intervenors) was collecting money outside the
plant door to buy company buttons When it was noted that
this was outside the plant, Saranko, who testified to this, told
us also that he saw the collection cigar box on Kyle's desk next
to his machine.
We do have evidence that Pillow in December 1966 passed a
box around in his department for Blurton, a truck driver who
was in the hospital. Since Pillow is a supervisor, the Company
is responsible for his action even though he testified that he
had never done this before and that he neither asked for
permission nor notified his supervisors. But I would not base a
finding of violation by the Company on this single instance; it
5 Standard Coil Products Company, Inc., 99 NLRB 899, 904, 905.
See also Allen Fruit Company, Inc., 101 NLRB 761, 762.
6 Ambox, Incorporated, 146 NLRB 1520, 1521.
ALTON BOX BOARD CO.
does not prove that the posting was disparately enforced or
violative. Indeed, the exceptional aspect of Pillow's action is
emphasized by the solicitation outside the plant the following
month.
The timing of the posting may warrant a finding that the
rule was discriminatorily promulgated and posted.' While this
rule was posted in the middle of the Union's earlier campaign,
which began in September 1966, and before the first election,
which was held on January 13 and thereafter set aside, we have
seen that, with the single exception which occurred after it was
posted, there was no occasion for a broader rule and no
disparateness in its application and enforcement. I find and
conclude that the promulgation and posting were not violative.
5. Rule against smoking
The allegation that a rule restricting smoking in the
restrooms has been enforced since about January 20, 1967, is
admitted; denied is the companion allegation that this has been
done because employees engaged in union activities, the
Company's position being that such a rule had been enforced
since long before that date. Received in evidence and testified
to by Production Manager Rogier was a notice dated March 1,
1966, from Rogier to all foremen, in which he cited the rule
which the Company "originally" had
Anyone caught smoking or loitering in the restrooms except
during normal company break periods will be subject to
immediate dismissal.
The notice further informed the foremen, "... the rule is to be
enforced" by them 48 hours after its distribution. Such a rule
was evidently not being enforced at that time, and it will
become evident that it was not thereafter enforced in the
intervening year prior to its admitted enforcement since
January 20, 1967.
Saranko testified that before the January election there was
no rule against smoking; he had been permitted to smoke in
the restrooms when there on breaks or "for the normal
purposes", he could (whether he actually did is not clear) go
there merely to smoke. French testified that before the
January election, although he smoked in the restroom when he
otherwise found it necessary to go and he did not go there
merely to smoke, there was no policy concerning smoking in
the restroom. Shephard knew of a rule against smoking in the
restrooms. He testified first that he did not know of any
instance when it was enforced but, his recollection refreshed
by an earlier statement, he told us that the rule had been
enforced in November 1966.
Employee Moody's knowledge and experience were dif-
ferent. Before January 13, he told us, he knew of no rule
against smoking, and he went into the restroom to smoke
whenever he wanted to during slack periods "or if things
would get too rough", but during the week after the January
election Supervisor Williams told him, "Now no one will be
allowed to smoke in the restroom."
Brock, not very reliable in his testimony concerning another
employee's card which he endorsed, testified uncertainly first
that there had been a rule against smoking in the restroom and
elsewhere, but then that Pillow told him that after the
election. I do not rely on this testimony. (The witness did not
indicate that he was basing his answers on a variance in the
dates cited to him, January 20 and January 13.)
749
For the Company, Ziegler, the general foreman, testified
that there "has always been a rule" against smoking or
loitering in the restroom and that it had been "strictly
enforced." If the rule had "always" existed as Ziegler testified,
Rogier's memorandum to the foremen suggests that it had not
been strictly enforced despite Ziegler's testimony that it had
been since he came to the plant in 1963. Beyond that, if the
rule was known to and recognized by some employees, clearly
it had not been enforced or known to all or even to a
substantial majority if we can judge from the testimony
received.
Here again we have the element of timing. If "as many as
six or eight at one time" congregated in a restroom and
prompted the March 1966 memorandum, there is no evidence
to explain the admitted enforcement since January 1967 and
the failures to enforce earlier, as testified. Such a rule does not
appear to have been or to have been regarded by the Company .
as a serious matter asked whether it appeared in the company
rulebook, General Manager Collins replied that he did not
know. The question was not pursued, and although Rogier's
memorandum indicated serious and frequent violations, Collins
told us further that no disciplinary action was ever taken
because of such violations. Without supplying details or any
information concerning action taken, if any, Ziegler testified,
"As far as I know, all disciplinary action, as far as no smoking
in the restroom, has been oral."
Nor does Pillow's testimony support the claim that the rule
had been earlier enforced. For while, enforcing the rule in
January, he told the men under him that there was too much
loafing and smoking in the restroom (he had seen 8 or 10
standing around loafing and smoking in the restroom a day or
so before), he had observed that from time to time on various
occasions since the previous August but had never warned or
otherwise disciplined anyone for it. As Pillow explained it, he
now spoke to his men about it "[f] or their own protection,
for their own good." It is this sudden need for protection
which is here attacked. There is no support for Drake's
testimony that prior to the advent of the Union some foremen
enforced the rule strictly, some not.
The issue is not whether there had earlier been such a rule,
but whether it had not been enforced while it now was
enforced because of the employees' protected concerted
activities. On the basis of all of the testimony on this issue, pro
and con, I find and conclude that, the election having been
held, the Company unlawfully retaliated by enforcing the rule.
C. The Alleged Violation of Section 8(a)(3)
Referring to the same merit increases concerning which
McGill had written and spoken in April, it is alleged that merit
increases have been withheld since November 4, 1966, because
of the employees' union activities, and to induce them not to
become or remain members. The violation alleged and argued
by the General Counsel is the withholding of merit increases,
not of any general increase, regular, periodic, and deter-
minable. Nor, whatever the remedy might be in such a case, is
the violation alleged to be the failure to make merit reviews.
Here reviews and upgradings are assumed, and the allegation is
that merit increases (in short, neither general increases nor
merit reviews) have been withheld.
7 Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527, 528.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 10(b) limitation date in this connection is November
26, 1966, and we are limited to violations after that date. This
covers merit reviews and ratings and merit increases in January
or April 1967, when quarterly reviews would be but were not
held. (Not in issue is the annual wage readjustment which was
made in June and, we were told, was larger than normal
because merit increases had not been granted.) A few
classification change increases were granted, but these were
objectively determinable without the element of discriminating
(or discriminatory) award which characterizes merit increases;
nor are they in issue
We have already referred to the Company's fear, declared
by Drake, of unfair labor practice charges if merit increases
were given to some employees and not to others. To find, as
we have, that McGill's references to the withholding of merit
increases was violative is not to hold that there was an actual
discriminatory withholding. The Company could well have
feared, as Drake testified, that unfair labor practices would be
filed if some increases were now granted; and while such fear
could not be based on the later event, the reasonableness of
the fear is supported by the Board agent's question to Drake
on May 17, noted above. The Company was faced with a legal
question to be decided at its peril. Whatever the answer to that
question, and the finding which might be but now need not be
based thereon, we must consider another aspect.
The statements concerning withholding of increases were
violative, as found, whether or not they were true no proof
was taken nor was any necessary in that connection to show
that increases were in fact withheld Where the issue is the
actual withholding, however, rather than statements about it,
proof of withholding is necessary, which is to say that certain
merit increases would have been granted defining the em-
ployees who would have received them and a reasonably
identifiable amount in each case. (To point to McGill's
admissions is to justify only the finding of interference.) I find
and conclude that we have at most proof that rating reviews
were withheld, not that merit increases would and should have
been granted. Even McGill could not correctly say, before
reviews were made and ratings established, that merit increases
were withheld. (Drake told us that employees are rated
quarterly but that the Company has no set policy to grant
merit inceases.) Accuracy in this respect is important because
it reflects what is alleged and also prevents us from creating a
problem as to remedy. Whether for sufficient and valid reason
or not, what was withheld was merit review, which might lead
to increases. To say that merit increases were withheld is to
assume without evidence a definite result from an unde-
termined and now unmeasurable review.
A finding of violation in failing to make merit ratings, were
that alleged, would lead to the same complication with respect
to remedy. By very definition, merit increases in this case
depend on merit ratings and review. They are not automatic;
and we do not even have standards, or reference thereto, for
determination. If, despite fear and later threat that a charge of
violation might be filed were increases granted, the failure to
make ratings were violative, we are not empowered to make
such ratings to support an award of retroactive increases and
backpay. The General Counsel has neither submitted standards
to be applied nor claimed the authority or ability to do so.
Were it alleged that the withholding of regular or determin-
able increases was violative, we would be concerned with
finding "a basis for a reasoned conclusion"8 as to the amount
of backpay. Nonexistent merit ratings do not provide such a
basis. It is within the Board's power to direct reimbursement,
were the amount reasonable determinable, on the 8(a) (1)
finding made above that the Company referred to a with-
holding of merit increases. Such withholding thus adirutted
would provide basis for reimbursement, a basis which cannot
be found in the omission of rating reviews which might have
led to merit increases to unidentified employees and in
unidentified amounts
The issue can be approached in another way, no more
satisfying to the General Counsel Although the distinction
between increase based on merit review and those regularly
granted or based on stated factors was noted at the hearing,
the General Counsel has offered no authority in support of his
position. The Board noted that "specific wage and fringe
benefits" had been proposed in McCormick Longmeadow
Stone Co., Inc ,9 cited by the General Counsel.
M & W Marine Ways, Inc.,10 cited by the Company,
involved merit increases presumably needed to meet compe-
tition, a measurable element, and is hardly in point here. In
The Borden Company,i 1 also cited by the Company, wage
increase reviews according to past practice were suspended by
the employer but, with indefinite postponement of the
election, were granted. It is something else to say that a
converse withholding of such reviews would have there been
violative (the indefinite postponement would have been a
consideration) or that an employer, making a decision under
such circumstances, acts at his peril where discrunrnation is not
in fact shown with respect to which employees might have
been affected or to amount. These two cases lack the element
of uncertainty of award and amount thereof which here exists
Surely we must not overlook the Board's decision in
Ambox, Incorporated12 as it bears on increases and announce-
ment of increases while election proceedings remain undeter-
mined. The Board there held that the announcement of a
general increase "was calculated to influence" and was
therefore violative of Section 8(a) (1) (like the announcements
above). Granting of increases could, depending on other
circumstances, be deemed similar interference with employees'
choice of a collective-bargaining representative. If the increases
in Ambox were not according to a regular schedule, any here
could similarly be attacked as being without a fixed and
nondiscriminatory basis.
We can hardly hold that withholding of merit increases
particularly is discriminatory. To permit or insist on such, with
the inherent element of discretion, under such circumstances
would be to open a Pandora's box of argument. Different from
fixed, regular, or definitely ascertainable increases, what
standards should be applied and how great merit increases
recognized, and to whom, as proper while an election
proceeding is pending? Would not the Board have to sit in
judgment on the exercise of management's discretion (or itself
8 N.L R.B. v. Kartank, Inc., 227 F. 2d 190, 193 (C.A 8) Cf ascertained, used in making bonus payments in previous years...
American Fire Apparatus Company, 160 NLRB 1318, where, there, 9 158 NLRB 1237, 1238.
being no intervening element of rating or judgment not made, I the 10 165 NLRB No 24
Board declared that the amount of Christmas bonus paid to all 11 161 NLRB No. 114
employees was "to be determined by a formula , as neat as can be 12 146 NLRB 1520.
ALTON BOX BOARD CO
judge and pronounce on the basis of unidentified factors)
where, unlike even the case where it is claimed that there has
been an abuse of discretion, discretion with respect to identity
of employees and amount of increase has not been exercised?
To what extent was a merit increase justified in specific
instances, and to what extent would such increases have been
"calculated to influence" improperly?
751
Company 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 receipt of this Decision , what steps
have been taken to comply herewith 16
1 FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges violation of Section 8(a) (3) and (5) of the
Act
III THE OBJECTIONS TO THE ELECTION
In one way of another it has many times been declared and
recently repeated that 13
Where pre-election conduct of one of the parties has the
undesirable effect of unduly influencing its result, the
Board has set aside such election and ordered a new one.
The Board has striven to conduct elections in an atmos-
phere in which employees are free from pressure, coercion
and undue influence from either the employer or the union.
The Board has determined that elections must take place
under "laboratory conditions" to enable employees to
express their uninhibited desires.
While the rulings on the objections to the election would
appear to follow the findings of interference herein, I refrain
from making such rulings in view of the limited scope of the
consolidation by the Regional Director.14 With the agreement
noted that the proof in support of the objections would at no
point go beyond that offered with respect to the unfair labor
practices, and on the basis of the violations found herein, I
would recommend that objections 1, 3, and 6 be sustained,
and that objection 2 be overruled. Because the conditions for a
fair election have been destroyed, I would recommend further
(but do not) that the election be set aside I as
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case, I
recommend that the Company, Alton Box Board Company,
Humboldt, Tennessee, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Interrogating employees concerning union activities,
desires, and voting.
(b) Promising benefits and threatening employees in con-
nection with union activities
(c) Informing employees that wage increases had been
withheld because of union activities.
(d) Because of union activities, enforcing a rule against
smoking in the restrooms.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act
2 Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at its place of business in Humboldt, Tennessee,
copies of the attached notice marked "Appendix."' 5 Copies
of said notice, on forms to be furnished by the Regional
Director for Region 26, after being duly signed by the
Company's representative, shall be posted by the Company
immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are cus-
tomanly posted. Reasonable steps shall be taken by the
13 N L R.B v Tennessee Packers, Inc., 379 F.2d 172 (C A. 6)
14 Unlike a referral and consolidation "for the purposes of hearing,
ruling and decision by a Trial Examiner" and transfer to the Board, the
complaint herein recites a consolidation "for hearing " While this
needlessly complicates the proceedings , it appears in order to sever the
cases now that the hearing has been held (at the opening of the hearing,
I denied the Company 's motion to sever ), and to transfer the
representation proceeding to the Regional Director Such severance and
transfer are hereby effected. The election here was not held pursuant to
an agreement under Section 102 62 (a) of the Board 's Rules and
Regulations , Series 8, as amended . Cf Joslyn Stainless Steels, 167
NLRB No. 43 . It is only the limitation on the consolidation and referral
here which requires the severance and return to the Regional Director
for action with respect to setting aside the election.
14a
Errata , dated December 18,1967
I note the Regional Director 's Order of June 30, 1967, amending
his order of consolidation , and his amendment of July 3, 1967, to
the Order Consolidating Cases
I hereby revoke the severance indicated in my decision of
December 11, 1967 , and I recommend that objections 1, 3, and 6 to
conduct affecting the results of the election be sustained and that
the election of April 14, 1967, be set aside.
15 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
16 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 26, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interrogate employees concerning union
activities, desires, or voting.
WE WILL NOT promise benefits or threaten employees
in connection with umon activities.
WE WILL NOT inform employees that wage increases
have been withheld because of umon activities.
WE WILL NOT because of union activities, enforce a
rule against smoking in the restrooms.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, AFL-CIO, or any other labor
organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutual aid or protection, or to refrain from any or all such
activities
All our employees are free to become or remain, or refrain
from becoming or remaining, members of International Broth-
erhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO,
or any other labor organization.
Dated By
ALTON Box BOARD COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 746 Federal Office
Building, 167 North Main Street, Memphis, Tennessee 38103,
Telephone 534-3161