American Paper & Supply Co.

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1243 (N.L.R.B. 1966)

AMERICAN PAPER & SUPPLY CO. 1243
or other rights and privileges and make him whole foi any loss of pay he may
have suffered by reason of our discrimination against him.
All our employees are free to become or remain, or to refrain from becoming
or remaining members of any labor organization.
SWIFT AND COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his 'right to full reinstatement upon applica-
tion in accordance with the Selective Seivice Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted foi 60 consecutive days from the date of posting,
and must not be altered, defaced, or coveied by any other material.
If employees have any question concerning this notice or compliance with its
piovisions, they may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101,
Telephone 723-2301.
American Paper & Supply Company, Container Division and In-
ternational Printing Pressmen and Assistants ' Union of North
America, AFL-CIO. Case 27-CI-1885. June 24, 1966
DECISION AND ORDER' -
On February 28, 1966, Trial Examiner Janies T. Barker issued
his Decision in the above-entitled proceeding, finding that' Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the 'attached Trial Examiner's Decision. The Trial
Examiner also found that, Respondent had not engaged in certain
other unfair labor practices, and recommended that the allegations
of the complaint pertaining thereto be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and briefs in support thereof.
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-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions, the briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following additions and
modifications :
The Trial Examiner found that the July 20, 1965, announcement
by Nice President Hinckley to the employees who had signed union
159 NLRB No. 102.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards that a wage increase they were to get in October
similar to that provided in the Union's contract with a competitor,
could no longer be granted because the pending unionization efforts
did not exceed the permissible limits of Section 8(c) of the Act.
We find merit in the General Counsel's exceptions to the failure of
the Trial Examiner to find that such announcement was made to
discourage unionization, and violated Section 8(a) (1) of the Act.
In our opinion, it is immaterial that the announcement did not
expressly condition the granting of such wage increase upon the
rejection of the Union by the employees. We note that the meeting
at which the proposed wage increase was announced was held the
day after the Union had shown the Respondent's plant manager
authorization cards signed by all employees in the unit. At this
July 20 meeting, Plant Manager Robertson discussed with employees
.the economic benefits they were currently receiving and -'compared
:them with the benefits the Union had been able to obtain for the
employees of one of Respondent's competitors. The Respondent
announced for the first time that it contemplated granting a wage
increase, but that it was -prevented from putting any benefits into
effect at the present time because of the Union's organizational
campaign.
The natural effect of the announcement was to convince the
employees that they did not need a union in order to obtain wage
increases ,or other improvements in their conditions of employment.
Moreover, by shifting to the Union the onus for its not instituting
the purported planned wage increase, the Respondent sought to dis-
parage and undermine the Union by carrying the impression that
the Union stood in the way of the employees getting a wage increase.
Thus, Respondent held out to 'the employees a benefit they would be
receiving but for the Union.' By the foregoing conduct, we find
that the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act, and thereby violated Section 8(a) (1) of the Act.'
' See McCormick Longmeadow Stone Co , Inc, 158 NLRB 1237.
2 In view of ofir findings herein , we hereby amend the " Conclusions of Law" as follows,
Paragraph 7 of the Trial Examiner ' s "Conclusions of Law" is hereby deleted and the
following paragraphs 7 and 8 substituted •
7. By announcing proposed wage increases and thereafter withholding such wage in-
creases for the purpose of inducing employees to forgo collective representation through
the Union , the Respondent has engaged in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
8. The Respondent did not unlawfully interrogate employees concerning their union
activities and preference , or threaten to reduce employees ' wages if they selected the
Union as their collective -bargaining representative.
AMERICAN PAPER & SUPPLY CO. 1245
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Reletter paragraph 1(c) to 1(d) and insert the following as
paragraph 1(c) :
["(c) Announcing or threatening to withhold wage increases for
the purpose of influencing employees with respect to union activity,
affiliation, assistance, or designation."
[2. Relettered paragraph 1(d) is amended to read :
[" (d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,,
to form, join, or assist International Printing Pressmen and As-
sistants' Union of North America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities."
[3. Add the following as the third paragraph to Appendix A
attached to the Trial Examiner's Decision :
[WWE WILL NOT announce or threaten to withhold wage
increases for the purpose of influencing our employees with
respect to union activity, affiliation, assistance, or designation.
[4. The last paragraph in Appendix A is amended to read :
[WWE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the International Printing Press-
men and Assistants' Union of North America, 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 mutual aid or protection, or, to refrain from any or all
such activities.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 5, 1965,1 by, International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, hereinafter called the Union, the
Regional Director of the National Labor Relations Board for Region 27 on Sep-
tember 16, 1965, issued a complaint and notice of hearing alleging violations of
Section 8(a)(1) and (5) of the National Labor Relations Act, hereinafter called
the Act.
Pursuant to notice a hearing was held before Trial Examiner James T. Barker
at Salt Lake City, Utah, on November 16. All parties were represented- at the-
hearing and were afforded full opportunity, to be- heard; to introduce, relevant
1 Unless otherwise indicated, all dates refer to 1965.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence, to present oral argument, and to file briefs with me Counsel for the
Respondent presented oral argument and thereafter counsel for the General Coun-
sel and counsel for Respondent filed briefs with nie.
Upon consideration of the- entire record 2 and the briefs of the parties, and upon
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT -
Respondent is, and at all times material herein has been, a Utah corporation
maintaining an office and place of business at 410 West Seventh South Street, Salt
Lake City, Utah, where it is, and at all times material herein has been, engaged
at said location in the business of manufacturing cardboard boxes. In the opera-
tion of its business at said Salt Lake City, Utah, location Respondent annually
purchases and causes to be shipped goods and material valued at more than $50,000,
directly from -points outside the State of Utah.
Upon these admitted facts I find that at all times material herein Respondent
has been an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Printing Pressmen and Assistants' Union of North America, AFL-
CIO, is admitted by Respondent to be a labor organization within the meaning of
Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that at all times material since July 16, the Union has
been the collective-bargaining representative of a majority of Respondent's employ-
ees in an appropriate production and -maintenance unit at Respondent's 410 West
Seventh South Street plant in Salt Lake City, Utah, but that since July 19 the
Respondent has refused and continues to refuse to recognize and bargain collec-
tively with the Union. The complaint further alleges that commencing on July 19
the Respondent engaged in a course of conduct comprised of unlawful interrogation,
threats, unilateral promise of benefits, and solicitation of employees to bargain
individually with it in derogation of the Union's status as bargaining agent.
• The Respondent denies the allegations of the complaint and affirmatively con-
tests the majority status of the Union, the appropriateness of the unit, and the
authority of Plant Manager Floyd Robertson to ofter, on behalf of Respondent, a
wage increase to employees and to request employees to bargain individually with
Respondent, as alleged in the complaint.
B. Pertinent facts
1. Respondent's operations and employee complement
Respondent's officers are Michael Hinckley, vice president and Floyd Robertson,
plant manager of its container manufacturing division .3 Ray Sack, has been at
times material a foreman in the container-manufacturing division.
During the period July 19 through 21, Respondent employed at its 410 West
Seventh South, Salt Lake City, Utah, container-manufacturing plant, four pro-
duction and maintenance employees.
Floyd Robertson maintains an office at the 410 West Seventh South location,
sometimes referied to as the "box plant." Additionally, at times material herein,
Respondent has maintained at a nearby location a separate segment of its manu-
facturing operations, and on these premises is located the principal office of the
Company and of Michael Hinckley, Respondent's vice president.
2 On December 20 the counsel for the General Counsel filed a motion with me, to correct
the transcript. The Respondent interposed no objection thereto. In consideration of
the motion and upon my Independent study of the transcript, the motion is granted as
reflected at Appendix B.
3 The parties stipulated to Robertson's supervisory status.
AMERICAN PAPER & SUPPLY CO. - 1247
2. The organizational activities
Len Buell, the Unions International representative and organizer , credibly testi-
fied that on July 16 he met at a Salt Lake City motel coffee shop with Nardra
Chatwin, David and Daniel Whetman , and Leland McLing, production and main-
tenance employees at Respondent 's Salt Lake City container -manufacturing opera-
tion. At this meeting, Buell discussed with the employees the role of the Union
and the benefits to be derived through affiliation with it . He described operations
of the Union and its organizing methods and answered questions posed to him
by the employees . During the discussion , in answer to employee questions con-
cerning the necessity of a vote to permit the Union to represent the employees,
Buell responded that it "would be better to go for direct recognition ," but that if
an election were rendered necessary , a vote of the majority of the employees would
be essential in order to designate the Union as the employees ' bargaining repre-
sentative . He discussed the subject of dues and informed the employees there
would be no dues collected until and unless the Union had a signed agreement with
the Company.
At the conclusion of the question and answer period, Buell asked the employees
if they desired to become members of the Union , and a vote was taken wherein
each employee recorded his vote on a separate slip of paper . The vote was unan-
imous in favor of joining the Union Thereupon , Buell distributed authorization
cards to the employees and each employee completed and executed a card. These
cards were returned to Buell and the meeting terminated.
Buell retained custody of the authorization cards until the next day when he
gave them to Union Representatives Clarence Palmer and Elmer Theiss.
3. The demand for recognition and bargaining
On the afternoon of July 19, Clarence Palmer and Elmer Theiss met with Floyd
Robertson in Robertson 's office. They identified themselves as representatives of
the Union and Theiss, acting as spokesman , requested that employees David Whet-
man and Leland McLing be permitted to attend the meeting in their role as com-
mitteemen for the employees . Robertson stated that , as the employee complement
was a small one, production could not be maintained without the presence of Whet-
man and McLing at their respective work stations , and he therefore declined to
permit either Whetman or McLing to attend the meeting.
At this point , Theiss stated that the Union represented "the employees" and
requested recognition . He submitted to Robertson the authorization cards of
Nardra Chatwin , Leland McLing , David and Daniel Whetman. Robertson
examined the cards and Palmer and Theiss thereupon stated the Union was seek-
mg to represent a unit of production and maintenance employees and requested
Respondent recognize the Union . In conjunction with this request the union rep-
resentative proffered two copies , in blank , of the following document:
It is hereby agreed and understood by and between' the
------------------------------, Employer, and the
Printing Specialities and Paper Products Union No. 451,
I.P.P. & A .U. of N.A , AFL-CIO , the Union , to-wit
1. That the Employer recognizes the Union as the sole
collective bargaining agent for its production and
maintenance employees as defined in the National Labor
Relations Act.
2. That the parties signatory hereto shall meet within
fifteen days next following the execution date of this
agreement for the purpose of negotiating a Collective -
Bargaining Agreement covering hours,. wages and conditions
of work for the above designated Employees.
The conversation from this juncture turned to the economic status of the Com-
pany, and its prospects for an expandeu employee complement . At one point
during the meeting Robertson expressed his personal satisfaction that the Union
rather than the Teamsters was the labor organization seeking Respondent 's recog-
nition . However, Robertson informed Theiss and Palmer that he did not have
authority to recognize the Union , and that this decision would have to come from
Michael Hinckley, the Respondent 's vice president . Robertson further informed
Theiss and Palmer that other officials of the Company were officed at another
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
location, that Respondent was holding a board meeting the following afternoon,
and that he would inform Vice President Hinckley of the Union's request. He further
asserted that the matter would undoubtedly receive consideration of the board and
that he would let Theiss and Palmer know the next day what disposition was made
of the matter by the board. Theiss instructed Robertson to call the Palmer resi-
dence and gave Robertson the Palmer telephone number.4
4. Theiss and Palmer meet employees
After the conference Theiss and Palmer met after working hours near the plant
premises with employees Chatwin, McLing, and the Whetman brothers and related
to them the events of the meeting, with Robertson.
5. The Union's letter demand for recognition
Neither Palmer nor Theiss received a telephone call or written response the
following day. However, a letter dated July 20 was sent to Respondent reaffirming
in writing the previous day's meeting with Robertson The letter was addressed to
Respondent, for the attention of "Raymond C. Sack, plant manager," at the 410
West Seventh South location.5 The letter bore the signature of Clarence Palmer
and was received in the due course of the mails by Respondent. In pertinent part
it read
This letter shall serve as written confirmation of our verbal request for
Recognition as Collective Baigaining Agent made July 19, 1965 in your office
at 410 West 7th South, Salt Lake City, Utah.
In the presence of I, the undersigned, and my colleague, Mr. E. P. Theiss,
AFL-CIO representative, I exhibited to you signed authorization cards of four
of your employees to substantiate proof of our claim of majority representa-
tion status.
In the event your firm does not grant Recognition, we shall immediately
file failure to bargain charges with the National Labor Relations Board as
provided in the Act.
In view of the incontrovertable evidence presented to you of our majority
status, any course on your part other than Recognition would be simply
designed to destroy our majority status and therefore inimical to the intent
of the Labor Relations Act as amended.
6. Representation petition filed
During late afternoon of July 20, Palmer went to the office of the Union where
he prepared a representation petition and where the petition was executed by a
representative of the Union. The petition, together with the authorization cards
of Nardra Chatwin, Leland McLing, and Daniel and David Whetman, was mailed
to the Denver Regional Office.6
Prior to July 19, neither Palmer nor Theiss had visited the offices of Respondent
regarding recognition or bargaining, and they did not thereafter meet with or speak
telephonically to either President Hinckley or Vice President Michael Hinckley
concerning these matters.
7. Hinckley informed of union demand
In the meantime, according to the credited testimony of Michael Hinckley, Rob-
ertson informed Michael Hinckley of the meeting he had had with Palmer and
Theiss, and Robertson told Hinckley that he had seen cards purporting to bear the
signatures of the employees. Hinckley testified that he declined to take the initia-
tive in contacting the Union because he felt it was the Union's responsibility and
because he instructed the employees to have the Union contact him.
David Whetman testified credibly that Hinckley had instructed him to have the
Union contact him, asserting that he, Hinckley, personally was not opposed to the
Union but that his father was.
4 The foregoing is based on a composite of the credited testimony of Clarence Palmer
and Elmer Theiss.
c Theiss testified that the reference to Sack in lieu of Floyd Robertson resulted from a
misunderstanding of his instructions by the public stenographer who prepared the letter at
his directions
e The authorization cards in evidence bear the Region's July 21 date stamp
AMERICAN PAPER & SUPPLY CO. 1249
8. Hinckley meets with employees
On the afternoon of July 20, Hinckley and Robertson met with employees Chat-
win, McLing, and David and Daniel Whetman in the foreman's office at the box
plant. Preparatory to the meeting Hinckley obtained a copy of the current
collective-bargaining agreement between a competitor and the Union. Hinckley
credibly testified that he obtained the contract because the competitor, Packaging
Corporation of America, herein called PCA, was in the same business; because it
was with the same union; and because he assumed that wages constituted the prin-
cipal inducement to the employees to seek union representation, and he accordingly,
wanted to compare the wage scale in order to determine if the Company were in
line with the area scale.
Hinckley commenced the meeting by stating that he had heard of the employee
desire to have union representation and stated that he would like to speak to them
concerning this. He observed, however, that he could not understand why the
employees wanted a union because they had gotten along all these years without
one. He then asked the employees why they wanted a. union. None of them
answered.? He observed that efforts had been made to organize other segments of
the operation but that these efforts had been unsuccessful. He stated that he had
in his hands a contract between PCA and the Union and that he would like to com-
pare the wage scale therein to that currently being paid to the employees by the
Company.8 Hinckley then made specific, individual comparisons between the wages
being paid each employee and those provided under the PCA agreement. The com-
parison as conveyed to the employees by Hinckley revealed that only Nardra Chat-
win would receive a higher rate of pay under the PCA contract.9 Hinckley also
revealed to the employees that the PCA agreement provided for a wage increase in
October 1965. He further asserted that the Company's employees were to have
received a wage increase in October 1965, which could no longer be lawfully
granted, and admonished that, in the circumstances, he could not discuss wage
increases for the employees because it would be unlawful to do so.10 Hinckley then
invited the employees to bring any complaints concerning working conditions to him
or Robertson, asserting that their doors were always open. There then ensued a
discussion of measures taken to cool the plant-a subject that had been discussed
by management and the employees on several occasions prior to the advent of the
Union.
7 This finding is based upon the testimony of Nardra Chatwin and Daniel Whetman, the
latter a witness called on behalf of the Respondent.
8 Michael. Hinckley testified that the PCA contract was mentioned only after an em-
ployee had raised the issue of wages This testimony has no other records' support. In-
deed, the testimony, of Daniel Whetman, who impressed me as a witness reluctant to testify
adversely to Respondent 's interest, is to the, contrary. I credit Daniel Whetman and
reject Mtchael Hinckley, in this regard.
Leland McLing, a witness who impressed ,me, as possessing a singularly vague recollec-
tion of the details of events, testified, after referring to his pretrial affidavit for the pur-
pose of refreshing his recollection, that Hinckley had additionally observed that lie "could
not understand anyone wanting to take less money." No other witness testified in this
vein. Considering the, record context of McLing's, testimony, his, testimony, as a whole,
and my impressions of him as a witness„ I do. not credit this testimony.
io, The testimony of Nardra Chatwin, a generally credible witness, and of Daniel Whet-
man was to , the effect that Hinckley promised the employees a wage increase in October
Hinckley and Robertson deny that any direct promise, of a wage increase was made
I credit them, but find that, in context with the disclaimer of latitude to promise or discuss
specific wage increases , Hinckley. communicated,, the. concept of a planned wage increase
now frustrated. In making this credibility resolution, I have considered the uncontradicted
testimony of Nardra,Chatwin that a week after the meeting she asked Robertson if she
were going to receive. a wage increase and he responded, "Yes, probably" Robertson's
response would be meaningful only if there had, been. a previous discussion of an October
wage increase . Chatwin testified that she had been prompted to interrogate Robertson
concerning the wage increase by remarks of Hinckley at the July 20 meeting Moreover,
the testimony of Daniel Whetman whose reticence as a witness in support of the General
Counsel's case I have already noted, reinforces the likelihood that Chatwin's recollection is
accurate on this point.
243-084-67-vol 159-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. The discussions continue in the plant
After the meeting, according to the credited testimony of Daniel Whetman, the
employees followed Hinckley out of the office, and David Whetman requested per-
mission to look at the PCA agreement. He credibly testified he was motivated to
make that request by the disparity between the higher PCA wage rate Buell had
earlier cited as applicable to his classification and a lower one cited by Hinckley. In
the presence of Hinckley and Robertson, the employees studied and discussed the
wage scale contained in the agreement. Hinckley again made a comparison between
the contract scale and that of the Respondent, and reiterated that the male employ-
ees would receive a lower compensation under the PCA scale.
Nardra Chatwin and Leland McLing testified that during these discussions of the
comparative wage scales, David Whetman addressed a comment to Hinckley and
Hinckley responded. Neither could define the contents of Whetman's question or
of Hinckley's response. However, both testified,^in substance, that Robertson inter-
jected, advising Whetman that if he did not desire to discuss the matter in the
presence of the other employees, he could do so in private. Chatwin testified that
Whetman asserted in response to Robertson that the matter concerned all of the
employees and should be discussed in their presence." Neither Hinckley nor
Robertson were interrogated concerning this.
10. Palmer again meets with employees
At approximately 5 p.m. on July 20, Palmer received a. telephone call from
Leland McLing inviting him to a meeting of employees to be held at the home of
David Whetman. Palmer met with the employees at McLing's home. He informed
the employees that the Union had filed a representation petition with the Board,
explaining the election procedures and answering employee questions concerning it.
David Whetman informed him that that afternoon at the plant Michael Hinckley
had met with the employees and during the meeting had cleared up many of the
problems that had been of concern to the employees. Whetman inquired whether
it was permissible for him to continue to meet with Hinckley during the period
before the election. He specifically mentioned as a topic of further discussion the
cooling system for the plant. Whetman further conveyed to Palmer that Hinckley
desired to meet with him concerning the Union's request for recognition. Palmer
declined to meet with Hinckley.
Palmer also informed the employees that it was unlawful for the Company to
grant concession to the employees in order to influence them in their decision con-
cerning union representation and he reiterated that the representation petition had
been filed with the Board, and that, while he felt direct' recognition was still the best ,
course to be pursued, if an election were held, in order for the Union to prevail, it
would be necessary to have a majority of the employees in favor of the Union.
Palmer then took a poll of employee sentiment, and all save David Whetman
indicated a desire to continue to be represented by the Union. David, Whetman
expressed the opinion that the employees would be best served through dealing
directly with the Company without the Union.
11. The consent agreement
On July 30, pursuant to the representation petition that was filed on July 20, and
received by Michael Hinckley on or about July 23, the Respondent and Union
entered into a consent-election agreement' proceeding for an election to be con-
ducted on August 10. The agreement had been preceded by two conversations
between Hinckley and a Board agent.
12. Union requests bargaining
The credited testimony of Len Buell and Michael Hinckley establishes that on
August 2, Buell, the Union's International representative and organizer, and
Michael Hinckley conversed by telephone. Buell stated to Hinckley that the Union
represented all of Respondent's employees and requested Respondent meet with a
committee of the plant employees and negotiate a contract on behalf of the employ-
ees. Hinckley declined to do so stating that there was an election pending, and
U McLing conjectured that Whetman's question related to the issue of air conditioning
and that Robertson's invitation related to the discussion of grievances.
AMERICAN PAPER & SUPPLY CO. 1251
that he felt this matter should be resolved through the secret ballot provided by
this procedure. Buell, however, responded that as Respondent had seen the
authorization cards of all the employees and knew their preference, no election was
required to determine employee sentiments. Hinckley expressed concern over pos-
sible Teamster intervention in the election, and Buell discounted this possibility.
Buell again contacted Hinckley by telephone some three or four days later and
they conversed in a similar vein.
Again, on August 5, while in Denver, Colorado, for the purpose of filing a charge
leading to the instant proceeding, Buell again telephoned Hinckley. According to a
composite of the testimony of Buell and Hinckley, Buell expressed his reluctance to
proceed with the formal unfair labor practice processes of the Board and stated his
desire to bargain collectively with Respondent. He further asserted that if this were
done the Union would withdraw the unfair labor practice- charges. Hinckley restated
his feeling that the matter should be left to a vote of the employees and again men-
tioned the prospect of another union coming into the picture, asserting his under-
standing that if the election procedures were resorted to,.the representation question
would be settled for one year, whereas if bargaining were undertaken, another union
could "contest it a few months later." Buell expressed reluctance to proceed with
an election, expressing doubt that the Union could prevail in an election.
13. Buell's contact with employees .
In the meantime, in late July, Buell had conversed separately with Nardra Chat-
win and Leland McLing and had learned that while they still preferred union repre-
sentation, David and Daniel Whetman no longer were in favor of the Union.
During the first week of August, Buell contacted David Whetman to arrange for a
joint meeting of Respondent's employees with those of another employer. Buell
asked Whetman to assist in setting up the meeting and Whetman agreed to do so,
but in answer to Buell's query, Whetman stated he was no longer in favor of the
Union and felt that the Company would take care of the matters which had con-
cerned the employees, and specifically mentioned the plant cooling matter as the
concern of the employees. Buell later learned that the employees of the other
employer had not been informed of the meeting and the meeting was canceled.
In mid-August Buell again spoke with David Whetman by telephone. He reit-
erated the substance of his previous comments to Buell and stated that he did not
want to support the Union, because his best interests would be served by looking out
for himself.
Conclusions
The parties stipulated, and I find, that a unit of all production and maintenance
employees employed by Respondent at its 410 West Seventh South, Salt Lake City,
Utah, plant, excluding office clerical employees, professional employees, guards, and
supervisors as defined in the Act, and all other employees constitutes a unit appro-
priate for The purposes of collective bargaining' within the meaning of Section 9 (b)
of the Act.
'I further find that this unit, composed solely of employees employed in the con-
tainer-manufacturing division of the Respondent, at times material, consisted of four
employees, Nardra Chatwin, Daniel Whetman, David Whetman; and Leland-McLing.
Additionally, I find that in executing authorization cards containing' unambiguous
language designating the Union as,their bargaining agent, each of the employees on
July 16 authorized the Union to represent them in the capacity of a collective-
bargaining agent, and that on July 19, when Uiii6n'Representatives Theiss and Pal-
mer met with Plant Manager Robertson, the Union represented, -a majority of
Respondent's employees in an appropriate unit. The evidence of a record is insuf-
ficient, I find, to establish union misrepresentation concerning the purpose or effect
of the cards, as would, under controlling precedent, invalidate them.12
Additionally, I find, contrary to Respondent, that the demand made on Floyd
Robertson by Theiss, accompanied by the presentation of the recognition agreement,
which specifically requested collective-bargaining negotiations as a concomitant of
recognition, substantiated by the executed authorization cards of each employee com-
prising the unit, constituted a valid demand for recognition and collective bargain-
ing.13 The Respondent concedes that Robertson was its plant manager and its agent,
12 See Cumberland Shoe Corporation , 144 NLRB 1268; 'see also N.L.R.B. v. Gotham Shoe
Mfg. Co., 359 F .2d 684 enfg 149 NLRB 862.
13 N.L.R B. v. Rural Electric Co., Inc., 296 F.2d 523 (C.A. 10).
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, in those circumstances, despite Respondent's assertion to the contrary, a demand
made upon him, a managing agent of Respondent, is as binding upon Respondent as
one upon its principal officer. Particularly i6 is so, in the light of the admission of
Vice President Michael Hinckley that he had been timely apprised by Robertson of
the Union's demand. The validity of a bargaining request is no more to be measured
by slavish adherence to nuances of protocol than to "special formula or forms of
words." 14
The Respondent contends, however, that even if a valid demand and the Union's
majority were established, it may not be found to have violated Section 8(a)(5) of
the Act because its refusal to recognize and bargain collectively with the Union was
predicated upon a good-faith doubt of the Union's majority status, and its belief that
this status should be established through a Board-conducted election.
I find that on July 20 when.it failed to respond to the Union's bargaining demand,
Respondent did not, in fact, entertain a good-faith doubt concerning the Union's
majority, but that it refrained from recognizing the Union out of conviction that the
Union's following could be diluted by the. persuasive efforts of Michael Hinckley, its
principal managing officer. The conclusion that Respondent entertained no good-
faith doubt is based on evidence revealing that although presented with the cards of
all employees and permitted to examine them, Robertson did not question their
authenticity or seek further proof thereof; that Hinckley, like Robertson, did not
raise any question of substance concerning their authenticity or predicate his failure
to respond to the Union's request on grounds relating to the authenticity of the
cards; 15 and by the further evidence revealing that, indeed, Hinckley proceeded to
the July 20 meeting with the employees on the assumption that they had designated
the Union as. their representative, and that countervailing persuasion by him was
necessary to convince the employees that representation by a union was not essential
to their interests as employees.
This being the state of affairs, as the Union did in fact represent a majority of
Respondent's employees in an appropriate unit, as Respondent entertained on July 20
at the time of the meeting, no in praesenti good-faith doubt as to the Union's major-
ity status, and as it is apparent that it desired an interim period before recognition
in which to seek to erode the Union's following, the Respondent was under obliga-
tion on July 20 to recognize and bargain with the Union.16 I further find that this
obligation subsisted at all relevant future times even though I am convinced that
Respondent's refusal after the meeting of July 20 to recognize the Union, and its
insistence upon a Board election, was based on a conviction that the Union could no
longer command majority support. To this extent, Hinckley, I am convinced,
believed that he had accurately appraised the defeasibility of the Union's following
in the face of his persuasive efforts, which I find, included conduct violative of the
Act.17
General Counsel contends that remarks at the meeting of July 20 were themselves
violative of Section 8(a)(1) and/or Section 8(a)(5) of the Act, and reveal a pur-
pose on Respondent's part to delay recognition with the object of, eroding the Union's
majority.
The remarks were, in point of, fact, restrained, and cast essentially in subjective
terms devoid of threat or promise underscoring the Respondent's salient thesis that
unionization would not necessarily redound to the favor of, the employees. Thus,
the comparison between,the existing, wage rates was, so far as the record reveals,
factual and devoid of threats,, expressed or implied, that unionization would lead
inevitably to a ,decrease in wages. Certainly, neither Hinckley's remarks nor those
that later transpired in the plant immediately after the meeting which. related to the
comparative wage rates, are susceptible of the interpretation that in resorting to a
comparison between the prevailing company wage scale and that of, a unionized com-
petitor, Hinckley was implicitly, threatening to decrease, employee wages as a retribu-
tion against their unionization. Hinckley's expression of wonderment as to the desire
14 See Joy Silk. Mills v. N.L R.B., 185 F.2d 732, 741 (C.A.D.C.), 341 U.S 914
15 In this regard see Jem Mfg., Inc., 156 NLRB 643.
18Fred Snow, et at. d/b/a Snow & Sons , 134 NLRB 709, 710-711, enfd 308 F.2d 687
(C.A. 9) ; N L.R.B. v. F. M. Reeves & Sons, 273 F.2d 710 (C.A. 10) ; Mitchell Concrete
Products Co., Inc., 137 NLRB 504; Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F.2d
732 (C.A.D C.) ; cf. John P. Serpa, Inc., 155 NLRB 99.
14 See Joy Silk Mills , Inc., supra ; Medo Photo Supply Corporation , v. N.L.R B., 321
U.S. 678, 687.
AMERICAN PAPER & SUPPLY CO. 1253
of employees for collective representation, cast in interrogatory form, was, in context
of his total remarks, fleeting and lacking in imperative quality. It hardly rose to the
level of overt interrogation concerning union activity and preference as would be
violative of Section 8 (a) (1) of the Act.
Nor did Hinckley then exceed the permissible limits of Section "8(c) when he
informed employees that a wage increase planned for October 15 could not be real-
ized in deference to the legal requirements imposed upon Respondent, in the face
of unionization efforts, to refrain from granting employee benefits. The complaint
alleges, and the General Counsel in his briefs advances this as a violation of the Act
because, assertedly, a wage increase to become effective October 15 was promised as
an inducement to employees to forgo unionization. The record evidence is quite to
the contrary and, in the form distilled in the record, the remarks emerge neither
as a promise of benefit to be bestowed as a reward for rejecting the Union, nor as
a penalty to be lodged against the employees as a price for their resort to the Union.
This conclusion is warranted, I am convinced, for the wage increase does not appear
to have been previously announced to the employees, and quite accurate was Hinck-
ley's innuendo that union approval of any wage increase would now be required
in order for Respondent to avoid the charge that the wage increase was offered as
an allurement to forgo unionization.18 Nor do I find that in total context of the
exchange of pleasantries between Nardra Chatwin and Floyd Robertson on_ July 27,
was Robertson's ambivalent off-hand response to Chatwin's question about an
October raise, violative of the Act.
But the General Counsel additionally contends that quite irrespective of the
transgressions that may have occurred otherwise at the meeting of July 20 and
during its aftermath, the Respondent independently violated Section 8(a)(5) by
soliciting employees to bargain individually with management in derogation of the
union status as exclusive collective-bargaining representative.
I find that despite the frailities of the record with respect to the exchange between
Hinckley and David Whetman which in haec verba would define the terms of the
invitation to individual bargaining, the response of Whetman, which is recounted in
specific terms through credited testimony, reveals that the invitation related to a
matter of common interest to all employees and related also to their employment
relationship. I further find that in context with the open forum discussion which
followed and which related to a condition of employment, the remark of Hinckley
underscoring the open door policy of the Company was intended and acted upon
as an invitation to individual bargaining on matters which, in light of the July 20
status of the Union as designated collective-bargaining representative, were properly
and lawfully to be discussed through the Union only.
In the circumstances, I conclude and find this invitation to bypass the designated
collective-bargaining representative of the employees, and this consultation with em-
ployees concerning conditions of employment, independently violated Section 8(a) (5)
and (1) of the Act 19 Moreover, I further find that the Respondent violated Section
8(a)(5) of the Act in failing to recognize and bargain with the Union on July 20,
at a time when it entertained no good-faith doubt as to the Union's majority, and
when the obligation had matured, under the verbal assurances of Robertson, to
respond to the Union's demand of the previous date.20
As the apparent loss of the Union's majority after July 20, was, at least in part,
attributable to the Respondent's unfair labor practices, as found above, it is of no
moment that Respondent may have doubted the Union's ability to prevail at a Board
election when, on July 23 it received the Union's representation petition; or that this
same certitude may have dictated its entry into the consent agreement, or its rejec-
tion of the Union's repeated August bargaining requests which I find also to have
violated the Act.21
Is See Hawkins -Hawkins, Inc , 121 NLRB 740, 747; cf. Briggs IGA Foodiiner, 146
NLRB 443.
is 3ledo Photo Supply Corporation , 321 U. S 678, 684 See also J. R. Simplot Company,
145 NLRB 171, 172. That the invitation to direct dealing occurred in comparative isola-
tion from other unlawful inducements does not exempt it from the strictures of the Act.
See Fran he's, Inc., 151 NLRB 532.
m See cases cited supra at footnote 16
21 Medo Photo Supply Corp . v. N I R B., supra.
1 2M DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of Respondent described in section I, above, have a
close , intimate, and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom , and take certain affirmative
actions which are necessary to effectuate the purposes of the Act.
Having found that Respondent has failed to recognize and bargain collectively
with the Union as the exclusive bargaining representative of employees in an appro-
priate unit , it will be recommended that, upon request , Respondent bargain collec-
tively with International Printing Pressmen and Assistants ' Union of North Amer-
ica, AFL-CIO, as the exclusive bargaining representative of the employees in the
unit hereinafter desciibed , arid, in the event an understanding is reached , embody
such understanding in a signed agreement
Upon the basis of the foregoing findings of fact and upon the entire record in
this case , I make the following.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. International Printing Pressmen and Assistants ' Union of North America,
AFL-CIO, is a labor organization within the meaning of Section 2 ( 5) of the Act.
3 All production and maintenance employees employed by Respondent at its
410 West Seventh South Street , Salt Lake City , Utah, container -manufacturing
division plant, excluding office clerical employees , professional employees , guards
and supervisors as defined in the Act , and all other employees, constitute a unit
appropriate for collective bargaining within the meaning of Section 9(b) of the Act.
4. On July 20 , 1965, and at all times thereafter , the Union was , and has been,
the exclusive bargaining representative of all employees in the aforesaid unit for
the purposes of collective bargaining.
5. By failing and refusing at all times on and after July 20, 1965, to bargain
with the Union as the exclusive bargaining representative of the employees in the
above-described appropriate unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act.
6 By inviting employees to bargain individually with it concerning conditions of
employment , and by engaging in discussions with employees concerning conditions
of their employment at a time when the Union had been designated as the exclusive
collective-bargaining representative of the employees in an appropriate unit, and
without according the Union the opportunity to participate , Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act.
7. The Respondent did not unlawfully interrogate employees concerning their
union activities and preference , threaten to reduce employees wages if they selected
the Union as their collective -bargaining representative , or promise wage increases
for the purpose of inducing employees to forgo collective representation through
the Union.
RECOMMENDED ORDER
Upon the , basis of the foregoing findings of fact and conclusions of law, and upon
the entire record of this proceeding, I recommend that American Paper & Supply
Company, its officers, agents , successors , and assigns , shall:
1. Cease and desist from: ,
(a) Refusing to bargain collectively with International Printing Pressmen and
Assistants ' Union of North America, AFL-CIO, as the exclusive bargaining repre-
sentative of the employees in the appropriate unit.
(b) Inviting employees to deal directly with it concerning their terms or condi-
tions of employment and unlawfully discussing with its employees their terms and
conditions of employment without according the Union the opportunity to partici-
pate in said discussions.
(c) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of the right to self-organization , to form labor organiza-
AMERICAN PAPER & SUPPLY Co. 1255
tions of their own choosing , to join or assist the International Printing Pressmen
and Assistants ' Union of North America, AFL-CIO, or any other labor organiza-
tion, to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities to
the extent that such rights may be affected by the provisions of Section 8(a)(3)
of the National Labor Relations Act, as amended.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with International Printing Pressmen
and Assistants ' Union of North America , AFL-CIO, as the exclusive bargaining
representative of the employees in the aforesaid appropriate unit, and if an under-
standing is reached , embody such understanding in a signed agreement.
(b) Post at its 410 West Seventh South, Salt Lake City , Utah, container manu-
facturing division plant, and at all other places where notices to employees are cus-
tomarily posted , copies of the attached notice marked "Appendix ."
22 Copies of
said notice, to be furnished by the Regional Director for Region 27, shall, after
being duly signed by a representative of the Respondent , be posted by the Respond-
ent immediately ' upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced , or covered by any other
material.
(c) Notify the Regional Directoi for Region 27, in writing , within 20 days from
the receipt of this Decision , what steps have been taken to comply herewith 23
IT IS FURTHER RECOMMENDED that on or before 20 days from the date of its receipt
of tnis Decision , Respondent notify the Regional Director that it will comply with
the foregoing recommendations , the Board issue an order requiring the Respondent
to take the action aforesaid.
22 In the event that, this Recommended Order Is adopted b, 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."
231n the event that this Recommended Order is adopted by the Board, this pros ision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith
APPENDIX A
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, upon request, bargain collectively and in good faith with the
International Printing Pressmen and Assistants' Union of North Ameiica,
AFL-CIO, as the exclusive bargaining representative of all employees in the
bargaining unit described below, with respect to rates of pay, hours of employ-
ment, and other conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The bargaining unit is.
All production and maintenance employees employed by American Paper
& Supply Company at its container-manufacturing division plant located
at 410 West Seventh South, Salt Lake City, Utah, excluding office clerical
employees, professional employees, guards, and supervisors as defined
in the Act, and all other employees.
WE WILL NOT invite our employees to bargain individually with us concern-
ing matters relating to the terms and conditions of employment, or in an
unlawful manner and without according International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, the opportunity to participate,
engage in discussions directly with our employees concerning their terms and
conditions of employment.
WE WILL NOT interfere with, restrain, or coerce our employees in the exer-
cise of their rights to self-organization, to form labor organizations to join or
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist the International Printing Pressmen and Assistants' Union of North
America, AFL-CIO, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
AMERICAN PAPER & SUPPLY COMPANY CONTAINER DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(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 directly with the Board's Regional Office, 609
Railway Exchange Building, 17th and Champa Streets, Denver, Colorado, Tele-
phone 297-3551.
APPENDIX B
The following corrections are hereby made in the transcript of this proceeding:
Page 54, line 5, change "her" to "his"; page 65, line 6, change "Hinckley" to
"Robertson"; page 88, line 10, change "to a raise" to "to get a raise"; page 91, line 10,
change "Phillips" to "O'Connor"; page 91, line 24, change "Phillips" to "O'Connor";
page 101, line 15, change "July 19" to "July 16"; and page 105, line 22, change
"July 19" to "July 16."
Ed's Foodland of Springfield , Inc. and Local 1459, Retail
Clerks International Association , AFL-CIO. Case 1-CA-5127.
June 24, 1966
DECISION AND ORDER
On May 9, 1966, Trial Examiner Morton D. Friedman issued his
Decision herein, finding that Respondent had engaged in and was
engaging in certain unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Decision
together with a supporting brief, and the General Counsel filed a
brief in support of the Decision.
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-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
159 NLRB No. 119.