Arizona Plastic Extrusion Co.

National Labor Relations Board - Board Decisions

Sep 9, 1963

144 N.L.R.B. 427 (N.L.R.B. 1963)

ARIZONA PLASTIC EXTRUSION COMPANY 427
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF
SOLO CUP COMPANY
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 Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT threaten employees of Solo Cup Company with bodily injury
danger or other reprisals , if they fail to support our strike.
WE WILL NOT intimidate employees of Solo Cup Company because they
fail to support our strike.
WE WILL NOT in any like or related manner restrain or coerce employees of
Solo Cup Company in the exercise of the rights guaranteed by Section 7 of
the Act.
INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE
AND PAPER WORKERS, AFL-CIO,
Labor Organization.
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.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore , Maryland , Telephone No. 752-8460,
Extension 2100 , if they have any question concerning this notice or compliance
with its provisions.
Arizona Plastic Extrusion Company and International Brother-
hood of Pulp , Sulphite and Paper Mill Workers , AFL-CIO.
Case No. 98-CA-911. September 9, 1963
DECISION AND ORDER
On June 7,1963, Trial Examiner C. W. Whittemore issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report with a supporting brief, and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record in this case,
including the Intermediate Report, exceptions, and briefs, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
144 NLRB No. 50.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an original charge filed on January 21, 1963, and an amended charge
filed on March 18, 1963 , both by the above-named labor organization , the General
Counsel of the National Labor Relations Board on March 19 , 1963, issued his
complaint and notice of hearing thereon . On March 23, 1963, the above-named
Respondent filed its answer . The complaint alleges and the answer denies that the
Respondent has engaged in unfair labor practices in violation of Section 8(a)(1)
and (3 ) of the National Labor Relations Act, as amended . Pursuant to notice a
hearing was held in Phoenix , Arizona, on April 16 and 17, 1963, before Trial Ex-
aminer C . W. Whittemore.
At the hearing General Counsel and the Respondent were represented by counsel,
and were afforded full opportunity to present evidence pertinent to the issues, to
argue orally, and to file briefs. Briefs have been received from General Counsel
and the Respondent.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing, is made by the following findings, conclusions,
and recommendations.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Arizona Plastic Extrusion Co. is an Arizona corporation , with office and principal
place of business in Phoenix , Arizona, where it is engaged in the production and
sale of plastic pipe.
During the calendar year 1962 it purchased and received in interstate commerce
goods and materials valued at more than $50,000 directly from outside the State of
Arizona. During the same period it sold and shipped in interstate commerce, di-
rectly to States other than Arizona , products valued at more than $50,000.
The eomnlaint alleges, the answer admits, and it is here found: that the Respondent
is engaged in commerce within the meaning of the Act.
If. THE CHARGING UNION
International Brotherhood of Pulp , Sulphite & Paper Mill Workers , AFL-CIO,
is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
About 36 hours after employees T. O. Allen, Jr., and D. F. Knappenberger on
January 17, 1963, began passing out at one of the Respondent's two plants mem-
bership application cards for the above-named labor organization , both were sum-
marily and without prior notice discharged by T. W. Kerr, co-owner and plant
manager of the Respondent. As a witness Kerr candidly admitted that he was
"opposed" to labor unions, had "opposed" an attempt made among his employees
to organize another union in 1960, and that of some 50 employees working for
him in January 1963, only about a half dozen of them had been on the payroll at
the time of the previous attempt in self-organization.
The chief issue raised by the complaint is, of course , the sudden dismissal of
Allen and Knappenberger , General Counsel contending that the discharges were
unlawful and for the purpose of discouraging union membership and the Respond-
ent claiming that their jobs were "discontinued."
B. Facts relevant to the discharge issue
The following facts, based upon credible testimony , tend to support the conclusion
of unlawful discrimination sought by General Counsel:
ARIZONA PLASTIC EXTRUSION COMPANY 429
(1) Employee Allen began distributing union cards among his fellow workers
early Thursday morning, January 17, on the third shift. (Allen was regularly
assigned to the day, or first, shift. On this date, as was frequently the case, extra
work brought him to the plant to work the last 4 hours of the night shift and con-
tinue for the 8 hours of his day shift, a total of 12 hours.)
(2) It is undisputed that shortly before going to work on the third shift Allen
told his foreman, Lloyd Gallagher, of his intent to distribute the cards.'
(3) Allen continued to distribute cards to employees on his own day shift, and
employee Knappenberger, supplied with cards by Allen, distributed some before
going on his shift, the second, on the same date, January 17.
(4) As he came to work that afternoon Knappenberger told the first-shift fore-
man, Aufdenkamp, that he had left a present for him in his truck. An hour or so
later (Aufdenkamp's duties covered not only the first shift but part of the second)
the foreman came to the employee and said he had been surprised at the present-
he had expected to find some cards. Knappenberger asked what he meant. Aufden-
kamp replied that he meant cards that had to be filled out-union cards.2
(5) It is undisputed that a few months before his discharge Knappenberger had
been told by Aufdenkamp that if he heard of anyone "trying to get the union in,
he would throw a wrench in the cogs, like he done before."
(6) It is likewise undisputed that during the day of January 17 Aufdenkamp
told employee Wakefield that he thought that if the Union "was in there" Kerr
would have to lay some of the "people" off, and said that "some of the men had
been laid off . . . the last time that the union had tried to organize at Arizona
Plastics."
(7) In the midafternoon of Friday, January 18, while Wakefield and Allen were
working on a disabled machine, Foreman Aufdenkamp broached the subject of union
organization, told them he was against it and explained why. He declared that
Kerr would no longer "stock pile," as he had in the past when work was slow,
and "if the Union was brought in Kerr would go to California and "get qualified
set-up men." (Both Allen and Wakefield did setup work on the machines part of
their time.) He declared that there also would be "lay offs," and said that he had
"cleared the deal" once before when the Union tried to get in and would do it again
"if he got the chance." 3
(8) Shortly after this incident Kerr, without previous notice or warning, dis-
missed both Allen and Knappenberger, the former as he was leaving his shift and
the latter as he was reporting for the second shift. Each was told that his job
was being eliminated and his services would no longer be required.
(9) Wakefield rode with Allen as they left the plant that day. Some distance
from the plant they met Knappenberger. They got out of the car and talked in a
group. Kerr and Finn; the company president, drove by. As a witness Kerr
admitted that he saw Wakefield on this occasion in discussion with the two discharged
employees.
(10) The next day, Saturday, Kerr called Wakefield into his office. In the
presence of Finn and Aufdenkamp, Kerr lectured the employee severely on "loyalty"
which he expected from him. He declared that he had kept "mediocre" men at work
who were loyal, made it plain that he disliked "two-faced" employees, and did not
want employees who were "smiling to his face and stabbing him in the back at the
same time." He told Wakefield that "if the shoe fit, wear it," and insisted that he
tell him whether he would be "loyal" or "two-faced" and "if the latter," there would
be a "parting of the way." Wakefield apparently convinced Kerr of his "loyalty,"
for the next working day he was promoted to the assistant foreman's job with a
pay raise 4
(11) On January 21, as noted, the original charge was filed concerning the two
discharges. It was received by the Respondent on January 23. Upon receipt of
I As a witness Gallagher was not questioned about this incident of late January 16 or
early January 17. He did state, however, that he had been told by Allen on January 14
of his intent to organize and said that he had asked the employee "what union" he was
getting.
2 The employee's account of this incident is not contradicted.
3 The quotations are from Allen' s credible testimony The foreman admitted the occa-
sion and the fact that he had told the employees: "I will fight you tooth and toe nail "
* Kerr admitted the substance of Wakefield's testimony, from which the above quotations
are drawn. He explained this strange demand for loyalty as having occurred because he
had seen Wakefield with Allen and Knappenberger , shortly after he had "let" them "go,"
and because the following day employees in the plant had stopped talking as he approached
them, which had given him "a little bit of a queasy feeling"
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charge, according to his own testimony, Kerr asked "several" employees how
they felt about the Union and if they had signed union cards.
The foregoing having been established by credible and largely undisputed testi-
mony, it is clear that General Counsel has made out a strong prima facie case of
unlawful discharge.
C. Kerr's claims as to the discharges
Kerr not only denied that he had any knowledge of union activity in the plant
or of the participation in it of Allen and Knappenberger, but affirmatively contended
that the discharges had been made necessary because of reorganization of the entire
plant.
Circumstances admitted by Kerr himself deprive his claim of lack of knowledge
of merit or credibility. If, as he conceded, mere reorganization brought about the
discharges, then his berating Wakefield for simply talking with the two employees
lacks credible explanation . And his aggressive opposition to employees exercising
their statutory right to organize is candidly admitted by him.
Nor does his claim of "reorganization" bear scrutiny . In substance , he said that
earlier in January he had learned that Aufdenkamp , then foreman of the second
shift, probably would have to be hospitalized in a few weeks. At that time Kerr
himself had been acting as foreman of the first shift . According to him he decided
to put Aufdenkamp on the first shift, so that when he had to leave temporarily he,
himself, could take over as supervisor . A week or more before union organization
began he decided to put this "reorganization" into effect , appointing a new third-
shift foreman, transferring the third-shift foreman to the second shift, and Aufden-
kamp to the first. The shifting and transfers became effective January 14.
Kerr further claimed that since these foremen , as shifted , could take care of the
"set up" work, he no longer needed Allen as a setup man on the first shift or Knap-
penberger on the second. For this reason, he said , he dismissed the two.
While there is no doubt that both Allen and Knappenberger were capable of
doing, and did do, setup work, even Kerr's own testimony establishes that their chief
duties were to operate machines. When asked if Knappenberger ever operated a
machine or was "just a setup man," Kerr replied: "He operated a machine." Asked
if he operated a machine as often as Allen, Kerr replied, "Not a great deal of differ-
ence." And Kerr also admitted that setup work occupied only the early part of the
first shift, on which Allen worked.
Both Allen and Knappenberger were capable operators, both having received merit
increases. (Kerr stated flatly that all raises were based upon "merit entirely.")
New employees were hired just before the discharges and shortly thereafter. Kerr
admitted that some 20 job vacancies had occurred since January 18 and that since
that date he has had openings for jobs which both men were fully qualified to fill.
As a matter of fact Kerr did make Knappenberger an offer to return to work about
2 weeks after his discharge, but the employee did not accept the offer. (General
Counsel conceded at the hearing that the date of this offer, February 4, 1963, is the
appropriate cutoff date for backpay, if any, due Knappenberger.)
D. Conclusions
The Trial Examiner concludes and finds that there is no merit in the Respondent's
claim that Allen and Knappenberger were dismissed because of "reorganization."
Their positions remained, the machines continued to be operated . Others were trans-
ferred to or hired to fill their jobs.
It is therefore concluded and found that the real reason for the summary dis-
charges was Kerr's discovery, either in person or through one of the foremen, that
both Allen and Knappenberger were attempting to organize the employees , an effort
which both Kerr and Aufdenkamp conceded they opposed.
By discharging Allen and Knappenberger to discourage membership in a labor
organization , by Aufdenkamp's threats of economic reprisals , and by Kerr's inter-
rogation of employees as to whether or not they had signed union cards, the Re-
spondent has interfered with , coerced , and restrained employees in the exercise of
rights guaranteed by Section 7 of the Act.
W. 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 the 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.
ARIZONA PLASTIC EXTRUSION COMPANY
V. THE REMEDY
431
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent offer Allen immediate and full re-
instatement to his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges. Since it appears that Knappenberger
was offered but, in effect, declined an offer of reinstatement to his job as operator
on or about February 4, 1963, the Respondent will not be required to repeat the
offer. It will be recommended, however, that both Allen and Knappenberger be
made whole for any loss of earnings they may have suffered by reason of the un-
lawful discrimination against them, by payment to each of them of a sum of money
equal to that which he would have earned as wages, absent the discrimination against
him, from January 18, 1963, to February 4, 1963, in the case of Knappenberger,
and from January 18, 1963, to the date of offer of reinstatement in the case of Allen,
in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289. The backpay obligations of the Respondent shall include the payment of interest
at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing &
Heating Co., Inc., 138 NLRB 716.
In view of the serious and continued nature of the Respondent's unfair labor
practices, it will be recommended that it cease and desist from in any manner in-
fringing upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Pulp, Sulphite & Paper Mill Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating as to the tenure of employment of J. O. Allen, Jr., and
D. F. Knappenberger, to discourage membership in and activity on behalf of the
above-named labor organization, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that Arizona Plastic
Extrusion Co., its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with economic reprisals to discourage membership
in and activity on behalf of any labor organization.
(b) Interrogating employees as to their union membership or adherence in a
manner violative of Section 8 (a) (1) of the Act.
(c) Discouraging membership in and activity on behalf of International Brother-
hood of Pulp , Sulphite & Paper Mill Workers , AFL-CIO, or any other labor organiza-
tion , by discharging, laying off, or refusing to reinstate any of its employees or in
any other manner discriminating in regard to hire or tenure of employment, or any
term or condition of employment.
(d) In any other manner interfering with, restraining , or coercing employees in
the exercise of the right to self-organization , to form labor organizations, to join
or assist any labor organization , to bargain collectively through representatives of
their own choosing, and 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.
2. Take the following affirmative action, to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to J. O . Allen, Jr., to his former or
substantially equivalent position , without prejudice to his seniority or other rights
and privileges , and make him and D . F. Knappenberger whole for any loss of pay
they may have suffered by reason of the discrimination against them , in the manner
set forth in the section above entitled "The Remedy."
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll and other records necessary for the determina-
tion of the amount of backpay due and the right of reinstatement under terms de-
scribed herein.
(c) Post at its plant in Phoenix , Arizona, copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
the Twenty-eighth Region, shall, after being duly signed by the Respondent's duly
authorized representative, be posted immediately upon recept thereof and main-
tained for 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Twenty-eighth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps have been taken to comply herewith.6
5 In the event that this Recommended Order be adopted by the Board, the words "A Deci-
sion 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 be 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."
I In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the 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 Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten our employees with economic reprisals to discourage
membership in or activity on behalf of any labor organization.
WE WILL NOT interrogate employees regarding their union adherence in a
manner violative of Section 8 (a) (1) of the Act.
WE WILL NOT discourage membership in and activity on behalf of Inter-
national Brotherhood of Pulp, Sulphite & Paper Mill Workers, AFL-CIO, or
any other labor organization, by discharging, laying off, or refusing to reinstate
any employee, or in any other manner discriminating in regard to hire, tenure
of employment, or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named 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 pro-
tection, or to refrain from any or all such activities.
WE wILL offer J. O. Allen, Jr., immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him and D. F. Knappenberger whole for any
loss of pay suffered by them as the result of our discrimination against them.
ARIZONA PLASTIC ExTRUSION CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify Allen if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 1015
Tijeras Street NW., Albuquerque, New Mexico, Telephone No. 243-3536, if they
have any question concerning this notice or compliance with its provisions.