Business Envelope Manufacturers of Tennessee, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1976

227 N.L.R.B. 280 (N.L.R.B. 1976)

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Business Envelope Manufacturers of Tennessee, Inc.
and Local 234, Graphic Arts International Union,
AFL-CIO. Cases 10-CA-11233 and 10-RC-
10261
December 15, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND
WALTHER
On April 2, 1976, Administrative Law Judge Robert
Cohn issued the attached Decision in this proceeding.
Thereafter, Respondent and the Party of Interest'
filed exceptions and supporting briefs, and the
Charging Party2 filed a brief in opposition to the
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record in the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found Respondent
violated Section 8(a)(1) and (2) by threatening its
employees and rendering support and assistance to
the Teamsters Union by, inter alia : coercively interro-
gating its employees; threatening its employees with
surveillance, loss of benefits, futility of bargaining,
and plant closure if its employees chose the Graphic
Arts Union as their collective-bargaining representa-
tive; promising certain benefits if the employees
chose the Teamsters as their collective-bargaining
representative; and rendering special privileges to the
Teamsters while denying similar privileges to the
Graphic Arts Union. In his remedy, the Administra-
tive Law Judge recommended that the election won
by the Teamsters be set aside, Respondent be
directed to bargain with the Graphic Arts Union, and
Respondent be directed to take certain other appro-
priate remedial actions designed to effectuate the
purposes of the Act.
No exceptions were filed to the findings of unfair
labor practices or to the recommendation setting
aside the election .3 However, Respondent and the
Teamsters did file exceptions to the recommended
bargaining order. For the reasons set forth below, we
find merit to these exceptions.
' Teamsters Local Union No. 519, Knoxville and Vicinity , affiliated with
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , hereafter referred to as the Teamsters.
2 Hereafter referred to as the Graphic Arts Union
3 Accordingly these findings are hereby adopted
227 NLRB No. 41
As set out more fully in the Administrative Law
Judge's Decision, the Teamsters was the incumbent
collective-bargaining representative of Respondent's
production and maintenance employees and was
party to a then current collective-bargaining agree-
ment with Respondent expiring on March 30, 1975.
In late 1974, officials of the Teamsters met with
Respondent and, in a prenegotiation discussion,
informed Respondent that the Teamsters intended to
seek substantial wage increases during the forthcom-
ing contract negotiations. The Teamsters and Re-
spondent met several more times for prenegotiation
discussions, and on February 17, 1975,4 the negotia-
tions for a new collective-bargaining agreement were
formally opened. Meanwhile, on or about February
10, the Graphic Arts Union began its organization
campaign, and during the next several days two
organization meetings were conducted. On February
17, the Graphic Arts Union notified Respondent by
letter of its organization campaign. By February 21,
the Graphic Arts Union had obtained authorization
cards from a majority of the employees in the unit
and on that date filed a petition for an election which
raised a real question concerning representation.
Thereafter, the Respondent, the Teamsters, and the
Graphic Arts Union signed a Stipulation for Certifi-
cation Upon Consent Election Agreement, and on
April 2 a secret ballot election was conducted in
which the Teamsters received a majority of the
ballots cast. The Graphic Arts Union then filed the
objections to the election and the unfair labor
practice charges that are the subject of this proceed-
ing.
As found by the Administrative Law Judge, subse-
quent to the advent of the organization campaign by
the Graphic Arts Union, Respondent engaged in
egregious and coercive conduct which was destruc-
tive of the employees' Section 7 rights and that was
designed to render unlawful assistance and support to
the Teamsters in violation of Section 8(a)(1) and (2)
of the Act. To remedy this unlawful conduct, the
Administrative Law Judge, inter alia, citing The
Brescome Distributors Corporation, 179 NLRB 787
(1969), as authority, recommended that Respondent
be directed to recognize and bargain with the
Graphic Arts Union. Member Penello is of the
opinion that under the facts of this case the issuance
of a bargaining order is inappropriate and that the
Administrative Law Judge's reliance upon Brescome,
supra, is misplaced.5 In Brescome, supra, the Board
found the respondent had assisted in the initial
All dates hereafter refer to 1975 , unless otherwise indicated.
5 The Administrative Law Judge also cited Lawrence Rigging, Inc, 202
NLRB 1094 (1973), and Overland Distribution Center; Inc, 194 NLRB 727
(1971), as authority for the bargaining order . However , neither of those cases
involved an incumbent union.
BUSINESS ENVELOPE MANUFACTURERS 281
organization of the incumbent, an independent
association , and through its supervisors had contin-
ued to influence the ' association in its collective-
bargaining relationship. We further found the respon-
dent's supervisors were officers and members of the
association, at least one supervisor had been an active
member of the bargaining committee, and with the
exception of 1 year the dealings between the parties
were never incorporated into a written agreement.
Accordingly, in that situation where the employer
had actively participated in the organization of the
incumbent collective-bargaining agent and where the
employer's unlawful conduct had interfered with the
election and dissipated the petitioner's majority
status, we found a bargaining order was justified.
In the present case, on the other hand, there is no
evidence that establishes that the incumbent, the
Teamsters, was organized or controlled by Respon-
dent. Further, there is no evidence that the Teamsters
sought the assistance of Respondent or actively
participated in the campaign of unlawful conduct .6
Accordingly, in these circumstances, where the Board
is faced with competing claims of representation from
an incumbent collective-bargaining agent and also
from another labor organization with a legitimate
card majority, Member Penello fords that a bargain-
ing order is not warranted. Although the card
majority is sufficient -to -raise a real question concern-
ing representation, it is insufficient to establish
majority status in the presence of a legitimate
incumbent collective-bargaining agent.? Surely if
Respondent had recognized the Graphic Arts Union
after it had established a card majority and raised a
question concerning representation, the Board would
have found that relationship to be unlawful and
would have directed Respondent to cease recognizing
that union until properly certified by the Board. The
Board cannot, therefore, issue a bargaining order
establishing a collective-bargaining relationship,
where elsewhere it would have found that relationship
to be unlawful.
Member Penello recognizes that Respondent's
unlawful conduct has dissipated the support for the
Graphic Arts Union and has created a situation
which may prevent the immediate direction of a fair
and impartial election . Nevertheless, in the face of the
incumbent Teamsters claim of a continuing majority
status, he is of the view that the Graphic Arts Union's
claim' to a card majority is insufficient and that only a
Board-conducted election can effectively insure that
the employees are given -a free choice concerning the
selection of a collective-bargaining representative.
Member Penello disagrees with Member Jenkins'
observation that our disposition of the case leaves
Respondent free to repeat its unlawful conduct and
to further distort and subvert the free choice of its
employees. In this Decision and Order, the Board has
specifically ordered Respondent to cease and desist
from engaging in such activities and to take certain
appropriate remedial action'set forth in the Order. In
the face of such an Order from this Board, an agency
of the Federal Government, Member Penello does
not presume, as does the dissent, that Respondent
will continue to act unlawfully. ' -
Member Penello does agree, however, with Mem-
ber - Jenkins' observation that our rules are not
designed for the situation presented in this case. He
also agrees that the Graphic Arts Union has an
equitable claim to majority status based upon its card'
majority and the resulting presumption. However, in
a similar vein, he also fords that the Teamsters has an
equitable claim to majority status based upon- its
incumbency and the resulting presumption of its
continuing majority status. Faced with such a dilem-
ma, two conflicting presumptions of majority status,
he finds that the two presumptions, in effect,'cancel
each other and- that neither claim is sufficient to'
establish majority status. Accordingly, it is only with
the greatest reluctance that this Board postpones the
employees' determination as to a collective-bargain-
ing representative. However, under the facts of this
case, there is no other choice.
Perhaps the differences with Member Jenkins is
best explained by the manner in which Member
Jenkins defines the issue. Member Jenkins fords the
Board is- faced with the question which of two
nonoffending unions "has the superior claim to
majority status?" There is, however, an even more
basic question: Has either Union been able, in fact, to
establish a sufficient claim to majority status. As
indicated by the previous discussion, Member Penel-
lo finds neither Union has been able to establish such
a claim, and therefore a bargaining order is inappro-
priate-
Member Walther agrees with Member Penello I, a
remedial bargaining order should not be imposed by
the Board in this case. While Member Jenkins'
opinion presents some important considerations in
favor of a contrary result, in Member Walther's view,
there are countervailing policies which are of more
importance.
6 Member Penello finds the Administrative Law Judge's comments record as a whole the General Counsel's administrative investigation and
regarding the dormancy of the Teamsters to be mere speculation unsubstan- determination that the Teamsters was a bona fide incumbent with a
tiated by the record . He notes that the record fails to support the allegations legitimate interest in representing the unit employees.
by the Graphic Arts Union that the Teamsters was organized and controlled r Western Commercial Transport, Inc., 201 NLRB 17,21 (1973), enfd. 487
by Respondent. In reaching this finding , he has considered as part of the F.2d 332 (C.A. 5,1973).
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Essentially, Member Walther does not find any
evidence that either Union has demonstrated clear
majority support by the employees, for the reasons set
forth in his concurring opinion in U and I, Inc., 227
NLRB 1 (1976). Because of the presence of the
Charging Party and also because of the Respondent's
numerous violations of Section 8(a)(2), Member
Walther finds it is clearly inappropriate to grant a
bargaining order running to the Teamsters. On the
other hand, he finds the Charging Party's authoriza-
tion cards are an unsatisfactory measure of the
employees' desire in this case absent full and com-
plete investigation of the effect of the incumbent's
status and the extent to which employees may have
indicated support contemporaneously of both unions.
Member Walther is of the view that the Supreme
Court has specifically charged this Agency in its
landmark decision that "effectuating ascertainable
employee free choice is as important a goal as
determining employer misbehavior."8 In view of the
potential conflicting claims in this case, more is
required to ascertain employee free choice than is
present in this record.
Member Walther is of the view that on the facts of
this case, if Respondent had recognized the Charging
Party solely on the basis of its cards, without having
thoroughly investigated the Teamsters claim to ma-
jority support, then Respondent would have had to
demonstrate the clear validity of the Charging Party's
majority support. See U & I, Inc., supra.
Accordingly, for the reasons stated above, we adopt
the Adminstrative Law Judge's Decision except for
the portion of that Decision recommending that a
bargaining order be issued. Further, we shall remand
the representation case to the Regional Director for
the purpose of conducting a new election at such time
that he deems the circumstances permit a free choice
concerning a bargaining representative.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent
Business Envelope Manufacturers of Tennessee, Inc.,
Clinton, Tennessee, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concern-
ing their union membership and activities.
(b) Threatening employees that it would engage in
surveillance of their union activities.
(c) Threatening employees that it would close or
move its plant if Local 234, Graphic Arts Internation-
al Union , AFL-CIO, were chosen as the employees'
collective -bargaining representative.
(d) Threatening its employees that it would be futile
to choose the above -named Union as the employees'
collective -bargaining representative since it would be
impossible to bargain with it.
(e) Threatening its employees that their hours of
work would be diminished if they chose the above-
named union as their collective-bargaining represen-
tative.
(f) Threatening its employees that it would get
"rough and tough" with them and limit their freedom
of movement in the plant if they chose the above-
named Union as their collective -bargaining represen-
tative.
(g) Promising employees that it would rescind a 32-
hour workweek notice and return to a 40-hour
workweek if the employees joined the Teamsters
Union.
(h) Promising its employees a retroactive wage
increase and paid holidays if they chose the Team-
sters Union as their collective-bargaining representa-
tive.
(i) Offering to pay reinstatement fees of employees
to the Teamsters Union if the employees wished to
rejoin the Teamsters Union.
(j) Permitting the Teamsters Union to hold meet-
ings of employees on Respondent's property during
employees ' worktime to discuss contract proposals or
negotiations between the Respondent and the Team-
sters Union.
(k) Soliciting employees to circulate among other
employees and encourage them to support the
Teamsters Union.
(1) Allowing or permitting an employee representa-
tive or union steward of the Teamsters Union to
solicit Teamsters authorization cards among the
employees of the Respondent while at the same time
denying a request of the Graphic Arts Union to
solicit signatures on authorization cards during
worktime in the plant.
(m) Recognizing or contracting with Teamsters
Local Union No. 519 , Knoxville and Vicinity, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
as the representative of any of its employees in the
appropriate unit , for the purpose of dealing with said
organization concerning grievances, labor disputes,
wages , rates of pay, hours of employment , or other
conditions of employment, unless and until Team-
sters Local Union No . 519, Knoxville and Vicinity,
affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
America , shall have been certified as such representa-
8 NLRB v Gissel Packing Co, Inc, 395 U.S 575, 614 (1969).
- BUSINESS ENVELOPE MANUFACTURERS 283
tive pursuant to a Board-conducted election among
Respondent's employees. -However, nothing herein
shall require Respondent to vary or abandon any
wages, hours, seniority, or other substantive features
of its relationship with said employees which have
been established in any agreement between Respon-
dent and Teamsters Local Union No. 519, Knoxville
and Vicinity, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, -or to prejudice the assertion by
such employees of any rights they may have acquired
under such an agreement.
(n) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the purpose of the Act:
(a) Post at its Clinton, Tennessee, plant, copies of
the attached notice marked-"Appendix."9 Copies of
said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by an
authorized representative of Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to 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. - -
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed as to any alleged violations not found to
have been sustained herein.
IT IS FURTHER ORDERED that Case 10-RC-10261 be
and it hereby is remanded to the Regional Director
for Region 10' for the purposes of conducting a new
election at such time as he deems that circumstances
permit a free choice of a bargaining representative.
MEMBER JENKINS, concurring and dissenting:
I agree with my colleagues' conclusion that Re-
spondent violated Section 8(a)(1) and (2) of the Act.
However, I disagree with their conclusion that a
bargaining order is inappropriate in this case.
Respondent has engaged in "an egregious cam-
paign of threats" which "ranged the spectrum of
9 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1O ALJD, sec. 11, par. 4
11 My majority colleagues view the situation before us as one involving
the balancing of offsetting presumptions and, in so doing, they have fallen
conduct violative of Section 8(a)(2) and (1) of the Act,
making a free choice in the- election of April 2
impossible ." 10 Because of the nature and extent of
Respondent's unlawful conduct, I am of the opinion
that there is no possibility of conducting a fair
election at Respondent's facility in the foreseeable
future. -
The question- we are left with is: Between the two
nonoffending Unions, which has the superior claim to
majority status? For the following reasons, I am
convinced that question must be resolved in favor of
the Petitioner-Charging Party. As of the filing of the
petition and immediately prior to Respondent's
commencement of unlawful activity, the Petitioner-
Charging Party enjoyed an overwhelming majority
based upon authorization cards. While I am cogni-
zant of the frailties of authorization cards as evidence
of majority status generally, in this case they repre-
sent the only evidence of the uncoerced opinion of
the employees. Moreover, they represent the most
recent expression of choice prior to the advent of
Respondent's violative conduct.
My colleagues hold that this card majority is
insufficient to establish majority status in the pres-
ence of the "legitimate incumbent" status of the
Intervenor-Party of Interest. While it is true that a
presumption of continuing majority status is usually
accorded a legitimate incumbent-, that presumption is
no more than its name implies. Here, I am convinced
the substantial card majority is sufficient to rebut the
normal presumption.11 Moreover, the record shows
that the Teamsters had been the employees' represen-
tative for only a single contract's duration. Its status
was neither supported by certification nor any other
objective evidence of majority. The April 2 election
clearly cannot be viewed as evidence of continuing
majority since those results were severely tainted by
Respondent's massive unfair labor practices.
Thus, in this case, a fair election being impossible, I
conclude that on the basis of objective evidence the
card majority is sufficient to rebut the Teamsters
presumption of continuing -majority status and, that
the bargaining order recommended by the Adminis-
trative Law Judge is imperative. As the Supreme
Court said in N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575, 614 (1969), "If the Board finds that the
possibility of erasing the effects of past practices and
of ensuring a fair election (or a fair rerun) by the use
of traditional remedies, though present, is slight and
into serious error. Here, it is only the claim of the incumbent Teamsters
Umon which rests upon a presumption . The Graphic Arts Union's claim of
majonty status has been proven by the record evidence before us which
establishes that an overwhelming majority of the unit employees have
authorized the Graphic Arts,Umon to serve as their bargaining representa-
tive. A presumption of majority status cannot be given the same weight as
actual proof of majority status and when , as here, the proof rebuts the
presumption, the latter can no longer be said to have any continuing vitality.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that employee sentiment once expressed through
cards would, on balance, be better protected by a
bargaining order, then such an order should issue
°'. While the facts of that case were different, I
find the logic applicable.
The majority's argument by analogy to the situa-
tion in which an employer recognizes a union on the
basis of a card majority in the face of the presence of
a legitimate incumbent is-misplaced. The availability
of the election process for resolving the question
concerning representation is what makes such recog-
nition violative. But the fact is that here the question
concerning representation raised by the authorization
cards cannot be resolved by a fair election, because of
the Respondent's grave misconduct. Indeed, if the
majority's view is correct, then Respondent is free to
repeat its violations in support of the Union which a
majority of the employees have rejected, and free to
distort and subvert the succeeding election(s) so that
that Union wins again and again. My colleagues thus
permit Respondent to frustrate indefinitely the desire
of a majority of the employees to change their
representative.
Finally, the equities of the case dictate a bargaining
order in favor of the Petitioner-Charging Party. To
postpone the election for the period of time necessary
to conduct a fair election defeats for far too long the
employees' expressed, desires to effect a change in
collective-bargaining representatives. In addition, to
order a second election rewards Respondent's fla-
grant unlawful activity and, as noted above, provides
Respondent with another opportunity to effect the
outcome it desires. Finally, while we are vainly
caught in our own rules which were never designed
for this situation, Respondent has successfully elimi-
nated its obligation to bargain with any union
representing its employees.
For the foregoing reasons, I am compelled to give
effect to the clear desire of the employees to be
represented by the Petitioner-Charging Party and
would adopt the recommended Decision and Order
of the Administrative Law Judge in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize or contract with Team-
sters Local Union No. 519, Knoxville' and Vicini-
ty, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America (hereinafter Teamsters Union), as
the representative of our employees for the
purpose of dealing with said organization con-
cerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of
employment unless and -until Teamsters Union
shall have been certified as such representative
pursuant to a Board-conducted election among
our employees. However, this does not mean that
we are required to vary or abandon any existing
term or condition of employment.
WE WILL NOT coercively interrogate our em-
ployees concerning their union membership and
activity.
WE WILL NOT threaten employees that we will
engage in surveillance of their union activities.
WE WILL NOT threaten employees that we will
close or move the plant if Local 234, Graphic Arts
International - Union, AFL-CIO (hereinafter
Graphic Arts Union), is chosen as the employees'
collective-bargaining representative.
WE WILL NOT -threaten our employees that it
would be futile to choose Graphic Arts Union as
their collective-bargaining representative since it
would be impossible to bargain with it.
WE WILL NOT threaten employees that their
hours of work will be cut if they choose the
Graphic Arts Union as their collective-bargaining
representative.
WE WILL NOT threaten our employees that we
will get "rough and tough" with them and limit
their freedom of movement in the plant if they
choose the Graphic Arts Union as their collective-
bargaining representative.
WE WILL NOT promise employees that we will
cancel the 32-hour workweek notice and return to
a 40-hour workweek if they join the Teamsters
Union.
WE WILL NOT offer to pay the reinstatement fees
of employees to the Teamsters Union if the
employees wish to rejoin the Teamsters Union.
WE WILL NOT permit the Teamsters Union to
hold meetings of the employees on our property
during employees' worktime to discuss contract
proposals or negotiations.
WE WILL NOT solicit employees to circulate
among other employees and encourage them to
support the Teamsters Union.
WE WILL NOT allow or permit an employee
representative or union steward of the Teamsters
Union to solicit Teamsters authorization cards
among the employees while at the same time
denying a request of the Graphic Arts Union to
solicit signatures on authorization cards during
worktime in the plant.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the
National Labor Relations Act, as amended.
BUSINESS ENVELOPE MANUFACTURERS 285
BUSINESS ENVELOPE
MANUFACTURERS OF
TENNESSEE, INC.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge : This consoli-
dated proceeding was heard at Clinton , Tennessee, on
December 2-4, 1975,1 pursuant to due notice . The com-
plaint in Case 10-CA-11233 was issued September 26,
based on a charge against Respondent filed April 30 by the
Charging Party . Case 10-RC-10261 was consolidated with
the complaint proceeding by Order of the Regional
Director for Region 10 of the National Labor Relations
Board, dated October 2 , in which a hearing was ordered
based on the Petitioner's timely objections to an-.election
conducted by the Board on April 2, among certain
employees of the Respondent -Employer.
The complaint alleges , in essence , that commencing in
February, Respondent, through its agents and supervisors,
illegally rendered support and assistance to the Intervenor-
Party of Interest by engaging in acts and conduct more
fully detailed herein . By its duly filed answer, Respondent
admitted the jurisdictional allegations of the complaint and
the status ofthe Petitioner-Charging Party and Intervenor-
Party of Interest as labor, organizations within the meaning
of the Act ; however, it generally denied the commission of
any unfair labor practices.
At the close of the hearing , oral argument was waived;
however, helpful , posthearing briefs were filed by counsel
for the General Counsel , counsel for Respondent-Employ-
er, and by counsel for the Petitioner-Charging Party, which
have been duly considered.
Upon the entire record in the case, including arguments
of counsel and -my observation of the demeanor of the
witnesses,2 I make the following:
FINDINGS AND CONCLUSIONS 3
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a multiplant company engaged in the
manufacture, sale, and distribution of business envelopes.
It maintains facilities in the States of New York , California,
and Tennessee, the Clinton, Tennessee, operation being the
only one involved in this proceeding . Respondent -com-
menced operations in Clinton several years prior to the
events discussed herein , and in 1972 voluntarily recognized
the Teamsters4 as the collective -bargaining representative
i All dates hereinafter refer to the calendar year 1975, unless otherwise
indicated.
2 Cf. Bishop and Malco,-Inc., dfb/a Walker's, 159 NLRB 1159, 1161
(1966).
3 There is no issue as to the Board's jurisdiction , or of the status of the
Unions as labor organizations . As previously noted, the complaint alleges
sufficient facts, which are admitted by answer, upon which I may, and do
hereby, find that Respondent is an employer engaged in commerce within
the meaning of Sec. 2 (6) and (7) of the Act, and that the Unions , and each of
them, are labor organizations within the, meaning of See. 2(5) of the Act.
4 Teamsters Local Union No. 519, Knoxville and Vicinity , affiliated with
of its production and maintenance employees .5 A collec-
tive-bargaining agreement was entered into between the
parties on May 1,1972; for a term of 3 years .6
On or about - February 10,_ an organizational campaign
was commenced among Respondent's production and
maintenance employees by Local 234, Graphic Arts Inter-
national Union, AFL-CIO (herein sometimes called
Graphic Arts or Petitioner-Charging Party). According to
the undenied and credited testimony of James A. Rhyne,
president of the Local, two meetings were conducted at a
local motel in Clinton on February 11 and 15 , in further-
ance of the campaign .7 On February 17, Rhyne dispatched
a letter to Respondent- advising of the organizational
campaign and , naming certain of the employees as consti-
tuting a volunteer "in-plant committee ." 8 It is the conten-
tion of the General Counsel and of the Charging Party that,
commencing at about this time , Respondent engaged in a
vigorous and extensive countercampaign against ,the Charg-
ing Party and in favor of having the employees continue to
be represented by the Teamsters . This campaign allegedly
took the form of promises of benefit to the employees if
they retained the Teamsters as their collective-bargaining
representative, and threats of dire economic consequences
if they changed their adherence to the Charging Party.
Respondent is also alleged to have met and entered into
negotiations with the Teamsters during the pendency of a
real question concerning representation of Respondent's
employees occasioned by the filing of a petition by Graphic
Arts on February 21, in Case -10-RC- 10261 . We come now
to a consideration of the , evidence adduced in support of
these contentions..
B. Alleged Interrogation, Threats, and Promises of
Benefit
1. By Bernie -Muchnick
Muchnick, plant manager of the Clinton facility, ac-
knowledged that he called employee Marilyn Hansard into
his office shortly after he received the letter from the
Charging Party advising of the organizational campaign
and of, the employees who constituted the "in-plant
committee," hereinabove ^ referred to.9 Muchnick stated
that he "thought highly" of Hansard and called her in to
discuss the union campaign as "friend to friend." He
testified that he asked Hansard if-she was aware that the
Company was having negotiations with the incumbent
union and advised her that, when-two unions clash, things
can become "awfully sticky and drag out, and he-felt that
the employees could be hurt." He also advised that he was
somewhat disappointed that Hansard would be involved in
something like that.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
5 At the time of the NLRB-conducted election at this plant in April, 1975,
there were, according to the report of the Regional Director (G.C. Exh. 2(a)),
approximately 135 employees in the unit.
6 See C.P. Exh. 102.
7 Clinton is a relatively small community located approximately 34 miles
north of the city of Knoxville, Tennessee
8 G.C. Exh. 6.
9 Hansard was one of the employees named as being on the committee.
286 DECISIONS OF NATIONAL LABOR ' -RELATIONS BOARD
Hansard testified that she had two meetings with Much-
nick in his office: the first taking place on or about
February 18 or 19, and the second on or about March 7,
shortly before the meeting of the employees with the
Teamsters Union.10 At the first meeting, Muchnick asked
her "what she was getting herself into," and she replied that
she wanted to see if something more could be done for the
employees. At the second meeting, according to Hansard's
testimony, Muchnick told her that evidently the previous
conversation had not "done any good," and he questioned
again whether she knew what she was getting herself into.
When she answered affirmatively, Muchnick went on to
advise her of his knowledge of the "Printer's Union" which
he acquired from relatives in New York who were out of a
job because of this union. He went on to state that he knew
his boss I'-better than Hansard did, and that he could get
"rough and tough" on the employees in the plant by, for
example, cutting down on their "roaming around the plant
and talking at their machines"; he further advised that
Kristel had made a very generous offer to the Teamsters in
negotiations, and that the employees were going to get 50
cents additional per hour and that the employees "might
just as well be satisfied with that and take it because no
other union could do any better." 12
Muchnick denied making the "rough and tough" remark,
and that Kristel would not tolerate the Graphic Arts Union.
He also denied telling Hansard that employees' activities
would be restricted if the Charging Party was voted for in
the election. However, Hansard impressed me favorably as
a witness, and I cannot believe that she fabricated the
remarks attributed to Muchnick. Accordingly, I credit her
testimony and find that, by such remarks, Respondent,
through its agent and supervisor, Bernie Muclinick, interro-
gated an employee concerning her union activities and
threatened reprisals if the employees did not lend their
adherence to the Teamsters Union in the competition
between the two unions extant at the plant at that time.
During the last week in March, Muchnick called employ-
ee Richard Johnson into his office- and asked the latter to
circulate around his department and talk to his fellow
employees about the Teamsters - that "we were envelope
makers not printers, and did not need the [Graphic Arts]
union." Muchnick further stated that if the Graphic Arts
Union did go in, his boss would "probably shut the plant
down and move it." 13
I find the foregoing request and threat to constitute illegal
support and assistance for the Teamsters Union, in viola-
tion of Section 8(a)(2) and (1) of the Act.
Woodard Rains, a former employee of the Company,
testified that, around the middle of March, Muchnick
called him into his office and told him that he (Muchnick)
would prefer the Teamsters to the Graphic Arts Union. He
further testified that Muchnick threatened to "close the
plant down - that he wouldn't have Graphic Arts in
there." Muchnick denied speaking to Woodard Rams
about union activities at any time. The record shows that
to The record establishes that the Teamsters conducted a meeting among
Respondent's employees in the shipping room at approximately 4 p.m. on
March 7 '
11 Ira Kristel, president of the Respondent.
12 Testimony of Hansard.
13 Credited testimony of Johnson. Muchnick did not refer specifically in
the threat attributed to Muchnick by Rains came only after
a leading question by counsel for the General Counsel.
Furthermore, on cross-examination, Rains appeared rather
uncertain as to the alleged threat. Under all circumstances,
including Rains' demeanor on the witness stand, I am not
convinced that Muchnick uttered the threat on this
occasion, and therefore find that this allegation of the
complaint has not been sustained by the evidence.
During the month of March, an employee of Respondent
named Ann Martin, a machine operator and shop steward
for the Teamsters Union at that time, circulated about the
plant speaking on behalf of that Union and soliciting
Teamsters authorization cards. During the time she was
absent from her machine, Respondent replaced her with
another employee since the machine was not fully automat-
ic and required attention by an operator. The evidence
further shows that some of the supervisors of the various
departments she visited were aware of her activities. For
example, Richard Johnson testified that while she was
soliciting in the cutting department, Supervisor Delaney
was present.14 Marilyn Hansard testified that when Martin
came into her department and talked to her about the
Teamsters Union, Hansard's supervisor was in the depart-
ment. Hansard further testified that she observed Martin
talking to other employees during worktime in other areas
of the plant. Employee Shirley Kanipes observed Martin in
her department (the jigger department), and saw Martin
first go to Supervisor Pete Gati when Martin first came into
the department and then proceed to solicit the machine
operators there on behalf of the Teamsters Union.15
Employee Betty Sue Clabough testified that she observed
Ann Martin in the comet department (Martin was a
machine operator in the webb departm_ ent). Clabough
further testified - that Martin talked to her about the
Teamsters' Union during working hours and solicited
Clabough to sign an authorization card for the Teamsters.
Clabough's supervisor, C6chran,16 was present in the
department when Martin was- there. Clabough further
testified that she was an employee who was called upon to
work at Martin's machine 1 day while Martin was going
through the plant engaging in the activities above de-
scribed.
Martin was not called as a witness at the hearing.
Muchnick testified that Respondent permitted the Team-
sters shop steward to go around the plant for the purpose of
asking the employees if they had any questions and if they
wanted to make an appointment, with either himself or
Plant Coordinator Al Smith, for clarification of any issues.
Muchnick denied that Martin advised - him that she was
attempting to obtain signatures on Teamsters authorization
cards, and he -further denied that he was aware that Martin
was attempting- to solicit. Such denial is not credited.
Indeed, the evidence shows that following her observation
of Martin's activities described above, Marilyn Hansard
went into the office of Muchnick and requested "equal
time" to perform the same functions on behalf of the
his testimony to a conversation with Johnson but generally denied telling any
employee that the Company would close if the Graphic Arts Union were to
come in . I do not credit this denial.
14 Delaney did not testify at the heanng.
15 Gati did not testify at the hearing.
16 Cochran did not testify at the hearing.
BUSINESS ENVELOPE MANUFACTURERS 287
Graphic Arts Union that Martin did for the Teamsters,
Union. Muchnick acknowledged that Hansard made such a
request, but testified that -he did not "really understand"
what she meant by equal time. She replied that "If you have
the Teamsters here why can't we have the GAIU here," to
which Muchnick responded that, the matter was "in, the
hands of the lawyers.- .
Based on all of the foregoing, I am convinced and
therefore find that the activities of Martin were well known
to the agents of Respondent and were condoned (if not
encouraged) by Respondent. Under the circumstances, -I
find that such conduct constituted illegal support and
assistance to the Teamsters Union, in violation of Section
8(aX2) and (1) of the Act.
2. By Plant Coordinator Allen Smith
Allen Smith, an admitted supervisor, is known as the
plant coordinator;. his primary responsibility is with respect
to the departments (jigger, comet, and darkroom) on the
second floor of the building. He admitted to holding several
meetings with employees in these departments in February
or March in response to individual questions which had
been asked of him by the employees. He testified that he
had no prepared text, and made no opening statement other
than to tell the employees that there would be no recrimina-
tion for union activities of any kind in the plant, and that no
one had to remain if they chose not to. He thea-threw:the
meetings open for questions. - -
Effie Mae DeStefano, an employee at that time in the
jigger department, testified that Smith told the employees
that the owner of the Company (Ira Kristel) would not have
the Graphic Arts Union in the plant - "that he could not
live with them"; that if the employees voted for the
Teamsters; they would receive a 50-cent-per-hour raise
"then and there." Smith further stated, according " to
DeStefano's testimony, that Kristel -would close the plant
down and move it and that all of the employees would be
out of a job. She further testified that the question of union
dues was raised, and that Smith stated that if any of the
employees wished to rejoin the Teamsters Union but did
not have the necessary money for a reinstatement fee,
Smith stated that he would "personally take $25 out of his
pocket andpay it for them." 17
David Wells, an employee of the Company in the comet
department, stated that Smith spoke to the employees in
early March. Smith stated that he had known Ira Kristel-for
a long while and had-been to school with him, and it was his
opinion that, if the employees voted for the Graphic Arts
Union, Knstel would shut the plant and move it somewhere
else. Wells also affirmed that Smith said that, if employees
would rejoin the Teamsters and needed money for a
reinstatement fee, he (Smith) would pay the initiation fee
out of his own pocket.
Linda Bowling, an employee in the jigger department,
also affirmed Smith's statement that he knew Kristel
personally and he knew that Kristel "could not live with"
the Graphic Arts Union; that Smith-further stated that, if
the Graphic Arts Union got in, the Company already had a
plant located in :either North Carolina or South Carolina to
which they would move. Bowling further affirmed that
employee Shirley Kanipes asked Smith the amount of the
fee to get back into the Teamsters Union, to which Smith
responded that he really did not know but that it would
probably be around $25, and that he would pay it out of his
own pocket to any employee who needed it. Bowling
further -testified that Smith mentioned a notice which had
been posted on the plant bulletin board on March 4, which
notice advised all employees that "Because of extremely
poor sales in our business envelope area, the Company is
herewith forced to reduce B.E. departments from a 40 hour
to a 32 hour workweek." 18 , Smith stated that if all
employees voted for the Teamsters, the Company would go
back to a 40-hour workweek.
Shirley Kanipes, an employee in the jigger department,
affirmed that Smith held a meeting in the early part, of
March among employees, in that department and stated
that "If the Graphic Arts [Union] came in, Kristel would
not live with it and he would move the plant to North
Carolina within 3 months, and we would be out on, the
street, out of a job." She further affirmed that, referring to
the aforementioned notice (G.C. Exh. 15) posted on the
bulletin board, Smith said that if the-Teamsters came in the
work would go - back to 40 hours but if the Graphic Arts
Union got in,-it might go down to 3 days a week; Finally,
respecting the reinstatement fee, Smith stated that he would
pay that amount ($25) out of his own pocket if anyone
wanted to rejoin the Teamsters Union.
- Betty Sue Clabough, an employee in the comet depart-
ment, affirmed that Smith stated in a meeting around the
first of March that Kristel-could not "live with" the Graphic
Arts Union, and - there was the possibility of cutting the
workweek to 4 days and possibly 3 days per week if the
Graphic Arts Union was voted in. She further affirmed that
Smith promised to pay the initiation fee of the Teamsters
Union to anyone who wished to rejoin but did not have the
money. With respect to moving the plant, she testified that
Smith stated that the Company had a place picked out in
North Carolina "all ready and waiting," and that they
might move if the Graphic Arts Union was voted in.
Smith testified that on the -issue of plant removal, he
-explained that to the best of his knowledge - emphasizing
that he was not a lawyer - he doubted if the plant could,be
moved during union negotiations; however, he stated that it
was owned by an individual, and he="could do with his
company as, he pleased, when he pleased." He denied,
however, telling the group- that the Company would be
moved if they voted for one union rather than the other -
that they should vote for the Union of their choice. He
stated that he,, told the employees that $6 per hour, (which
the `Graphic Arts Union was assertedly seeking) was an
impractical wage figure in the envelope industry and
doubted that Kristel could pay that kind of wage and stay
in business. With respect to the union dues issue, hestated
that someone asked the question whether an employee- who
wished to rejoin the Teamsters Union would have to pay an
initiation fee again., He responded that he did not know, but
that "if this was going to keep somebody, from rejoining a
17 DStefano-emphasized that she distinctly recalled this remark because 1 See G.C. Exh. 15.
It was in response to a question from herself
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union of their choice . . . [he] would take care of that for
her." Smith denied that there was any discussion concern-
ing the working hours of the employees in the plant during
these meetings but admitted that General Counsel's Exhibit
15 was posted in the plant on or about March 4. He averred
that the reason for the posting was because the Company
was having very poor sales, but that the short workweek
was never placed into effect because the Company was told
by the Teamsters Union that it was a violation of the
contract for the Company to reduce the workweek since the
contract guaranteed a 40-hour workweek.
After a consideration of all of the testimony as to what
occurred respecting the meetings held by Plant Coordinator
Smith with the employees in the three aforementioned
departments, I am convinced and therefore find that such
remarks contained the following threats and promises of
benefit all of which constituted violations of Section 8(a)(2)
and (1) of the Act: (1) the threats to move the plant, with
the resulting loss of jobs to the employees, if they favored
the Charging Party; (2) the promise of a pay raise if they
favored the Teamsters Union; (3) the promise to pay the
reinstatement fee on behalf of any employees who needed it
in order to rejoin the Teamsters Union; and (4) the threat to
cut back the workweek if the employees joined or retained
their adherence to the Charging Party (but to maintain or
restore the existing workweek if they favored the Team-
sters).19 -
John Lee Smith, an employee in the letterhead depart-
ment, credibly testified that he had a conversation with
Smith in the darkroom area during the last part of
February. In that conversation, Allen Smith told John Lee
Smith that if the Graphic Arts Union came in, it would put
a lot of people out of work. He stated that Respondent was
an independently owned company, and that they could
shut down and move the plant if the Graphic Arts Union
came in.20 I find the foregoing threat to constitute an
additional violation of Section 8(a)(2) and (1) of the Act.
3. By Night Foreman Osvaldo Aponte
Around the middle of February, Aponte asked employee
Woodard Rains if the latter was going to the meeting at the
Scottish Inns . Rains advised that he did not know anything
about it; whereupon, Aponte stated that he (Aponte)
rs There were no records or other documentary evidence adduced to
support the Respondent's defense that the threatened cut of hours was
caused by a slowdown in sales (and therefore production). It is true that an
employee Shirley Kampes testified that at the time the notice was put up
work was "a little slow." However, she also testified that it had been slow
before. In any event, it was the threat uttered by Smith which constitutes the
violation . There is nothing in the record to show that he ever advised the
employees that, as Respondent contends , the,notice was removed because it
was later learned by Muchnick that it constituted a violation of a provision in
the existing collective-bargammg agreement with the Teamsters which
guaranteed a 40-hour workweek to the employees.
20 Allen Smith denied that he had any ' conversation with John Lee Smith
in a darkroom with respect to union matters. He recalled that after some of
the group meetings, several people came to see him in his office and he
remembers John Lee Smith as being in his office; however, he did not recall
whether the latter was alone or with other people. He denied telling John Lee
Smith that the advent of the Charging Party would result in people being put
out of work. Such denial is not credited.
21 Testimony of Rains. Aponte acknowledged that he was aware - by
virtue of seeing some pamphlets in the plant - of a meeting at the Scottish
Inn for the Graphic Arts Union However, he denied asking Rains anything
"might be up that way sometime that night." 21 I find that
the foregoing statement of Aponte constitutes a threat of
surveillance of, union activities, in violation of Section
8(a)(1) of the Act.
On or about March 3 or 4, Aponte approached employee
Walter Duncan at his machine, following a union meeting
on or about March 2. Aponte asked Duncan what the
employees were asking for - more money or more
holidays. Duncan replied that "we were in no position to do
any bargaining at that time.1122- I find the foregoing
statement of Aponte to constitute unlawful interrogation
concerning employees' union activities, in violation of
Section 8(a)(l) of the Act.
4. By Traffic Manager Thomas Fitzpatrick
On or about March 5, Fitzpatrick, an admitted supervisor
in the shipping department, told employee Kenneth Lee
Phillips that if the employees voted in the Teamsters Union,
they would get a 50-cent-per-hour raise and a paid holiday
the first year, and a 15-cent-per-hour raise and a paid
holiday for both the second and third year of the contract.
Fitzpatrick requested that Phillips pass this information to
the remainder of the employees, and further advised that if
they did not vote the Teamsters in, "they" would shut the
plant down.23 Fitzpatrick was not called as a witness, and
his failure to testify is unexplained on the record. Under
these circumstances , it is not only warranted to credit the
uncontradicted testimony of Phillips, but also to infer that
had Fitzpatrick been called as a witness , his testimony
would have been adverse to the interests of Respondent 24 I
find the foregoing promise and, threat to constitute illegal
support and assistance to the Teamsters Union, in violation
of Section 8(aX2) and (1) of the Act 25
In the same conversation, Fitzpatrick told Phillips the
only reason the notice concerning the 32-hour workweek
(hereinabove referred to) was posted was "because they
were made, and [he] said that if they voted the Teamsters
in, they would take the 32-hour week off and make-it a 40-
hour workweek.26
About the middle of March, Fitzpatrick spoke to employ-
ee. Jerry Lee Day in the shipping department of the plant.
Fitzpatrick inquired whether Day had heard about the raise
that the employees were supposed to get: to wit, a 50-cent-
about the meeting, and, indeed, denied discussing the Union with any
employee.
The, credibility resolution on this aspect of the case has been exceedingly
difficult. It may very well be that' Rams held a bias against the Company
because he was discharged in April; on the other hand, Aponte was not
impressive as a witness . Under all circumstances, I am unable to believe that
Rains fabricated the conversation ; and I therefore credit his testimony over
Aponte's denial.
22 Testimony of Duncan . Aponte denied speaking to Walter Duncan
about the Union. This testimony is not credited.
23 Testimony of Phillips.
24 N.L.RB. v. M. J. Prrolli & Sons, Inc., 80 LRRM 3170,68 LC par. 12,
843, (C.A. 1, 1972), enfg.194 NLRB 241, 246 (1971), and cases cited therein.
25 The last phrase of Fitzpatrick's statement is admittedly ambiguous
since he did not specify who "they" were. However, in context, it seems
reasonable to infer that "they" referred to the management of Respondent
and not the Teamsters Union.
26 Credited testimony of Phillips. I find the foregoing statement of
Fitzpatrick to constitute an additional promise of benefit to the employees if
the latter , supported the Teamsters Union in violation of Sec. 8(aX2) and (I)
of the Act.
BUSINESS ENVELOPE MANUFACTURERS 289
per-hour raise and a holiday the first year, and a 15-cent-
per-hour raise and a holiday for both the second and third
year. Fitzpatrick advised, however, that this was condi-
tioned upon- the Teamsters- Union retaining representation
rights in the plant. Day inquired of Fitzpatrick what would
happen if the Teamsters did not prevail, to which the latter
responded, "The company - would fight the union, the
Graphic Arts, he said if they could not beat the union they
would close the plant and move it. He did mention moving
it to either North or South Carolina. >27 I find the foregoing
promise of benefit if the employees favored the Teamsters
Union, and threat of reprisal if they did not, to constitute
an additional violation of Section 8(a)(2) and (1) of the Act.
5. By Ira Kristel
Kristel, president of Respondent, maintains his principal
office in New York. He testified that he came to Clinton in
the latter part of March and spoke to about five or six
groups of employees for about 15 to 20 minutes each. He
spoke extemporaneously, and made essentially the same
remarks to all the groups, and then opened the floor for
questions.
Kristel testified that, in his opening remarks, he advised
the employees that he was "not antiunion, that he had been
unionized for many years in New York and that he could
live with many unions ... however, the demands of the
Lithographers were so unrealistic that economically the
company could not survive." He went on to point out that
the Company was competing with other envelope manufac-
turers and not newspapers.28 Kristel pointed out that there
formerly were approximately 13 newspapers in New York
City and now there were only three, and that the reason was
that the Unions had effectively put them out of business. In
making this statement he admittedly made particular
reference, to the Charging Party.
Kristel .stated that in every meeting someone asked about
the issue of.plant removaL He testified that he told the
employees he had no intention of moving the plant but that,
on the other hand, the demands of the Charging Party were
so unrealistic that he did not think the Company could not
economically survive; that there was no law that said he
could not move, but that he had no intentions of doing so;
however, he also had no intention of going broke.29
Kristel admitted telling the employees that they would
get a 50-cent-per-hour wage increase if the Teamsters were
elected, but if the Charging Party were elected, bargaining
would'' commence from scratch and the 50-cent increase
would not apply. I find the foregoing promise of benefit to
constitute illegal support and assistance to- the Teamsters
Union, in violation of Section 8(a)(2) and (1) of the Act.
Later that day, Kristel asked Betty Sue Clabough to come
with him into the Webb department office. No one else was
present. Kristel inquired why she was involved with the
Union - what she wanted. Clabough advised that she
27 Credited testimony of Day.
28 The literature distributed by the Charging Party in the campaign
referred to the wages received by its members who worked for the Knoxville
News Sentinel . That member received $636 per hour whereas the wage
earner at the Respondent's plant received $2.40 per hour.
29 Several employees , witnesses for the General Counsel , testified that
Kristel threatened to close the plant down and/or move if they voted in the
Charging Party . See, e .g., testimony of Walter Duncan and Effie Mae
wanted more money for what she was doing. Kristel
testified that he was interested in fording out whether there
were other things important to the employees aside from
economic considerations. When Clabough advised him as
aforesaid, he said, "Okay, at least I understand where we
stand." 30
I find the foregoing interrogation, which took place in the
sanctum of a supervisor's office, without any legitimate
purpose or assurances against recrimination , to constitute
interference with employee rights guaranteed in Section 7
of the Act, in violation of Section 8(ax l) of the Act.
6. The negotiations between the Respondent and
the Teamsters Union
As previously set forth, the collective-bargaining agree-
ment between the Respondent and the Teamsters ran from
May 1, 1972, through April 30, 1975. The record reflects
that on December 6, 1974, the following letter was sent
from George R. Clapp, secretary-treasurer of the Teamsters
Union to Bernie Muchnick, plant manager of Respondent:
Dear Mr. Muchnick:
This will confirm the conversation in your office on
December 4, 1974 between -the undersigned, Mr.
Hubert L. Payne of Local 519, and yourself, and the
several telephone conversations we had during the
month of November in which we discussed the very dire
need of your employees receiving a substantial wage
increase in the forthcoming contract negotiations.
These conversations, of course, are premature, in so far
as contract negotiations are concerned, since the
present agreement does not expire until April 30,1975.
However, it is our feeling -that this information should
be relayed to Mr. Ira Kristel so that he can be prepared
for the contract proposal which will be forthcoming.
Mr. Muchnick, it is our hope that negotiations can
be completed early so that the new contract and wages
can go into effect immediately without the need for
retroactivity. Since the previous contract was negotiated
under adverse conditions everyone expects a much
better contract with a substantial wage increase this
time.
For the reasons mentioned above we respectfully
request that you relay this information to Mr. Kristel so
that he will be prepared to sit down and negotiate in
earnest when he comes into Knoxville.
The events which occurred following the receipt of the
foregoing letter are somewhat vague and indefinite in the
record. Muchnick testified that he had several telephone
conversations with representatives of the Teamsters some-
time in January and February, and he "thought" that the
DeStefano. On the other hand, Linda Bowling testified that Kristel did not
threaten to move the plant at that meeting. Under all circumstances , I am not
convinced that there is substantial evidence to find that Knstel threatened to
close or move the plant in his speeches to the employees in March.
30 Kristel acknowledged that he called in Clabough because be under-
stood that she and Marilyn Hansard were very strong with the Charging
Party, but Marilyn Hansard was not at work that day.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president of the Teamsters Local came -to visit him once on
union negotiations . However, there -was no exchange of
written proposals by either party to the other during this
period.31
On February 17, an official notice of . reopening was
dispatched by the Teamsters secretary-treasurer to
Muchnick as follows:
.Dear Mr. Muchnick:
This will officially advise you and your Company
that Teamsters Local Union No. 519 desires to open the
collective bargaining agreement between your company
and this Local Union for the purpose of making certain
changes and modifications in accordance with Article
39 of the existing agreement.
We will appreciate you advising the undersigned of a-
convenient date to meet for the purpose of discussing
the forthcoming negotiations.
Following this notice, there were further telephone
discussions between Muchnick and the representatives of
the Teamsters, and a meeting was arranged with Kristel
present on or about March 1 at the Teamsters Hall in
Clinton . It was at this meeting that the wage increases and
paid holidays hereinabove referred to were agreed upon.
Following that meeting , the Teamsters requested and were
granted a meeting with employees at the Company's plant
to be held on March 7 at 4 o 'clock p .m. (which was during
some of the employees ' worktime) for the purpose of
discussing contract negotiations (G.C. Exh . 14). I find such
conduct on the part of the Company to constitute addition-
al unlawful aid and assistance to the Teamsters in violation
of Section 8(ax2)-and (1) of the Act 32
On March 24 a-notice was posted ow the Respondent's
bulletin boards respecting the status of the Company's
negotiations with the Teamsters , as follows:
FROM : IRA B . KRISTEL, PRESIDENT
TO: ALL ELIGIBLE UNION EMPLOYEES
There seems to be some confusion among you regarding
our union negotiations with the Teamsters that started
back last November , 1974. Let me clear this up.
Should the Teamsters win the election on April 2, my
offer stands firm and has been approved in the presence
of the Teamsters Negotiating Committee . Major items
approved as follows:
1. Wages - A three year contract-50¢ first year, 15e
second year , l5¢ third year
- While the new contract would start on 5/ l/75, I have
given my word as President to make the first year
increase (500 per hour) retroactive for the week starting
March 17, 1975.
31 No representative of the Teamsters Union testified at the hearing,
although its secretary-treasurer was present throughout However, this
statement should not be construed to mean that the burden of proof switched
from the General Counsel to Respondent . See, e.g., H. Koch & Sons, 220
NLRB 1103 ( 1975).
2. The company will pay the full medical insurance-
program regardless if an individual does not put in 40
hours . Furthermore , the incentive bonus of 54 per hour
.for people who -put in 40 consecutive hours per week
still stands. -
3. One additional Holiday will be added to each year
of the contract.
I will be down on Monday, 3/31/75, and will go
through the plant to answer any questions to help clear
up any misunderstandings.
As previously indicated, a petition for an election was
filed by the Charging ' Party with the Board on February 21.
A notice of representation hearing on the aforesaid petition
was issued on February 26 with copies served on all parties
on that date . It is well settled that , in these circumstances, a
real question concerning representation was raised to the
extent that it was ' wrongful and unlawful for the Respon-
dent to continue and complete negotiations with the
Teamsters subsequent to the filing of such petition. Such
conduct clearly constituted unwarranted and illegal assis-
tance and support to the Teamsters Union , in violation of
Section 8(aX2) and (1) of the Act.33
H. THE REMEDY
Having found that Respondent engaged-in unfair labor
practices in violation of Section 8(a)(1) and (2) of the Act, I
shall recommend that the Respondent be directed to cease
and desist -therefrom, and to take certain affirmative action
designed to effectuate the purposes of the Act. A major
issue in the case is whether a bargaining order in favor of
the Charging Party is appropriate in the circumstances.
Respondent vigorously argues that such an order would not
be appropriate in this case where there are "two bona fide
labor organizations, both of which are seeking recognition
with regard to the same unit of employees." 34 It is further
argued that this is especially so where one of the two vying
unions is an incumbent, which enjoys a presumption of
majority representation through the life of the contract
(Respondent's brief, citing Barrington Plaza and Tragniew,
Inc., 185 NLRB 962, 963 (1970). Finally, Respondent
argues, a bargaining order in favor of the Charging Party
would be punitive rather than remedial in nature since it
would dictate the employees' choice of representation.
Counsel for the General Counsel did not seek a bargain-
ing order as part of the remedy in this case on the grounds
that. "the evidence was insufficient to establish that the
Teamsters actively sought the Respondent's assistance or
actively participated in conduct sufficiently unlawful to
negate it's status as a bona fide incumbent union with a
legitimate interest in representing the employees."35 How-
ever, it is noted that no authority is cited by counsel for the
32 See, e.g., Hermet, Inc., 222 NLRB 29 (1976).
33 Hermes, Inc., supra and cases cited.
34 Respondent's brief.
35 G.C. brief.
BUSINESS ENVELOPE MANUFACTURERS 291
General Counsel in support of his position, and have not
discovered any through independent research.36
The Charging Party vigorously contends that a bargain-
ing order is the only fair andeffective remedy in view of the
flagrant and extensive unfair labor practices engaged in-by
Respondent- following the filing of its petition 37
After a consideration of all the evidence in the record,
including arguments of counsel, I am convinced, and
therefore ford, that a _ bargaining order in favor of the
Charging Party is the only fair and effective remedy which
can be applied within the framework of the statute to the
facts in this case. Thus, there is, presented here a situation
where an employer, assertedly faced with competing claims
of two labor organizations, immediately embarks upon an
egregious campaign of threats of economic retribution
should his employees favor the Union which he opposes,
and promises of benefit to them should they adhere to the
Union which he favors. "Such conduct, as set forth herein-
above, ranged the spectrum of conduct violative of Section
8(a)(2) and (1) of the Act, making a free choice in the
election of April 2 impossible.38
The record herein establishes that, as of the time of the
filing of its petition, the Charging Party had an uncoerced
majority of the employees in the unit 39 Thus, on February
21, it had signed authorization cards from 94 employees4o
in a unit of approximately 135 employees 41
The language of the Board in Brescome, supra, justifying a
bargaining order is singularly appropriate to the factual
situation in the instant case:
An employer, faced with a competing representation
claim, quite properly should be protected from a
union's refusal-to-bargain charge, even where that
union is able to demonstrate a card majority, in a
situation where he evidences his neutrality by maintain-
ing the status quo while the question concerning
representation is being determined by the Board. But it
is foreign to the basic concept of the rule to invoke it as
justification for a refusal to bargain in a situation where,
as here, the employer, instead of remaining neutral,
takes sides, and engages in unfair labor practices aimed
at assisting and supporting the union he favors, and
utilizes this as a means of dissipating the majority of the
rival union to which he is opposed. In this situation, to
excuse the refusal to bargain and deny the remedial
relief of a bargaining order could serve only to exalt the
36 Respondent submitted concomitantly with the filing of its brief a
motion to reopen hearing for the purpose of placing into evidence a ruling of
the General Counsel in which the latter declined to issue a complaint under
Sec. 8(a)(5) of the Act, in this case. Such motion is dewed as lacking in merit
since such ruling by the General Counsel would be irrelevant to the issues in
the case, which are, of course, framed by the complaint which is issued by the
General Counsel.
To the extent such motion is bottomed on the so-called Freedom of
Information Act, there is no showing that Respondent has complied with the
proper procedures before the General Counsel and/or the Board which are
conditions precedent to securing such information.
37 Prior to and at the hearing, the Charging Party filed a motion to amend
complaint and notice of intent to request bargaining order (G.C. Exh. 1(k)).
The motion to amend the complaint to include allegations bearing upon the
Respondent's obligation to bargain collectively with the Charging Party was
denied on the ground that final authority with respect to the issuance of
complaints is with the General Counsel, and the General Counsel objected to
the Charging Party's motion in this case. However, the Charging Party was
-letter of the rule whilestultifying its purpose, and would
leave the victimized union without- a truly effective
remedy.
Since the. recent decision of the Supreme Court in the
Gissel case, the legal touchstone for a bargaining order
is whether the employer has engaged in unfair labor
practices of such a character as to preclude a fair
election and to permit a fording that a majority
established by -cards 'is more reliable tha[n ] an election
as the indicator of employee desires. In -this case the
Trial Examiner found that the nature and effect of
Respondent's unlawful demonstration of its favoritism
to the Association, coupled with its dire prediction of
adverse consequences, which might be expected if the
Union should be selected and attempt to bargain with
Respondent, was such as to prevent the possibility.of a
fair election. , We agree, and upon the basis of the
Union's demonstrated card majority ford that Respon-,
dent violated Section 8(a)(5).
3.. We also further find upon a consideration of the
entire record, and in agreement with the Trial Examin-
er, that, apart from the violation of Section 8(aX5), an
order directing Respondent to bargain with the Union,
upon request, is necessary to remedy the effects of its
other unfair labor practices. The record establishes that
the Union had a majority when the Respondent began
its course of unfair labor practices directed at destroy-
ing this support. The subsequent diminution of support,
as revealed by the Union's loss in the election, can only
be attributed to Respondent's unlawful conduct. There-
fore, we shall order Respondent to bargain, upon
request, with the Union not only to remedy its violation
of Section 8(a)(5) but also its violations of Section
8(a)(1) of the Act. [footnotes omitted.]
I have also taken into consideration in resolving this issue
the history of Respondent's relationship with the Teamsters
prior to the statutory 6-month limitation period, for the
assistance that it provides in evaluating the events which
occurred within that period (Brescome, supra). I note that
the Teamsters was voluntarily recognized by the Respon-
dent, and there is a dearth of evidence in the record
respecting activities or involvement of the Teamsters in the
affairs of the employees from 1972 for approximately 2-1/2
years until the events in this case. One witness (Jerry Lee
Day) testified that he worked for the Company for almost a
allowed to introduce evidence relating to its claim of majority status at the
time of its filing of the petition, so that the record would be complete before
the Board who has primary responsibility with respect to the appropriateness
of a remedy in the matter. (See, e.g., 7-tidee Products, Inc., 196 NLRB 158).
38 See The Brescome Distributors Corporation, 179 NLRB 787,788 (1969);
Lawrence Rigging, Inc., 202 NLRB 1094 (1973); Overland Distribution
Centers, 194 NLRB 727 (1971).
39 The appropriate unit, agreed upon by the parties and approved by the
Regional Director in Case 10-RC- 10261, is:
All production and maintenance employees employed by the Respondent at
its Clinton, Tennessee, facility, but excluding all office clerical employees,
professional employees, guards and supervisors as defined in the Act.
40 There were 98 cards received in evidence, but 4 were dated subsequent
to February 21.
41 This the number of eligible voters at the election , according to the
Regional Director's report (G.C. Exh. 2(a)).
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year before he knew that the employees were represented
by a union. Moreover, Muchnick testified that, until the
events in this case, he did not know that Ann Martin was a
steward for the Teamsters Union. Such dormancy on the
part of the incumbent union may well explain the interest of
the employees in seeking another labor organization to
represent them.
In view of the flagrant and pervasive nature of the unfair
labor practices, I shall recommend a broad cease-and-desist
order. Highland House Nursing Center, Inc., 222 NLRB 134
(1976); Lawrence Rigging Inc., supra.
The Objections to the Election
The evidence, as set forth hereinabove, occurring subse-
quent to the filing of the petition and prior to the election,
provides ample support for a finding that the Charging
Party's objections should be sustained. Accordingly, I
conclude and find that the election conducted by the Board
on April 2 should be set aside. However, in view of my
finding that an order to bargain in favor of the Charging
Party should issue, I will not, of course, direct that another
election be held. Rather, I willrecommend that the petition
in Case 10-RC-10261 be dismissed , unless it is withdrawn.
CONCLUSIONS OF LAW
1. Business Envelope Manufacturers ofTennessee, Inc.,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 234, Graphic Arts International Union, AFL-
CIO, and Teamsters Local Union No. 519, Knoxville and
Vicinity, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and each of them, are labor organizations within
the meaning of Section 2(5) of the Act.
3. By the acts and conduct of its agents and supervisors
described above, Respondent -has interfered with the
administration of a labor organization and contributed
assistance and support to it, in violation of Section 8(a)(2)
of the Act.
4. By the foregoing, and by engaging in other acts and
conduct described above, Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]