Cantainer Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1979

244 N.L.R.B. 318 (N.L.R.B. 1979)

DI)I('ISI()NS 01 N ATI()NAI IABOR REIATIONS BO()AR)
Container C'orporation of America and IA)cal 1048,
United Papermorker s International Union, AFI,-
C10 and Billy Young. Cases 9 CA 12013 and 9
CA 12111
August 17. 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(; ANI) MEMBHFRS JENKINS
AND) TRUESI)AI F
On October 13, 1978, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thorit' in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative L.aw Judge. It is the Board's established policy not to oserrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
11950). enid. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In sec. I11, A and B, of his Decision, the Administrative l.aw Judge refers
to employee Billy Young as the union steward, whereas the record clearly
shows that Young was the nion's vice president and another employee
served as steward.
2 The Administrative Law Judge recognized in his Decision in that "'the
use of an employer's bulletin board by a union for union purposes is not
generally a protected activity under the Act." Nevertheless, the Administra-
tive l.aw Judge found that the Union had a "statutory" right to post its
newsletter on the Employer's bulletin board. While we agree with the Ad-
ministrative Law Judge's conclusion that Respondent violated Sec. 8(aX I ) of
the Act by discriminatoril) removing the Union's newsletter from the bulle-
tin hoard and by threatening employee and Union Vice President Billy
Young with disciplinary action for any reposting of the newsletter, we do not
agree with his characterization of the Union's right to post the newsletter as
a "statutory" right It is well established that there is no statutory right of
employees or a union to use an employer's bulletin board. However. it is also
well established that when an employer permits. by formal rule or otherwise.
employees and a union to post personal and official union notices on its
bulletin boards, the employees' and union's right to use the bulletin board
receives the protection of the Act to the extent that the employer may not
remove notices. or discriminate against an employee who posts notices.
which meet the employer's rule or standard but which the employer finds
distasteful. See Group One Broadcasting Co., West, 222 NLRB 993 (1976):
Nugent Service Inc., 207 NI.RB 158 (19731: Tempco MJg. Co., Inc.. 177
NI RB 336 (1969): Challenge Cook Brothers of Ohio. In(-, 153 NLRB 92
(1965).
The Administrative Law Judge credited employee Young's testimony that.
on December 19, 1977, Respondent's management trainee and foreman. Jim
Grundy. stated to Young that he had visited one of Respondent's plants
where, when an employee filed a grievance for the first time. the grievance
was placed in a desk drawer and, the next time a grievance was filed by the
same employee, the employee was dismissed. Grund? denied having made
this statement to Young. but admitted having made the statement to two
ORDER
Pursuant to Section 10(c) of the National .abor
Relations Act, as amended. the National llahor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative l.aw Judge and hereby or-
ders that the Respondent. Container Corporation of
America, Louisville, Kentucky, its officers. agents,
successors. and assigns. shall take the action set forth
in the said recommended Order.
other management officials during a coffee break in the lunchroom utilized
b: Respondent's production employees. In light of his crediting of Young's
leslimony. we find it unnecessary to pass on the Administrative L.aw Judge's
finding in In. 7 of his Decision that even if Young had onl overheard (Grun-
dy making the statement to the other manugemcnt personnel, he nevertheless
would tind that GCrunds's statement consti ted a violatiin of Sec. 8(a)( I
I)'('ISION
SIAIIA N I )l-I Ill CASI.
H:IILtON S. BRAND)N, Administrative Law Judge: These
cases were tried in Louisville, Kentucky. on June 29. 1978.
'The charge in Case 9 CA 12013 was filed on D)ecember 9.
1977,1 by Local 1048, United Paperworkers International
Union, AFL-C'IO, herein called the Union, against Con-
tainer Corporation of America. herein called Respondent,
and the complaint based thereon issued on January 31,
1978. The charge in Case 9 CA 12111 was filed on January
13, 1978, by Billy Young, an individual. against Respon-
dent and a complaint based on such charge was issued on
February 28, 1978. An order consolidating the two cases for
hearing issued on April 6, 1978. The primary issues in the
consolidated cases are whether Respondent violated Sec-
tion 8(a)1 I) of the National Labor Relations Act, herein
called the Act, by (a) removing notices to employees posted
by the Union in Respondent's plant on a bulletin board
previously designated and routinel f used or the posting of
union notices to employees, (b) threatening an employee
with disciplinary action for any reposting of such notices,
(c) threatening to fire employees who filed more than one
grievance with the Union, and (d) threatening to take repri-
sals against employees because of their status as union offi-
cials.
ULpon the entire record. including my observation of the
demeanor of' the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent I
make the following:
FINDIN(iS OF FA(I
I. JRISD)I("IION
Respondent, a Delaware corporation, is engaged in the
manufacture of corrugated cartons at a plant in Louisville,
Kentucky. herein involved, where during the preceding 12
months it sold and shipped goods and materials valued in
excess of $50,000 directly to points located outside the
|All dates are in 1977 unless otherwise stated.
244 NLRB No. 53
318
(CONTAINEIR CORPORA IO)N OF AMERICA
(ornmon.ealth of Kentuck. Respondent admits, and I
find, that it is an emploer engaged in commerce within the
meaning of' Section 2(2). (6). and (7) of the Act.
I. 1111 LAB)R (tR(ANt/ZAI0)N INA()t.5 It)
The Charging Union in Case 9 ('A 12013 is alleged in
the complaints herein to be a labor organization within the
meaning of Section 2(5) of the Act. Respondent by answer
admits, and I tind, that the Uinion is a labor organization as
alleged.
itL. rtt11 tNFAIR ABOR PRA( rl-fi-S
A. The Removal[ of the nion Nori-es
The Union is the recognized collective-hargaining repre-
sentative of Respondent's production and maintenance em-
ployees at Respondent's Louisville. Kentucky, plant and
has been since 1968. The current collective-bargaining
agreement between the Union and Respondent is effective
from June 19, 1977. to June 19. 1980, and contains the
following provision pertinent to these proceedings and also
found in preceding collective-bargaining agreements be-
tween the parties:
ARTICLE XXVI-USE OF BULLETIN BOARDS
It is agreed that the Union shall be permitted to post
notices on the plant bulletin boards. provided such no-
tices are signed by the proper officers of the Union.
Such notices shall be limited to notices of official
Union business.
On December 5 the following letter captioned "Newslet-
ter," signed by John M. Striegel. president of the Union.
and dated November 28 was posted by Billy Young. a vice
president of the Union and chief steward at Respondent's
plant, on the plant bulletin board customarily used by the
Union to post notices to employees:
To: Container Corporation Employees
Brothers and Sisters:
Many of you have grievances that are being pro-
cessed through the grievance step. Recently a meeting
was held in my step. In my opinion the company was
merely going "thru the motions" and they had no in-
tentions whatsoever of trying to come to a settlement
on any' of the 4th step grievances. The attitude of the
company was so bad I referred the last two grievances
to Ken Harrell, step without discussing them.
From the moment Bill Hogue and Marvin Sturegon
entered the room there seemed to be complete chaos. It
seems Bill Hogue thinks the Union wants, in his word
"a blank check" and never wants to give anything in
return. As far as I know the only "check" the Union
employees want is the check that is earned by them for
each day's work that is performed in the plant. If Bill
Hogue had it his way you would not receive a check at
all. You would be forced to produce more and more
sq. footage untill [sic] you were the highest producing
plant in the country. For each record that you broke
oun would probabhl receive an extra hag of flour and a
sack ot beans tr our eftlots.
As president of' this I.ocal I have no intentions of'
allowing any management to treat :nion employees tn
such a disgraceful manner. The grieances that are
now in process will never he setteled sicl if we allow
management to treat us the way they are. I ask to he
treated fairly. to be bargained with faithfull and in
return for this I would expect the Union to give a ftir
das's work for a fair day's pay. Instead. Bill hogue sic
expects more and more sq. footage from the "chain
gang", with nothing in return. Is this a blank check????
T'he ogue referred to in the Union's letter is Respon-
dent's general manager of the Louisville plant while the
Sturgeon referred to is Respondent's Louisville plant man-
ager. I he grievance processing problem which was the sub-
ject of the letter was based upon a dispute between the
Union and Respondent regarding the sequence in which
grievances should be considered.
William Hogue, called as a witness by Respondent. testi-
fied that between 4:15 and 4:45 p.m. on December 5 alter
checking telephonically with Dick Juranek. industrial rela-
tions advisor in Respondent's Chicago office. he phoned
Union President Striegel. noted the existence of the Novem-
ber 28 "newsletter" on the Union's bulletin board in the
plant, and then proceeded to read to Striegel article XXVI
of the collective-bargaining agreement. Hogue then ex-
plained that he considered the posted letter to be "abso-
lutely insulting and inflammatory" and in iolation of the
agreement and that he would shortly have it taken down.
According to Hogue. Striegel replied that he would tile a
charge with the Board. I'he conversation ended and Hogue
had the "newsletter" removed from the bulletin board?
The following day the "newsletter" was reposted in the
same place by Billy Young around 6:25 a.m. Around 8:45
a.m. upon returning from break Young found that the
"newsletter" had again been removed. Shortly thereafter
Plant Manager Sturgeon came to Young and told him he
wanted to see Young and the union committee in the office
at 9 a.m. According to the testimony of Young. which is
credited in this regard. he went to the office at the ap-
pointed time with his committee composed of employees
Ernest Millsap. Harold Buckley. and Leon Smith. There
they met Hogue, Sturgeon, and personnel Director Giene
Redden. Hogue, still according to Young. described the
newsletter as slanderous and was "inflaming the people."
He then read article XXVI of the bargaining agreement to
the committee, said the letter was in violation of that provi-
sion and stated that if it was put on the board again Young
would be suspended or other action would be taken against
him. Young, who had admitted to Hogue that he was the
one who had posted the newsletter. testified that upon leav-
ing the office he asked Hogue for the newsletter which had
been removed that morning and which Hogue had in his
Striegel testified for the General Counsel substantially In accord with
Hogue regarding their phone con'ersaion although he stated Hogue told
him that the "notice" had already been removed Respondent admits that it
removed the newsletter on )ecember 5 and I find it immaterial whether it
was removed before or after Hogue talked to Striegel
319
I)f('ISIONS OF: NAII()NAL LABOR RELATIONS BOARI)
hand at the time. -logue's response was to tear up the news-
letter.
The foregoing testimony of Young is corroborated by Er-
nest Millsap and not seriously disputed by Hogue. Itow-
ever. Hogue added that Young had stated in the meeting
that he would continue to post the newsletter as many times
as it was taken down and it was at this point that Hogue
told Young that Hogue would be personally responsible for
"appropriate disciplinary action" if Young continued to
post the newsletter.
The record does not establish that the Union made any
further attempts to post the newsletter, or that any disci-
plinary action was ever imposed on Young or any other
employee as a result of the prior posting.
Striegel. who was not an employee of Respondent. did
prepare another notice to employees relative to Respon-
dent's removal of the first newsletter from the bulletin
board. He attempted to distribute this notice to employees
on Respondent's premises on December 8. but was asked
by Hogue to leave the premises. He did so. The General
Counsel does not allege that this incident constituted a vio-
lation of the Act by Respondent but relies upon it to show
some animus on the part of the Union in restricting the
Union's efforts to communicate to employees.
It is the General Counsel's contention that (I) the posting
of the "newsletter" on December 5 and 6 was an activity
protected by Section 8(a)(1) of the Act, and (2) the lan-
guage within the notice itself was not so opprobrious or
egregious as to cause it to lose the protection of the Act.
With regard to the first contention the General Counsel
argues, citing Nugent Service, Inc., 207 NLRB 158 (1973).
that the Union had a contractual right to post the newslet-
ter and Respondent could not discriminate against the
Union for posting a notice which fell within the contractual
language but which Respondent found distasteful. More-
over, even in the absence of a contractual provision the
General Counsel argues that Respondent could not lawfully
deprive the Union of its right to post its newsletter in view
of uncontradicted testimony of Young. which I here credit.
that employees were generally allowed to post general and
commercial notices unrelated to union matters on the
Union's bulletin board without policing by Respondent or
other restraints. In support of this proposition the General
Counsel cites Challenge Cook Brothers of Ohio, Inc., 153
NLRB 92 (1965), enfd. 374 F.2d 147 (6th Cir. 1967). where
the Board held that where the employer had made its bulle-
tin boards available to employees for posting of notices re-
lating to social and religious affairs. etc., it could not validly
discriminate against notices of union meetings which em-
ployees also posted.
With respect to his second contention the General Coun-
sel argues that even if Striegel's "newsletter" was inflamma-
tory or even insulting it was not thereby rendered unpro-
tected by the Act. The test for determining loss of statutory
protection according to the General Counsel is whether the
language of the newsletter was "offensive, defamatory, or
opporbrious," and not simply intemperate, inflammatory.
or insulting. Timpte, Inc., 233 NLRB 1218 (1977); Ben Pe-
kin Company, 181 NLRB 1025 (1970). enfd. 452 F.2d 205
(7th Cir. 1971 .
Respondent argues that the dispute over the Union's
posting of the newsletter involves a dispute concerning the
interpretation and application of the collective-bargaining
agreement. and thus, only a breach of contract issue is pre-
sented. Respondent. citing Jos. Schlitz Brewing ('omrpans',
175 NLRB 141 (1969). therefore urges that the dispute be
deferred to the grievance and arbitration machinery in the
collective-bargaining agreement with the Union.
On the merits of the dispute Respondent argues that the
Union had no statutory right to use bulletin boards on Re-
spondent's premises. In support of this proposition Respon-
dent cites Horizon Mobile Homes. Inc., 181 NLRB 687
(1970): Ngent Service, Inc., supra, Eastex m11'rpor1ated 215
NLRB 271 (1974). enfd. 550 F.2d 1980 (5th Cir. 1977).
modified on other grounds 556 F.2d 1280 (5th Cir. 1977),
affd. 434 U.S. 1045 (1978); Grotqu One Brouadca.ting Co.,
West, 222 NLRB 993 (1976). Therefore, in the absence of
any contractual agreement Respondent could prohibit the
Union's use of its bulletin boards and could remove any
union notices thereon without infringing upon any statu-
tory rights.
Respondent further contends that the collective-bargain-
ing agreement clearly limited the postings on the bulletin
board by the Union to "official union business" and that
the "official" notices contemplated by the agreement did
not encompass slanderous or inflammatory propaganda.
Moreover, Respondent points to uncontradicted testimony
of Hogue to the effect that in previous years, specifically.
1969. 1971, and 1973, Respondent had removed materials
from the Union's bulletin board which it considered slan-
derous, demeaning, or disruptive of plant discipline without
any grievances or complaints from the Union based upon
such removals. Hogue also referred in his testimony to a
"war of the bulletin boards" during the 1968-69 contrac-
tual negotiations with the Union when both the Union and
Respondent removed each other's posted notices to em-
ployees regarding the status of contract negotiations. This
"war" was stopped by agreement between Hogue and Ken
Harrell, president of the Union at the time, to the effect
they would cease and negotiating the contract on the bulle-
tin board. This agreement was thus clearly limited to no-
tices posted regarding contract negotiations.
Finally, Respondent argues that its removal of the
Union's newsletters was not based upon hostility toward
the Union but simply upon a reasonable attempt to enforce
the contract. Since there was no evidence that Respondent
had allowed its bulletin boards to be used for propaganda
which demeaned management or incited employees against
management Respondent reasons that there was no dispa-
rate treatment accorded the Union in removing the newslet-
ter. Respondent therefore concludes that its "moderate ac-
tion" in removing the newsletter and its warning that
repeated reposting would result in disciplinary' action was
well within the limits on permissible employer action delin-
eated by the Board and Courts. In this regard Respondent
cites, inter alia, Marvland Dr'dock Company v. N.LR.B..
183 F.2d 538 (4th Cir. 1950), where the Court held that the
Act does not mean that an employer must "supinely permit
his premises to be used for spreading insult and defamation
against his supervisory employees."
320
CONTAINER CORPORATION OF AMERICA
Conclusion
Turning first to the deferral issue. I reject Respondent's
argument based upon the principles stated in the Jos.
Schlit: Brewving Companv, supra, that deferral is warranted
in the instant case. The Schliit case is distinguishable for
there the issue involved an alleged violation of Section
8(a)(5) flowing from a unilateral act of the employer based
upon a "substantial claim of contractual privilege." The
Board found that the Employer's interpretation of an am-
biguous contract provision was "reasonable" and "not pa-
tently erroneous" and that the "arbitral interpretation of
the contract [would] resolve both the unfair labor practice
issue and the contract interpretation issue in a manner com-
patible with the purposes of the Act." Id at 142. It appears
that the Board still adheres to the policy of deferral of Sec-
tion 8(a)(5) cases involving contractual claims. Roy Robin-
son, Inc., d/b/a Roy Robinson Chevrolet, 228 NLRB 828
(1977). However, the instant case does not involve an
8(a)(5) violation. In General American Tran.sportation (Cor-
poration, 228 NLRB 808 (1977) the Board decided that it
would no longer defer cases involving alleged violations of
sections of the Act other than Section 8(a)(5). See also
Youngstown Sheet and Tube (oompaRv, 235 NL.RB 572
(1978). Accordingly. I find deferral on the basis of Schlitz
inappropriate.
I also reject Respondent's argument that only a "breach
of contract" issue is presented in this case as a result of its
removal of the Union's "newsletter." The pertinent contrac-
tual provision cited above is clear on its face leaving no
room for construction or interpretation beyond its plain
and unambiguous meaning. The only limitation imposed on
the Union's postings is that such postings involve "official
union business." Quite obviously a letter from the Union
president to its members who are employees of Respondent
concerning the processing of grievances of concern to them
is a matter of"official union business." Indeed. Respondent
does not seriously contend that the "newsletter" was not
union business. only that the "official union notices" con-
templated by the contract did not encompass slanderous or
inflammatory propaganda. Yet if such notices were not
contemplated by the contract Respondent offered no expla-
nation of why additional limiting language was not negoti-
ated into the agreement. While Respondent in negotiating
the contract may have insisted upon its prior approval of
union notices for posting it did not do so. Easter Incorpo-
rated, supra.
Respondent's claim that its past practice of removing
"slanderous" union notices justified its action in this matter
is without merit. Except for one occasion in 1968 when
Respondent and the Union mutually agreed to refrain from
posting material regarding the status of negotiations be-
tween the two there was no showing that the Union was
ever aware that its postings had been physically removed by
Respondent. Under these circumstances I find that neither
the literal language of the collective bargaining agreement
nor Respondent's alleged past practice thereunder provides
any legitimate basis for its actions herein considered in re-
moving the Union's newsletter.
It is true, as Respondent's brief points out, that the use of
an employer's bulletin board by a union for union purposes
is not generally protected activity under the Act. Eastex
Incorporated, supra: Nugent Service, Inc.. supra. However.
once an employer extends to a union the right to use the
bulletin board, either verbally. by practice. or contractually.
the union's right to use of the board takes on the protection
of the Act to the extent that the employer may not there-
after bar the union from posting notices where it allows
indiscriminate employee use of its bulletin boards for post-
ing matters of general concern unrelated to union activity.
See Nugent Service. Inc., supra Challenge (Cook Brothers /
Ohio, Inc., supra. As the Administrative l.aw Judge said
with Board approval in Nugent Service, Inc., supra at 161:
And finally. an employer who permits official union
notices and communications to its members to be
posted on its bulletin boards maN not thereafter dis-
criminate against an employee who posts a union no-
tice which meets the employer's rule or standard but
which the employer finds distasteful: while an em-
ployer whose practice it has been to permit employees
to post on its bulletin boards notices of various types
unrelated to their employment but who removes onl\
notices of union meetings violates Section 8(a)( I
thereby.
Here the uncontradicted evidence reflected in the testi-
mony of Billy Young. which I credit in this regard. shows
that employees have used Respondent's bulletin boatrds to
post notices regarding sales of personal items as well as
commercial notices and advertisements notwithstanding
that such matters are patently unrelated to either the em-
ployment relationship or "official union business." Respon-
dent, so far as this record shows. did not police such post-
ings by employees. Accordingly. I find that the Union's
right to post notices was a statutory one without regard to
any contractual right it may also have had. Thus. my opin-
ion. Respondent's "breach of contract" defense is insuffi-
cient to avoid a decision on the merits in this matter.
Having found the Union had. under the circumstances
here, a statutory right to post its "newsletter" there remains
the issue of whether the language of the newsletter was such
as to deprive it of the protection of the Act. Examination of
the letter shows no name-calling, no vulgarities. and no pro-
fanities or obscenities were used in reference to manage-
ment personnel. The only reference to Hogue that can be
considered derogatory in the slightest is the assertion that if
he had his way employees would receive no paycheck at all
and the additional comment that Hogue expected more "sq.
footage" from the "chain gang" with nothing in return.
While these comments are certainly not flattering and ma,
be insulting I am not convinced that they caused the news-
letter to lose the protection of the Act.
As stated by the Court in N.L.R.B. v. Cement Transport,
Inc., 490 F.2d 1024 at 1029 (6th Cir. 1974):
In the context of a struggle to organize a union. "the
most repulsive speech enjoys immunitN provided it
falls short of a deliberate or reckless untruth." so long
as the allegedly offensive actions are directly related to
activities protected by the Act and are not so egregious
as to be considered indefensible.
The Court went on to hold in the case that an employee's
reference to an employer's president as a "son-of-a-bitch"
321
D.('CISIONS OF NATIONAL LABOR RELA'IIONS BOARD
was not egregious or out of context in a labor struggle. Of
course, the "context" in that case included organizational
efforts while in the instant case the newsletter was not di-
rected to organizational efforts but to stimulate support of
an already incumbent union. Nevertheless, the distinction is
one without a difference tbr nonorganizational protected
activities are entitled to the same protection and privileges
as organizational activities. Paranite Wire & ('able Division.
Essex Wire Corporation 164 NLRB 319 (1967).
The remarks in the newsletter pale in comparison to cer-
tain other cases where the Board has held derogatory refer-
ences to management made in the context of a protected
activity not to have lost protection of the Act. For example.
in Dreis & Krump Manufacturing, Inc., 221 NLRB 309
(1975), a statement and leaflet distribution by an employee
accusing a foreman, and other of the employer's foremen,
of "malice, gross negligence, carelessness and dissembling"
was found by the Board to be protected. In Timpe, In(c..
supra, an employee's reference to an employer official as
"chubby and paunchy from the fruit of our labor" was
found to be still within the protection of the Act. A state-
ment of an employee-union agent to a management oficial
concerning the official's lack of intelligence was found to be
protected under the Act in American Telephone & Telegraph
Co., 211 NLRB 782 (1974), enfd. 521 F.2d 1159 (2d Cir.
1975). Likewise, in Ben Perkin Corporation, supra, an em-
ployee was discharged for accusing the employer's pres-
ident of bribing a union agent in order to obtain a lesser
wage increase than provided for in the union contract, but
the Board found the comment to be protected and the dis-
charge unlawful. On the other hand, in Golden Nugget, Inc.,
215 NLRB 50 (1974), the Board found an employee's refer-
ence to a management representative as a "bullshitter and
treacherous" not to be protected.
Considering the foregoing precedent I find that the state-
ments and assertions in the Union's December 5 newsletter,
while perhaps "inflammatory" and even, as Respondent
contends, to some extent "disruptive of discipline,"' they
were nevertheless protected by Section 7 of1 the Act. The
Act's protection is lost only when the remarks are "egre-
gious," and I find the remarks here not of an egregious
nature.' Rather, I view the Union's newsletter to simply
constitute "political rhetoric" or that "rhetorical hyper-
bole" which "is well within the protected right of employees
'under federal labor law' in demonstrating their 'strong dis-
agreement' on the matter of their legitimate concern in the
present case." Great Lakes Steel. Division of National Steel
] Almost any literature or statement by a union appealing for employee
support against management can be regarded as tending to disrupt disci-
pline, but "IF]ederal law gives a union license to use intemperate. abusive,. or
insulting language without fear of restraint or penalty ift' it believes such
rhetoric to be an effective means to make its point." National As m ialalon of
Letter Carriers. AFL-CIO v. Austin. 418 U.S. 264, 283 (1974). And here, the
"tendency to disrupt discipline is no greater because the "newsletter" ssas
"posted" rather than distributed, mailed or read at a union meeting.
'To the extent that Maryland Drydock Co., supra, cited by Respondent
might indicate a contrary result I note that that decision reversed the Board's
earlier decision to the contrary. I am bound to follow the Board precedent
until the Supreme Court overrules it. In any event. I would be inclined to
find the cited case distinguishable on the basis that there, unlike here, the
union in its distrbutions had engaged in "name calling" referring to the
employer's president as a goose and a vulture.
('orporation, 236 NLRB 1033, 1036 (1978). Accordingly, I
find that Respondent's removal of the Union's newsletter
constituted a violation of Section 8(a)(1) of the Act. It
therefore follows that Hogue's threat to Billy Young of dis-
ciplinary action for any further posting of the newsletter
also violated Section 8(a)( 1 ) of the Act.
B. 7Te Remnaining (a)( l A legalions
The remaining 8(a)(I) allegations involve statements at-
tributed to Respondent's Manager Trainee and Foreman
Jim Grundy by Billy Young. Young testified that on De-
cember 19 he had a discussion with Girundy in the specialty
department regarding the filing of grievances and Grundy's
desire in his capacity as trainee to be a mediator between
management and the Union on grievances. Grundy made
the statement that he had visited other plants of Respon-
dent and related that in one when someone filed a grievance
for the first time it laid in the bottom drawer of a desk and
the next time a grievance was filed by the same employee
the employee was dismissed. Young inquired if that hap-
pened where the Union represented the employees and
Grundy replied affirmatively and said it was even in one of
the "multiples."'
Later on the same day, according to Young, Grundy dis-
cussed with him the desirability of changing the break sys-
tem, a subject initially broached by Grundy in the earlier
conversation noted above. It was Grundy's suggestion that
breaks should be changed so that instead of having employ-
ees take simultaneous breaks called by the whistle blowing
the employees should be individually released for breaks by
the supervisor. Young opposed the suggestion stating that
some employees wouldn't get a break if the supervisor had
to tell them when to go rather than having breaks at a set
time. In the same conversation (;rundy also said that the
plant manager was ready to retire and he could make life
miserable lor union officers. Young responded that it
wouldn't make any difference with him. since he as stew-
ard] was going to represent the "people" the best way he
knew and to see that everybody was treated fair.
Grundy. called by Respondent. admitted that he had had
several conversations with Young regarding the operation
of the department. He testified that in view of his inexperi-
ence in the work and since he was only temporarily filling
in for the department foreman he found Young's knowl-
edge and experience helpful. Grundy described himself as
in a sort of "neutral" position, not really being supervisory
and yet not being hourly paid, 6 and stated he received "pur-
portedly wise counsel" from Young. However, he denied
specifically the statement attributed to him b Young re-
garding the plant manager retiring and making it hard on
union officials.
Grundy likwise denied that he told Young that he had
visited a plant where he was told that an employee's first
The "multiples" refers to the nineteen plants of Respondent including the
Louisville plant represented by different local Unions which were all parties
Ito the same collective bargaining agreement and to the negotiations which
produced that agreement.
6Respondent's answer admits that rundy at all times material to this
case was a supervisor within the meaning of Sec. 2( I1) o(t the Act.
322
CONTAINER CORPORATION OF AMERICA
grievance was filed in a bottom drawer and was dismissed
after the filling of a second. On the other hand he admitted
that in early December he had, as part of his training pro-
cess, visited Respondent's Cincinnati, Ohio, plant where the
plant manager, Jack Boone, had related to Grundy and
another management trainee that he maintained a file of
grievances filed by people whom he felt were not "subscrib-
ing to the work effort." Moreover, Grundy admitted that at
some time after his return to the Louisville plant he was
taking a coffee break with Sturgeon. Personnel Manager
Gene Bedden, and Plant Engineer Hal Williams in the
lunchroom area also used by production employees. at
which time, in discussing "tall stories" involving Cincinnati
Plant Manager Boone, he reported that Boone had told him
that he placed the first grievance in his bottom drawer and
upon receiving a second grievance from an employee he
disciplined or "gets rid of the guy." While Grundy testified
he saw no employees around he conceded that his comment
could have been heard by a production employee using
lunchroom coin machines on the other side of a partition
near where Grundy and the others were seated but still
within hearing distance.
The General Counsel contends that the statements attrib-
uted to Grundy by Young regarding what Respondent did
with grievance filers in other plants constituted a violation
of Section 8(a)(1) as a clear threat to employees as to what
might happen to employees in the future if they filed griev-
ances. Likewise Grundy's alleged threat that the retiring
plant manager could make it hard on union officers, the
General Counsel argues, amounted to a "veiled threat" to
make Young's life miserable because he was a union stew-
ard.
The Respondent contends that Grundy did not make the
statements attributed to him by Young and that even if he
did they were not threats violative of Section 8(a)( ). More-
over, Respondent contends that even if the statements were
made and were violative of Section 8(a)( 1) of the Act theN
would not warrant the issuance of a remedial order. Citing
the comments of the concurring opinion of Board Member
Penello in Peerless Food Producrs, Inc., 236 NLRB 161
(1978), and the Board's language in American Federation of'
Musicians, Local 76, AFL-CIO (Jimmy Wahell Shaw). 202
NLRB 620 (1973), Respondent contends that Grundy's
statements, if made as claimed by Young were "insubstan-
tial, isolated" and de minimus, in view of the long standing
bargaining relationship between the Union and Respondent
and the absence of an unfair labor practice history.
Conclusion
Having considered the matter carefully I find myself in
agreement with the General Counsel's position that the re-
marks attributed to Grundy by Young. if made, constituted
violations of Section 8(a)(1). The mere reference to the
practice existing in another of Respondent's plants repre-
sented by a different local to the effect that employees are
fired following repeated grievance filings by them implies
not only the ability of Respondent to adopt such a practice
at the Respondent's plant here involved but also the possi-
bility that such a practice might be adopted. The acknowl-
edgment of the existence of such a practice concedes not
only Respondent's condonation of it. but Respondent's ca-
pacity to implement it wherever it desired. The statement
therefore tended to inhibit and undermine employee resort
to the grievance procedure. Accordingly, I find that Grun-
dy's statement to Young in this regard would constitute a
violation of Section 8(a)( 1 as a threat to adopt a policy of
retaliation against grievance filers.
Similarly, I would agree with the General Counsel's posi-
tion that the statement of Grundy attributed to him by
Young regarding the retiring manager making it hard on
union officers, if made, constituted a violation of Section
81a)(1). The statement occurred in the context of some
changes Grundy was suggesting to Young as a union stew-
ard and which Young opposed. In this context the sugges-
tion that the retiring plant manager "could" make it "hard"
on union officers has an obvious coercive effect on any lis-
tening employee like Young because it implies retaliation to
force agreement or concession. It stands as a thinly veiled
threat to employee union officers that Respondent will
make it "hard" on them if they too forcefully oppose man-
agement positions.
The question remains as to whether Grundy did in fact
make the statements attributed to him. I have carefully con-
sidered the testimony of Grundy and Young as well as their
demeanor while testifying. I conclude that Young's testi-
mony must be credited over that of Grundy. In this regard
I note that Grundy. as a relatively new management train-
ee, had admittedly not received any training in labor rela-
tions at the time. His background was that of a military
officer. It would not have been improbable that one not
having been versed in the finer points of labor relations
would make such statements. Moreover. Grundy conceded
that he had at least told Respondent's management officials
at Louis ille about the statements and practices of Boone at
the Cincinnati plant. There is substance then to Young's
testimony on the subject establishing that it was not in the
least fabricated. I find it not unlikely that Grundy in addi-
tion to telling management personnel would have at least
repeated the story to Young.'
Young impressed me as a generally credible witness. Hlis
credibility was effected, but not substantially impaired, by
his failure to recall the entire conversations in which Grun-
dy's statements were made. Nor do I find that Young's
credibility. was adversely effected by a threat attributed to
him by Grundv around January 12, 1978, the day before
the charge in Case 9 CA 121 I1 was filed by Young. when
Young, in a dispute with Grundy over issuance of warning
letters to two employees for not punching their own time-
cards, allegedly told Grundy that Grundy should either de-
stroy the warning letters or Young would "get" him and his
tenure with Respondent would be short. Young denied the
threat. While the timing of the filing of the charge supports
a conclusion that the January 12 incident precipitated the
filing of the charge, and to a lesser extent the likelihood of
Young's alleged threat to Grundy, such a threat by Young,
even if made, would not establish that Young's testimony
Even if Young overheard Grundy making the remark o the other man-
agement personnel as Respondent theorizes I would nevertheless find a io-
lation based on the remark. A coercive statement, even it unintentionally
communicated to employees, violates Sec. 8( 1 I ) i ov,erheard bh them Oe.
go Street Supermarkets. Inc.. 159 NLRB 1735, 1736 1966); Frd Radio &
Mica ('orporation. 1 15 NLRB 1046,. 1047 1956h)
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarding Grundy's December 19 remarks was untruthful.
On the contrary, such a threat would tend to verify that
Young knew something detrimental about Grundy which
he intended to use. Accordingly, I find, on the whole,
Young's testimony regarding Grundy's December 19 re-
marks more convincing and accept it as truthful.
Having found that Grundy made the remarks attributed
to him, and having further found that such remarks vio-
lated Section 8(a)(1) of the Act there remains Respondent's
argument that no remedial order based on such remarks is
warranted because of their isolated or de minimus nature. I
do not agree with Respondent's argument in this regard.
Here, as in Interlake, Inc., 218 NLRB 1043 (1975), the
threats involved are far too serious in "import and impact"
to be dismissed. Such threats tended to discourage employ-
ees from seeking to vindicate rights through their collective
bargaining representative and the contractual grievance
machinery. Moreover, the threats tended to discourage em-
ployee union representatives from forceful and effective
representation of employees. Under these circumstances,
and notwithstanding the absence of an unfair labor practice
history on the paat of the employer, the violations have an
adverse and far reaching effect and may not be regarded as
"isolated." Accordingly, I find a remedial order in this mat-
ter appropriate.
CONC'LUSIONS OF LAW
1. Respondent, Container Corporation of America. is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, Local 1048. United Paperworkers Interna-
tional Union, AFL-CIO. is a labor organization within the
meaning of Section 2(5) of the Act.
3. By unlawfully and discriminatorily removing the
Union's newsletters from its bulletin boards on December 5
and 6; by threatening an employee with disciplinary action
for any reposting of the Union's newsletter: by threatening
employees with discharge for filing more than one griev-
ance; and by threatening to make it hard on employee
union officers. Respondent violated Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it be
ordered to cease and desist from such conduct and to take
affirmative action to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act., I hereby issue the following recommended:
ORDERs
The Respondent. Container Corporation of America,
Louisville. Kentucky. its officers, agents, successors, and as-
signs, shall:
I In the event no exceptions are filed as provided by Sec. 102.26 of' the
Rules and Regulations of the National Labor Relations Board, the findings,
1. Cease and desist from:
(a) Unlawfully or discriminatorily removing Union
newsletters or notices to employees from its bulletin boards
and threatening employees with disciplinary action for
posting such newsletters or notices.
(b) Threatening employees with discharge for filing more
than one grievance.
(c) Threatening to make it hard on employee union offi-
cers.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its Louisville. Kentucky. plant copies of the
attached notice marked "Appendix."9 Copies of the notice,
on forms provided by the Regional Director for Region 9.
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained 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 the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
'ln the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
APPENDIX
Noll(li To EPI.OYiFES
POSII)D BY ORDER OF IFIE
NAIIONAI. LAB()R REI.AIIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and to comply
with what it says.
WF Will. NOT unlawfully or discriminatorily remove
from plant bulletin boards the lawful newsletters or
notices to employees from Local 1048, United Paper-
workers International Union, AFL CIO. and wE vUILL
Nor threaten employees with disciplinary action for
posting such newsletters or notices.
WE WI.LL NOT threaten employees with discharge for
filing more than one grievance.
WE WILL NOT threaten to make it hard on employee
union officers.
WE WI.L NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
CONTAINER CORPORATION OF AMERICA
324