Empire Box, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1948

79 N.L.R.B. 1011 (N.L.R.B. 1948)

In the Matter of EMPIRE Box, INCORPORATED and INTERNATIONAL PRINT-
ING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA, AMERICAN
FEDERATION OF LABOR
Case No. 10-C-2082.-Decided September 07, 1948
DECISION
AND
ORDER
On November 26, 1947, Trial Examiner Louis Plost issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in any unfair labor practices and rec-
ommending that the complaint be dismissed, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Union
and the attorney for the General Counsel filed exceptions to the Inter-
mediate Report together with supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent, Empire Box, Incorporated, Atlanta, Georgia, be, and
it hereby is, dismissed.
INTERMEDIATE REPORT
Charles M. Paschal, Jr., Esq., for the Board.
Messrs. Herman L. Moore and W. H. Henley, of Atlanta, Ga., for the Re-
spondent.
Messrs. George 0. Baker and Warren W. McCann, of Atlanta, Ga., for the
Union.
1 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the Board has dele-
gated its powers in connection with this case to a three -man panel consisting of the under-
signed Board Members [Houston, Reynolds , and Gray].
79 N. L. R . B , No. 122.
1011
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge duly filed July 8, 1947,' by International Printing
Pressmen and Assistants Union of North America, affiliated with the American
Federation of Labor, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Tenth Region (Atlanta,
Georgia), issued its complaint, dated July 8, 1947, against Empire Box, In-
corporated, of Atlanta, Georgia, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of , the complaint and the amended charge, together with notice of hearing
thereon, were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance :
(a) that the Respondent on or about August 28, 1946, discharged and thereafter
refused to reinstate Pearl Crowder for the reason that she joined and assisted
the Union and engaged in concerted activities with other employees for the pur-
poses of collective bargaining and mutual aid and protection; (b) that from
on and after July 1946, the Respondent vilified, disparaged and expressed dis-
approval of the Union ; urged, threatened and warned its employees to refrain
from assisting, becoming members of or remaining members of the Union ; in-
itiated and circulated an anti-union petition ; and conducted a poll to determine
which of its employees were members of the Union; 2 and (c) that by the fore-
going conduct the Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act, more
particularly within the meaning of Section 8 (1) and (3) of the Act.
On July 28, 1947, the Respondent filed an answer 3 in which it denied engaging
in any of the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held at Atlanta, Georgia, on July 28 and 29,
1947, before Louis Plost, the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The Board was represented by counsel ; the Respondent
and the Union by representatives. Full opportunity was afforded all parties
to be heard, to examine and cross-examine witnesses and to introduce evidence
bearing upon the issues. Without objection the undersigned granted motions
by the Board's attorney to amend the complaint and also conform the pleadings
to the proof with respect to errors in spelling, dates, and similar minor variances.
An opportunity was afforded all parties to argue orally on the record and to file
briefs, proposed findings of fact and conclusions of law, or both, with the under-
signed. Oral argument was presented by the attorney for the Board. No briefs
or proposed findings of fact and conclusions of law have been received.
Upon the entire record and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Empire Box, Incorporated, is a Georgia corporation having
its plant and office in Atlanta, Georgia, where it is engaged in the manufacture,
1 The original charge, containing the same allegations, was filed by the Union September
30, 1946
2 At the hearing the undersigned granted, without objection, a motion by the Board to
amend its complaint to so allege.
3 Permission to file its answer was granted the Respondent by the undersigned at the
opening of the hearing and over the objection of the Board's attorney.
EMPIRE BOX, INCORPORATED 1013
sale and distribution of paper boxes and related products. During the usual
course of its business, the Respondent purchases and has shipped to it in inter-
state commerce from points outside the State of Georgia approximately 40 percent
of the raw materials it uses in the manufacture of its product. During 1946,
such materials received by the Respondent in interstate commerce had a dollar
value of $60,000. During the same period, the Respondent shipped in interstate
commerce approximately 5 percent of its finished products, having a dollar value
in excess of $10,000.
The undersigned finds that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Printing Pressmen and Assistants Union of North America,
affiliated with the American Federation of Labor, is a labor organization admit-
ting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharge of Pearl Crowder
1. Organization of the Union
On or about January 1, 1946, the Respondent acquired the plant and business of
a paper box manufacturing company which had been in existence for many years
but which had gone to seed. Upon taking over the business, the Respondent
embarked on a policy of modernization which included both the overhauling of its
physical plant and increasing its wage rates.
Apparently there had been no union organization among the employees of the
Respondent's predecessor. Sometime in June 1946, the Union began to organize
the Respondent's employees. The first organizational meeting was held June
18, 1946. At this meeting a local4 was organized and Pearl Crowder was elected
its president.
On July 23, 1946, the Tenth Regional Office of the Board conducted an election
among certain of the Respondent's employees to determine a bargaining repre-
sentative at which the Respondent's employees designated the Union as their
bargaining representative. On September 19, 1946, the Union acid the Respond-
ent entered into a collective bargaining contract which remains in effect by its
own terms until December 31, 1947, and is to be automatically renewed for a
further period of 1 year unless notice of termination is given by either party.
2. Discharge of Pearl Crowder
Pearl Crowder testified that sometime during the working day of August 27,
1946, she had been informed that a new employee had requested employee Fannie
Mae Phillips Corn, the local's secretary," to sign her into the Union but that
the latter, acting on instructions of the local union's vice-secretary, had not done
so. As mentioned above, Pearl Crowder was president of the local but there was
6 The local union is Atlanta Paper Products and Specialty Workers' Union No. 527.
The collective bargaining contract hereinafter referred to is signed by the local and the
Respondent. The charge was filed by the parent organization.
6 Variously referred to in the record as Fannie Mae, Fannie Mae Phillips, Mrs. Phillips.
and Fannie Mae Phillips Corn.
809095-49--vol. 79-55
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the time no' contract between the Union and the Respondent, and in fact no
negotiations for such a contract had been entered into.
Crowder testified as follows :
I sent for Mrs. Phillips to come to my table when she came in. She
usually got there about 3: 00 o'clock and she would go to each girl's table
and talk before working hours.
I waited for her and she didn't come. When I got off, I had my pocket-
book in one arm and about ten Coca-Cola bottles in the other arm, and my
hat and shoes and I went to her'machine and I said, "Fannie Mae, I under-
stand you have got a new girl. You write her up," and I said, "I heard
Elizabeth told you not to.write her, up but I don't.see what'right she has to
tell you anything," and I walked out.
Crowder further testified that, at approximately 11 a. in. of the following day,
Grover Shaddix, the superintendent of the box, department, came to her place of
work and asked her to come to the office. Regarding what followed thereafter,
Crowder testified : - • • r
... So I said, "All right, let's go," and I went downstairs and when I
got there Grover [.Shaddix] were in the office, and Mr. Moore '[tlie plant sup-
erintendent] and him were talking, and I stepped in the office. I said, "If
you have got anything to say about me, say it to my face."
He said, "We are not talking about you. We are figuring your time."
Crowder further testified that Moore read her a "letter" giving the reasons
for her discharge and asked her to sign 'it, which she refused to do and that
Moore also made reference to Crowder's statements to Corn the previous day
and stated that Crowder had "made her cry."
Corn testified, regarding the above-related incident between Crowder and
herself, that on August 27, while she was at work but when Crowder was leaving
for the day
Well, she [Crowder] came up to me and started like that (indicating),
and I, turned around. I was,operating the machine and ... I turned to
see what was the trouble and she said, "Laura called me last night and told
me" I was working against the Union, and I was doing, this and I was doing
that, and T said, "Well, wait a minute," and that's the only word I said to
her during the whole thing. . . .
Corn testified that Crowder spoke to her for about 5 minutes and then left
and that, inter alga, Crowder stated, "I• am President of this damn thing and
you'll do what I say." Corn also testified :
I stood there for a minute and I was nervous and my niece was helping
me and she came around there and was talking to me. I kind of got to
shaking and I couldn't operate the machine and I did cry for just a little
bit, but it was because I was nervous ; you know.
Hearing Examiner PLOST. Did you report this to the foreman?
The WITNESS. My foreman saw it.
• * , s s . s .# s
The WITNESS. He said what was- the matter and I told him that she was,
mad and he says, "Well I don't want that happening here."
Corn continued with her work and finished the day. , She testified without
contradiction that this incident was "the third time" Crowder had "jumped on"
EMPIRE BOX, INCORPORATED 1015_
her in the plant regarding Union matters within a period of "two or three weeks
time" and that the effect of these affairs had made Corn so nervous that on one
of the previous occasions she had asked Crowder "Please don't jump me any
more. If we can talk this over in a nice way-"
According to Corn's testimony, she had reported these incidents to her foreman.
From his observation of Crowder and Corn, the undersigned believes the
version of the incident between Crowder and Corn at Corn's machine on the'
afternoon of August 27, as given by Corn, to be the more accurate . Corn impressed
the undersigned as a wholly truthful witness, Crowder did not, and the under-
signed therefore credits Corn.
Grover Shaddix testified that he became superintendent of the Respondent's
set-up box department about 2 weeks before Crowder' s discharge. Prior to
being made superintendent of the department, Shaddix was a machine operator.
On the morning of August 28, the night foreman reported to Shaddix that
Crowder had "picked a fuss" with Corn and "had her crying on the job."
Shaddix called Crowder and, according to his testimony, told her that he wanted
"harmony amongst the employees" and "didn't want any fighting or fuss," but
Crowder replied "that as far as the job was concerned she did not give a damn
about it." Shaddix then reported to W. H. Henley, the assistant plant man-
ager, and recommended Crowder's discharge. Shaddix testified that one of the
reasons he discharged Crowder was because of her statement that she "didn't
care a damn for her job." Crowder denied making the statement . The under-
signed does not deem it necessary to resolve this conflict in the testimony as it
is evident that Shaddix did not discharge Crowder and apparently had only
authority to recommend a discharge and furthermore the record is clear that
the alleged remark did not enter into Crowder's discharge at the time she was
discharged.
Herman L. Moore, the Respondent' s general manager, testified that on the
morning of August 28, Henley reported to him that Crowder had created a dis-
turbance at Corn's machine "concerning something about the collection of dues";
and that thereafter Moore spoke to Shaddix and to several unidentified em-
ployees who had witnessed the occurrence and then sent for Crowder. While
Crowder was in his office , Moore read her the following statement which, accord-
ing to Moore, she was not asked to sign :
Mrs. Pearl Crowder of 742 Pryer Street, table piece work operator, was
dismissed today for the following causes : reckless and vicious conduct
affecting the morale of fellow employees ; causing disturbance during work-
ing hours resulting in loss of production; threats to other employees while
on company premises ; making statements derogatory to company interests
in the presence of other employees while on company time and premises.
( Signed ) HERMAN L. MOORE.
Moore testified that all the charges enumerated in the letter, save the last,
referred to the August 27 incident at Corn's machine and that the last charge
regarding derogatory statements referred to other conduct of Crowder not
otherwise explained in the record . Moore furnished a copy of the statement
to the Union.
• It is conceded that Crowder was a competent employee . Crowder admitted
that she was irregular in attendance.
Cordelia Porterfield , a witness called by the Board, testified that Crowder
never left her work but that "I have seen lots come to Mrs. Crowder's table
but she didn't leave."
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pauline Mathews, who is Crowder 's sister and was called by the Board , testi-
fied that Crowder never left her work but that other employees sometimes came
to her table to talk.
Crowder testified that she had first sent for Corn to come to her table and
that when Corn did not do so she went to Corn's machine, during Corn' s work-
ing time. Crowder testified on cross-examination :
Q. (By Mr. MOORE. ) Then the discussion was between a different depart-
ment, or a machine operator, and you , as a table operator?
A. Sure. I had that right. I sent for her to come to my table before
she went to work . That was my right to do that.
Trial Examiner PLOST. And you say it was your right to send for her to
come to you . What do you mean by that?
. The WITNES S. I meant as president of the Union the girls came to me
and asked me to talk to her to get this girl to sign up and when she came
up about 3 : 30 and sometimes 2: 30 every day, I thought she could. come to
my table and talk before-as she usually did-before she went to work, and
she didn't come.
* * * * * * *
Hearing Examiner PLOST. You didn't have any contract at that time with
the Company ? The Union didn't?
The WITNESS. No, Sir.
It is clear that Crowder first sent for Corn to come to her table for an inter-
view at a time when Crowder would be at work but Corn would not, and that
upon Corn 's ignoring her request, Crowder went to Corn at a time when Crow-
der was not on duty but Corn was. Crowder admitted that she had "argu-
ments" with other employees at various times.
3. Conclusions
As herein found the Union held its first organizational meeting and election
of officers for the local on June 18; on July 23, an election to determine a bar-
gaining agent was conducted among the Respondent 's employees by the Board's
Regional Office ; on August 28 , Crowder was discharged ; and on September 19,
a contract between the Union and the Respondent was entered into. At the
time of Crowder 's discharge , negotiations for a contract had not yet begun.
In addition , the record shows that the Respondent nevbr opposed the Union
in its organizational effort or engaged in any unfair labor practices prior to
Crowder 's discharge . On the contrary , the Respondent was prompt in its recog-
nition of the Union 's rights as they became apparent . This finding is supported
by the testimony of William Ralph Sanders , who was the Union's organizer and
representative during the period of organization and represented the Union
until after the contract was signed . Sanders, who was called by the Board,
testified :
Q. (By Mr. MOORE. ) In other words, as far as your dealings with the
Company or management , in any way , there was a harmonious progress in
every respect.
A. There was. I was treated most courteously.
The undersigned is convinced that upon becoming president of the local
union , Crowder not only misunderstood her "rights" as an officer of a labor organi-
zation not under contract with the employer but also deliberately engaged in
EMPIRE BOX, INCORPORATED 1017
conduct on the Respondent's time and premises which went far beyond the
legitimate scope of employees' concerted activities.
Upon a review of all the evidence, it is the considered opinion of the undersigned
that there is lacking clear, substantial and persuasive evidence that the Respond-
ent discharged and thereafter refused to reinstate Crowder because she joined
and assisted the Union and engaged in concerted activities with other employees
for the purposes of collective bargaining or other mutual aid and protection as al-
leged in the complaint, but that the record does show that Crowder engaged in
conduct beyond the legitimate scope of concerted activities and that such
conduct tended to disrupt the operations of the employees' business and that be-
cause of such conduct on the part of Pearl Crowder, the Respondent on August
28, 1946, discharged her.
The undersigned will accordingly recommend that the complaint be dismissed
insofar as it alleges that the Respondent unlawfully discharged Pearl Crowder.
B. Other alleged acts of interference, restraint and coercion
The complaint alleged that the Respondent "initiated and circulated an anti-
union petition," thereby violating Section 8 (1) of the Act.
In support of this allegation, the Board sought to show that the Respondent
initiated and circulated a petition for the formation of a company-dominated
union. Two witnesses, Coralee Jennings and Alma Gaddis, called by the Board,
testified that a paper, which they described as being a sheet of company stationery,
was circulated among some of the employees and various signatures were taken ;
however, both witnesses agreed that there was no caption on the paper and that
it appeared to be a list of names. No meetings for the formation of any labor
organization other than the Union were held among the employees. The testi-
mony of both Jennings and Gaddis was extremely vague regarding the "petition."
Jennings testified that "one of the women" asked her, "Do you want to join
the Company union with us?" and then advised her to see Bill Smith, apparently
a supervisor, who told Jennings, when the latter asked for the paper, that he did
not have it but later called her to his office and told her to sign if she cared to.
Jennings did not sign. Jennings testified that the above-related incident occurred
after the Union election (July 23, 1946). Gaddis testified that she affixed her
signature to a sheet of paper on which only names appeared, but otherwise she
seems to have understood nothing of its purpose. According to Gaddis, some time
after she had put her signature to the paper, Henley told her that "if that went
through all right" there would be a pay raise and a place to meet would be pro-
vided for employees in the plant. Gaddis' testimony was vague and did
not impress the undersigned favorably.
The undersigned can find nothing of probative value in the testimony adduced
to prove the Board's allegation that the Respondent initiated and circulated an
anti-union petition or that an attempt was made to form a company-dominated
union. He will therefore recommend the complaint be dismissed insofar as it
so alleges.
The Union and the Respondent signed,a collective bargaining agreement Sep-
tember 18, 1946. This contract contained the following clause:
All employees who are now members of the Union in good standing in
accordance with the constitution and bylaws of the Union and all employees
hereafter becoming members shall, as a condition of employment remain
members of the Union in good standing for the duration of the contract.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order that the Employer may be informed who is a member of the
Union, the Union will furnish to the employer a written list of its members.
On September 24, the Union furnished a list of its members to the Respondent.
General Manager Moore freely admitted that between the time the contract was
signed and the date the Respondent received its list of members from the Union,
he caused cards to be circulated among the employees on which each of the
employees indicated membership or lack of membership in the Union. Moore
• testified this was done in order to prevent any future argument "for the interest
-of the Union as well as ourselves."
The Board amended its complaint to allege a violation of Section 8 (1) in that
"the company conducted a poll among its employees to determine whether or not
they were members of the Union."
In view of all the circumstances , the undersigned is not persuaded that the act
of the Respondent in seeking to ascertain which of its employees were bound to
membership in the Union by reason of the contract between the Respondent and
the Union , as found herein , was an unfair labor practice and will accordingly
recommend that the complaint be dismissed insofar as it so alleges.
In addition , the Board sought to show that the Respondent violated Section
8 (1) of the Act by certain conduct at meetings with the Union's grievance -
committee.
The record discloses that there have been but three meetings between the
Respondent and the Union grievance committee , all of them convened at the
request of the Union . Members of the committee , called by the Board , testified
that all the meetings arrived at results acceptable to the Union.
Pauline Mathews , who was a member of the committee , testified that at a
grievance committee meeting held January 22 , 1947 , Assistant Manager Henley
told the committee members : "that the Union was going to cooperate with him,
the Union members. They had enough evidence in some cards he had in his hands
to get rid of every one of them , if he so desired , and if we didn't cooperate with
the Union he was going to bust up the Union and we had it now and we were
going to abide by the rules "
Mathews further testified that at another meeting, "Mr . Henley told us at that
meeting he was going to have cooperation from the Union and the union members.
That if he didn 't get it, he was going to tear up the contract and burn down the
building."
Cordelia Porterfield testified that at a grievance committee meeting Henley
"would just get mad and he would tell us about the way the contract was, and
what we had to do, and all this, that and'the other , and then he finally, in one
of them, he said he would tear up the contract and burn down the building. He
"had some cards there. He could fire every one of the union members if he so
desired."
Carrie Bell, a grievance committee member called by the Board , testified that
at a committee meeting Henley said that "We wanted a union and we had one
and that everybody was going to have to cooperate with it. If they didn't, he
was just going to burst it up and tear up the contract and, as I remember, burn
the building down . He said that, 'I am going to have cooperation from everyone,
,and I mean it.' "
The undersigned fails to understand the theory under which the above-found
11 'statements by Henley constitute unfair labor practices . Surely, if it is the
theory of the Board's attorney that the Act is intended to police every grievance
meeting between a Union and an employer acting under a contract , an action
EMPIRE BOX, INCORPORATED 1019
thereon should be bottomed on something more substantial than extravagant
and silly language used in a meeting which admittedly arrived at a solution
acceptable to the Union.
Upon a review of all the evidence in the case , the undersigned finds that the
Board has not sustained any of the allegations of the complaint , that the Re-
spondent has not interfered with, restrained or coerced any of . its employees in
the exercise of the rights guaranteed in Section 7 of the Act, and that the Re-
spondent did not discriminatorily discharge Pearl Crowder. Upon the entire
record in the -case, the , undersigned is convinced and finds that the respondent
did not violate the Act as alleged in the complaint . Accordingly , the undersigned
will recommend that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact-and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. The operations of the Respondent , Empire Box, Incorporated , occur in
commerce , within the meaning of Section 2 (6) and ( 7) of the Act.
2. The Respondent has not engaged in unfair labor practices as alleged in
the complaint, within the meaning of Section 8 (1) and ( 3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22 , 1947 , any party may, within
twenty ( 20) days from the date of service of the order transferring the case to
the Board , pursuant to Section 203.45 of said Rules and Regulations , file with
the Board , Rochambeau Building , Washington 25, D. C., an original and six copies
of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding ( including rulings upon
all motions or objections ) as he relies upon, together with the original and six
copies of a 'brief in support thereof ; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report,
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
-promptly made as required by Section 203.65. As further provided in said Sec-
tion 203.46, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten ( 10) days
from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations and recom-
mended order herein contained shall , as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions
and order , and all obections and exceptions thereto shall be deemed waived for
all purposes.
Louis PLOST,
Trial Examiner.
Dated November 26, 1947.