Field Container Corp.

National Labor Relations Board - Board Decisions

Sep 19, 1969

178 N.L.R.B. 536 (N.L.R.B. 1969)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Field Container Corporation and Printing Specialties
and Paper Products Union No . 415, affiliated with
the International Printing Pressmen and
Assistants' Union of North America , AtL-CIO.
Cases 13-CA-8737 and 13-RC-11647
September 19, 1969
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
By CHAIRMAN MCCLLLOCH AND MEMBERS
JENKiNS AND ZAGORIA
On June 11, 1969, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal
of these allegations The Trial Examiner also found
merit in certain objections to the election of October
18, 1968, in Case 13-RC-11647, and recommended
that the election be set aside and that a new election
be ordered. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Charging Party filed a
brief in answer to Respondent's 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
powers in connection with these cases to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith.
The Trial Examiner found that the Respondent
violated Section 8(a)(l) of the Act and interfered
with the election by coercing two employees and by
announcing a profit-sharing plan We do not agree.
The Union has been attempting to organize
Respondents employees since 1961. It lost elections
in 1961, 1962, 1963, and 1964, carried on
unsuccessful organising compaigns in 1965 and
1966, and filed, and then withdrew, a petition in
September 1967. In 1966 Respondent first discussed
instituting a profit-sharing plan but decided its
profits did not justily a plan. In June 1968
Respondent instructed its attorney, Weinberger, to
draft a plan. In July, after discussions with
Respondent's official and its accountant, Weinberger
submitted the plan to the Internal Revenue Service
requesting an advance ruling on qualification under
Section 401(a) of the Internal Revenue Code. On
August 26, Weinberger was informed by IRS that if
certain amendments were made within 15 days the
plan would be approved Weinberger drafted the
amendments, and upon receipt of Respondent's
approval, submitted the revised plan to IRS on
August 29. On the same day at 10 a.m. Respondent
announced to its employees that a profit-sharing
plan had been submitted to IRS for approval. Later
that day the Union filed its petition in Case
13-RC-1 1647. The Union lost the election, which
was conducted October 18, 1968, by a vote of 21 to
100.
It is well-settled that an allegation of Section
8(a)(1) violation and an objection to an election on
the conferral of a benefit can he sustained only
where it is shown that the employer's purpose in
granting the benefits was to interfere with
employees' exercise of their right under the Act to
select a representative of their choice
The Respondent's decision to institute the
profit-sharing plan is not alleged by the General
Counsel or contended by the Charging Party to he
unlawful, and of course it was made several weeks
before the petition was filed. As to the
announcement of the plan, the Respondent contends,
and the record shows, that the announcement was
made as soon as the Respondent was informed that
Internal Revenue Service would be likely to accept
the plan. There is no evidence, and we find no basis
for inferring, that the Respondent knew whether or
when the petition would be filed or requested its
attorney to rush this matter. That the IRS code did
not require the announcement to be made at the
particular time did not prohibit the Respondent
from doing so, if as here, the Respondent had a
valid explanation. In view of the continual
organization campaigns conducted at this plant
every year for the last 7 years, the most recent
campaign extending over a period of 7 months, from
March until October 1968, we are not prepared to
find unlawful intent based on timing of the
announcement. No other evidence of unlawful intent
has been shown. In all the circumstances, therefore,
we find that a preponderance of the evidence fails to
establish that the purpose of the announcement was
to interfere with the Union's organization campaign
or with the Board election. As we find the
announcement was not unlawfully made, the
Respondent was entitled to refer to it during the
election campaign.
The remaining conduct found affected 2 out of a
total complement of 122 employees, and consisted
of interrogation and an allegedly threatening
statement by a leadmen whose supervisory or
' V L.R B v Exchange Parts Co , 375 U S 405. Tonkawa Refining Co .
175 NLRB No 102
178 NLRB No. 82
FIELD CONTAINER CORP. 537
managerial status was marginal at best.' We find
that these were isolated incidents and that they were
insufficient to affect the results of the election.
Accordingly, we shall dismiss the complaint in its
entirety, overrule the objections, and certify the
results of the election.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is. dismissed in its entirety.
CERTIFICATION OF RESULTS OF
ELECTION
complaint and the objections. By order of dated February
17, 1969, the Board adopted the Regional Director's
recommendations. The complaint and notice of hearing,
the amendment to complaint, and the report on objections
and order consolidating cases were duly ser cd upon
Respondent and the Union Respondent filed an answer to
the complaint in which it denied all allegations of unfair
labor practices. The hearing was held on March 19, 20
and 21, 1969, in Chicago, Illinois, before me. The General
Counsel, Respondent and the Charging Party were
represented by their respective counsel and have filed
briefs with the Trial Examiner.
Upon the entire record' and from his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT
It is hereby certified that a majority of the valid
ballots has not been cast for Printing Specialties and
Paper Products Union No. 415, affiliatedwith the
International Printing Pressmen and Assistants'
Union of North America , AFL-CIO, and that said
organization is not the exclusive bargaining
representative of the Employer ' s employees in the
stipulated appropriate unit, within the meaning of
Section 9 (c) of the National Labor Relations Act, as
amended.
'We do not agree with the Trial Examiner , that plant superintendent
Badal's remark, to one of these two employees after the employee said he
wanted to be a union observer, "That is your opinion, you know what you
are doing?" was a threat
TRIAL EXAMINER'S DECISION
STATEMENT OF THE Casa
GFORGF TURIrz, Trial Examiner: On August 29,
1968, Printing Specialties and Paper Products Union No.
415. affiliated with the International Printing Pressmen
and Assistants' Union of North America, AFL-CIO (the
Union), filed a petition with the Regional Director of the
National Labor Relations Board (the Board) for Region
13 in Case 13-RC-11647 for certification as representative
of employees of Field Container Corporation (Respondent
and at times the Company) Pursuant to a stipulation for
certification upon consent election executed by
Respondent and the Union the Regional Director
conducted an election on October 18, 1968. Of the 122
valid votes counted, 21 were for and 100 against the
Union. There were also 8 challenged ballots. On October
25, 1968, the Union filed timely objections to the election
and also filed a charge against Respondent in Case
13-CA-8737, which was served upon Respondent on
October 29, 1968. On January 30, 1969, the Regional
Director, on behalf of the General Counsel of the Board,
issued a complaint and notice of hearing against
Respondent in Case 13-CA-8737 and on March 14, 1969,
he issued an amendment to the Complaint. On January
30. 1969, the Regional Director also issued a report on
objections and order consolidating cases. In the Report on
Objections, the Regional Director recommended that
Objections 1, 2, 4, and 5 be overruled, noted that
Objections 9 and 10 had been withdrawn by the Union,
and directed that Objections 3. 6, 7, and 8, which he
stated were substantially similar to allegations in the
complaint, be disposed of in a consolidated hearing on the
I THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation having its
principal office and place of business at Elk Grove
Village, Illinois, where it is engaged in the manufacture,
sale, and distribution of folding paperboxes and related
items. In the course of its operations Respondent annually
manufactures and sells at its Elk Grove Village plant
products valued at in excess of $100,000, of which
products valued at in excess of $50,000 are shipped from
said plant directly to customers of Respondent located in
the States of the United States other than the State of
Illinois. It is found that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the National Labor Relations Act, as
amended (the Act).
Il. THE LABOR ORGANIZATION INVOLVED
Printing Specialties and Paper Products Union No.
415, affiliated with the International Printing Pressmen
and Assistants' Union of North America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
ill. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS
The principal issues litigated at the hearing were
whether Respondent coerced and restrained employees in
the exercise of their rights under Section 7 of the Act, and
interfered with their freedom of choice in the election (1)
by its announcement to employees that it had submitted
to the Internal Revenue Service for approval a
profit-sharing plan, and (2) by interrogating employees,
promising them other benefits, and threatening them with
loss of work. Also at issue was the supervisory authority
of one Bob Kubasiak 2
A The Profit-Sharing Plan
For some years the Union has been attempting to
organize Respondent's employees. It filed petitions for
certification in 1961, 1962, 1963, 1964 and 1967,
conducting organizational campaigns in each of those
years as well as in 1965 and 1966. All its campaigns were
unsuccessful. The 1967 campaign was discontinued in
'The transcript at page 215 shows that the notice of election was
received in evidence but fails to show the exhibit number It has been
assigned G C. Exh 11 and a copy has been placed in the exhibit file
'Unless otherwise stated, all incidents took place in 1968
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 1967. The Union started a new campaign in
1968. distributing leaflets on March 7 and 25, April 10.
16, and 29, May 27, July 10, and August 22 and 28.
Respondent kept a file of the Union's leaflets, noting
thereon their dates of distribution.
In May Respondent's officials discussed with their
attorney, Weinberger, the question of instituting a
profit-sharing plan. In 1966 it had discussed the matter
with him, as well as with its bank and its accountant, but
had decided not to do anything. In June 1968 Respondent
instructed Weinberger to draft a plan. On July 25.
following a series of discussions with Respondent's
officials and its accountant, Weinberger submitted to
Internal Revenue Service (IRS) a proposed plan and
requested an advance ruling as to whether the plan would
initially qualify under Section 401(a) of the Internal
Revenue Code. Weinberger discussed the matter with
agents of IRS who on August 20 wrote requesting
additional information, which was submitted promptly.
On August 26 Weinberger had a further discussion with
IRS during which an agent informed him that if certain
amendments were made, it was likely that the plan would
be approved; and IRS handed Weinberger a letter that
day noting that amendments were to be submitted within
15 days
Weinberger proceeded immediately to draft the
necessary amendments and other appropriate documents
and that same evening he delivered to Eli Field, president
of Respondent, at Field's home' drafts in final form of the
following
(a) A plan revised in accordance with the IRS
agent's suggestions:
(b) A proposed formal announcement of the plan to
the employees;
(c) Proposed minutes of a meeting of the board of
directors setting forth resolutions adopting the plan,
authorizing its execution by appropriate officers and by
the trustee, which was a bank, approving the plan and
authorizing the president to take the necessary action to
make it effective, appointing two officers as
administrators of the plan, and directing "that
appropriate notice of the adoption of said plan shall be
given to employees of the corporation."
The documents were accompanied by a letter from
Weinberger to Field. The letter, inter alia, described the
changes and gave instructions, if the plan was approved,
as follow s
1. The minutes should be adopted.
2 The Plan (together with additional copies) should
he executed and submitted to Central National Bank
for its execution
3 Written announcement of the adoption of the Plan
(substantially as per my form but improved by your
public relations representative) should be posted and
delivered to each employee.
Early on the morning of August 28 Field brought to
Weinberger at the latter's home the signed minutes and
copies of the plan executed by Respondent. It had not
been executed by the trustee, as directed in Weinberger's
August 26 letter, and Weinberger promised Field that he
would attend to that and would file the fully executed
documents and the minutes with IRS. Weinberger
informed 1 ield that regulations required that the
announcement to the employees contain certain features
but that there was no requirement to give the notice
'Weinberger and Field lived less than two blocks apart Weinberger
merely delivered the papers and left
immediately He testified that under regulations
Respondent had until July 1969 to make the
announcement.' He explained to Field that his draft
announcement would satisfy the requirements of the
regulations, but that it was,customary for employers to
"dress up" the announcement for presentation to the
employees, and he suggested that the draft he submitted
to Respondent's "advertising people" to see what they
could do to make it more presentable. Field told
Weinberger that he desired to let the employees know that
the plan was likely to be approved, and he asked if could
make an announcement to the employees immediately.
Weinberger replied that he had no objection but he gave
no advice. On August 29 Weinberger forwarded to IRS
the revisions in the plan, requesting that the revised plan
be approved. On September 10 Weinberger again
forwarded to Respondent copies of a profit-sharing plan
and of a certification of resolutions. He directed that all
copies of the plan and certification be executed and
impressed with the corporate seal and returned to
Weinberger, who again undertook to have the plan
executed by the bank-trustee. On September 14
Weinberger again submitted papers to IRS' and shortly
thereafter' IRS wrote to Respondent that the plan met the
requirements and would be exempt "if adopted and
amended as proposed in your attorney's letters dated July
25, 1968, August 29, 1968, and September 14, 1968." The
record does not show what was submitted on September
14. On October 1 Weinberger requested the bank-trustee
to send him executed copies of the plan and trust
agreement and this was done on October 4. The record
does not disclose when Respondent executed the plan. On
October 7 Weinberger submitted to IRS an executed
counterpart of the plan and a certified copy of the
resolution adopting it. The letter stated, "Formal
announcement of the adoption of the plan is being
prepared and will be attached to the form 2950 that will
accompany the income tax return for the year ending
April 30, 1969." That same day Weinberger wrote to
Respondent that it was " .. now appropriate that you
finalize the 'announcement' to employees," calling
attention, also. to the requirement that Respondent
determine the amount of contribution for the year ending
April 30, 1969, prior to April 30, 1968 '
Meanwhile, about 10 o'clock on the morning of August
29. Respondent had posted the following announcement to
the employees and had distributed copies in Spanish or in
English to each employee individually
August 29, 1968
TO ALL EMPLOYEES
We are pleased to announce that several weeks ago
we authorized our attorneys to submit for approval to
the Internal Revenue Service a Profit Sharing Plan
covering all employees of our Company from the top
executives all the way through all employees of the
factory, with everyone participating Our attorneys have
now advised us that this plan has now been filed with
the Internal Revenue Service.
'Weinberger also testified that he informed Field that the announcement
wuld be made "as late as the end of the calendar year '
'This finding is based on a statement in Respondent's Exhibit 21
'1 he date of the IRS letter is not clear on the copy in evidence, Rcsp
Exh 21 However the letter refers to Weinberger s letter dated September
14, which had been previously received
'This was apparently an error, 1969 was intended
FIELD CONTAINER CORP. 539
The purpose of this plan is to allow everyone to
share in a portion of the profits of the company
Further details will be announced when the plan is
finally approved by the Internal Revenue Service and it
is further defined and developed.
This is another of the voluntary benefits that we have
given to you over the years. and which we will continue
to do as business conditions allow.
Cooper, Respondent's vice president and general manager,
testified that the announcement was decided on in the
ordinary course of business. At about 1:30 that afternoon
the Union filed the petition in Case 13-RC-11647. That
same day it wrote to Respondent demanding recognition
and issued a leaflet informing the employees that the
petition had been filed and the letter sent During the
weeks that followed Respondent issued a number of
leaflets to the employees urging them to vote against the
Union. At least three such leaflets used as an argument
that Respondent had granted the employees profit sharing.
Concluding Findings as to the Profit-Sharing Plan
The grant of economic benefits during an
organizational campaign is not per se violative of the Act,
the General Counsel must establish that the grant was for
the purpose of the influencing employees in their choice of
a bargaining representative. See Tonakwa Refining Co ,
175 NLRB No. 102, cf. Medo Photo Supply Corporation
v. N L R B, 321 U.S. 678, 686. On the other hand, the
grant or promise of benefits during an organizational
campaign ordinarily does have some natural tendency to
affect employees in their choice of a bargaining
representative For this reason it incumbent upon an
employer who has granted or promised benefits under
such circumstances to come forward with evidence that
the benefits were granted or promised for other reasons.
See Bata Shoe Company, Inc . 116 NLRB 1239, 1241:
Glosser Bros. Inc , 120 NLRB 965, 966; Des Moines
Glove Co., etc., 146 NLRB 225, 226, cf. also ,' .L R.B. v
Great Dane Trailers. Inc , 388 U.S. 26.
While Respondent claimed that in 1966 it gave some
thought to instituting a profit-sharing plan, it
acknowledged that the matter was dropped at that time,
and it is undisputed that action looking towards instituting
a profit-sharing plan was never begun until June or, at the
earliest, May 1968 At that time respondent knew that the
Union's organizational campaign was well under way and
that five union leaflets had been distributed to the
employees. Cooper testified that the profit-sharing plan
would have been premature in 1966, . because our
profit structure was not set up so that all the employees
could get a fair share of the proceeds of this and we
wanted to institute something for all the employees that
we thought would give them a fair and adequate
compensation in this regard." Cooper did not state what
change had been made in the "profit structure" between
1966 and May 1968, nor did he explain in what respect
Respondent's "profit structure" had anything to do with
"a fair share" of profits, nor, indeed, how the plan which
was adopted assured any employee of getting a fair or
unfair share of anything So far as is disclosed by the
evidence, Respondent had the option at the end of each
fiscal year, as to whether to contribute anything at all to
the trust fund.'
The only record evidence as to the content of the plan is Weinherger's
draft proposed announcement sent to Respondent on August 26 It stated
CONTRIBUTIONS FIELD has agreed to contribute for its fiscal year
As the plan was still in its formative stage and no
action was called for until months later, and as it was
announced in the midst of an organizing campaign of
which Respondent was aware and which it opposed, and
as Respondent has failed to offer a plausible explanation
based on business or other considerations for choosing to
announce it at that time, it is interred that Respondent's
purpose was to influence the employees' response to the
organizational activity of the Union.
An examination of Weinberger's actions strengthens
this inference. Without passing upon whether Weinberger
would have accomplished all he did on August 26 in the
absence of a request by Respondent that he rush the
matter,' Weinberger's delivery to Field on August 26 of
copies of the plan for execution by the bank-trustee and
by Respondent was certainly premature, notwithstanding
the IRS agent's indication that his suggested amendments
would make the plan acceptable. The fact is that the bank
was not asked at that time to execute the plan, either by
Field or by Weinberger himself, who testified that on
August 28, he undertook to do so: and on August 29 what
Weinberger sent to IRS was only the six pages which had
to he retyped because of the amendments."' An executed
plan was not submitted to IRS until October 7. It had
been executed by the bank-trustee between October 1 and
4, the record does not disclose when it was executed by
Respondent. Having in mind that the plan had not
received actual approval and that nothing had to be done
under the plan until at least 4 months, and more probably
11 months later," Weinherger's actions on August 26 in
preparing a proposed formal announcement and a final
draft of the plan, and directing that the plan be executed
forthwith by Respondent and the bank-trustee cannot be
explained on the basis of business considerations. Those
actions point, rather, to an effort to comply with a
requirement for speedy completion of the project imposed
by his client In the absence of proof of business
motivation for immediate completion, the actual
motivation must be found in what Respondent did on
August 29-it announced to the employees the submission
of a profit-sharing plan to the IRS. Moreover, it then
proceeded to hammer the message home in its election
propaganda. The inference is inescapable that the purpose
of all the hurry was to place Respondent in a position to
ending 4/30/69 and each fiscal year thereafter , such amount as
FIELD'S Board of Directors shall determine , but not more than
permitted under internal Revenue Code Limitations Contributions by
employees are not required under the Plan
Employees became participants in the plan after 5 )cars of continuous
service At the time of the informal announcement less than 50 percent met
that requirement, but the announcement emphasized that the plan covered
all employees of our Company from the top executives all the way
through all employees in the factory , with everyone participating The
purpose of this plan is to allow everyone to share in a portion of the
profits of company " Weinberger had nothing to do with the informal
announcement
'On August 26 Weinberger conferred with an agent of IRS, went back
to his office and re-did five pages of the plan in accordance with the
agent's suggestions, wrote a two-page letter to Respondent explaining the
changes and giving Respondent instructions as to what to do, drafted two
pages of corporate minutes for a meeting to be held the next day , drafted a
proposed formal announcement to comply with IRS regulations, and
finally personally delivered all these papers, together with copies of the
plan in final form ready for execution , to Field at his home
"The record does not show whether these amendments were in fact
sufficient Resp Exh 21 indicates that Weinberger may have submitted
additional changes on September 14
"The discrepancy between Weinberger 's testimony that Respondent had
until July 1969 to make the announcement , and that he told Field that it
had until "the end of the calendar year," was not explained.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make an announcement which would chill the employees'
desire for unionization." The Trial Examiner does not
credit Cooper's testimony that the announcement was
decided on in the ordinary course of business.
It is found that Respondent's purpose in making the
August 29 announcement was to influence the employees
in their choice of a bargaining representative and that
Respondent thereby interfered with, restrained and
coerced the employees in the exercise of their right under
Section 7, thereby violating Section 8(a)(1) of the Act.
There remains for consideration the question of
whether, under established Board policy, this interference
by Respondent in the employees' freedom of choice in the
election can, in view of the time when it occurred,
constitute a proper ground for objection. Respondent's
announcement of the profit- sharing plan took place before
the petition was filed, but on the same day. The cutoff
time for consideration of objectionable conduct affecting
the results of an election is the date on which the petition
is filed. The Ideal Electric and Manufacturing Company,
134 NLRB 1275, 1278 It is immaterial whether the
objectionable conduct occurred before or after the actual
filing of the petition: the critical period includes the entire
day on which the petition was filed See West Texas
Equipment Company, 142 NLRB 1358, 1359; cf. also
Joanna Western Mills, Co, 119 NLRB 1789, 1791. As it
has been found that the announcement was made for the
purpose of influencing the result of the election and did
tend to have such influence, it is recommended that
Objection 3 be sustained.
B. Interrogation, Threats, and Promise of Benefits
1. Elias Delagarza, who ultimately acted as a union
observer at the election, testified that during the week
prior to the election he was summoned to the office of
Respondent's plant superintendent, Herbert Badal, who
asked him what he thought of the Union; that he replied
that he had no opinion: that Badal said that the employees
were doing all right and the Union was not necessary and,
in fact, was not very good; and that Delagarza assured
Badal, "Don't worry about me. I'm with you." Ernesto
Gaytan" testified that 2 or 3 days before the election he
was summoned from work to Badal's office where Badal
asked him what he thought of the Union, to which he
replied, "I don't know nothing." He said that Badal
further told him that the employees did not need a union,
and that the Company gave them vacations and the right
to come back to their jobs under the same conditions after
taking leave of absence. Badal denied both conversations
in toto The Trial Examiner found Delagarza's and
Ernesto Gaytan's testimony more convincing than Badal's
and finds that Badal did summon those two employees to
his office where he interrogated them as to their opinion
of the Union and urged them to vote against the Union.
While Badal made no direct threats or promises of
benefit, the mere summoning of employees to a seat of
authority, such as a plant superintendent's office, to urge
them to vote against a union is in itself conduct which
interferes with the conditions necessary to a free choice by
the employees in the selection of a bargaining
representative. See Peoples Drug Stores, Inc., 119 NLRB
634, 636. Moreover, Respondent failed to show that
Badal's questioning of the two employees had any
legitimate purpose. Especially because of the
circumstances under which the questioning took place-the
employees were summoned from work to Badal's office-it
had a tendency to coerce and was therefore violative of
Section 8(a)(1).
2. About 3 days before the election Elias Delagarza was
summoned to Badal's office, where Badal said he had
heard that Delagarza had been telling employees that he
was going to bring in nonemployees to vote for the Union.
Badal cautioned him not to make such statements. Juan
Gaytan, a witness for the General Counsel, testified that
he had indeed told Badal that employees reported that
Delagarza was making such statements and that he had
asked Badal if that was possible. Badal's action in
cautioning Delagarza not to misinform the employees as
to who could vote was not improper in view of his
well-founded belief that DelagarLa had been spreading the
misinformation and that it was a matter of concern to
some employees.
3. Ernesto Gaytan testified that on the morning of the
election, which was held at 3 p.m., he was summoned
from work to Badal's office. Badal had Texidor, an office
employee, on hand to act as interpreter. Ernesto Gaytan
testified that Texidor said," "You want [to be] an
observer for the union?" When he answered that he did,
Texidor asked why and said to Gaytan, "That is your
opinion',- you know what you are doing?" Badal testified
that Ernesto Gaytan had asked to see him and that
Gaytan had initiated the conversation, saying that the
Union was putting pressure upon him to be an observer,
that he did not want to be an observer, that he was
leaving the job in 2 weeks and did not know what to do,
and he asked Badal's advice. Badal further testified that
he advised Ernesto Gaytan that he had a right to be an
observer and did not have to leave for that reason.
Texidor corroborated Badal, including Badal's testimony
as to the beginning of the conversation. Ernesto Gaytan
categorically denied having requested to see Badal or
having initiated the conversation when he arrived in the
office, and he denied that he said anything about leaving
the job in 2 weeks or about being under pressure to be an
observer for the Union. He did quit shortly after the
election.
On the day following the election Ernesto Gaytan and
Delagarza, the two union observers, were called to Badal's
office to meet with Badal and Cooper, Respondent's vice
president and general manager. Badal and Cooper both
assured the two employees, as testified by Ernesto Gaytan,
that "What has happened has happened. They arc not
going to treat us badly at our work on our job, because
"There is evidence that on August 22 and 27 employees were signing
union designation cards openly , and that Respondent did know about the
Board ' s requirement for a 30-percent showing of interest, and
Respondent 's experience with five representation proceedings between 1961
and 1967 suggests that Respondent was probably aware that the Board had
a policy, as discussed below , establishing a cutoff date for objections It is
unnecessary , however, to decide whether Respondent was aware that the
Board has a precisely defined policy and was therefore trying to make the
announcement before the filing of an antic.pated petition since it is plain
from the evidence that Respondent 's actions were not in the regular course
of business
"Ernesto Gaytan was a nephew of another employee , Juan Gaytan.
References in the transcript to Ernesto Gaytan "Senior" or "Junior" are
to the nephew Ernesto Gaytan was no longer in Respondent 's employ at
the time of the hearing
The witness testified that these things were stated by Texidor However,
the conversation took place in Badal's office and Textdor had been called
in by Badal to act as interpreter In view of these facts, and as Badal was
present throughout the conversation, everything said by Texidor must be
deemed to have been said by, or on the authority of, Badal This same
finding as to Texidor 's agency applies to all other conversations in Badal's
presence where he acted as interpreter.
FIELD CONTAINER CORP.
we were union observers . If anybody tells us anything bad,
tell it to Herb." Badal and Cooper also testified to
substantially the same effect. However, Badal also
testified-
I initiated the conversation by telling Mr. Ernesto
Gaytan that the reason I had him there was because
yesterday he had wanted me to get involv ed in him
being an observer and wanting to know my feelings,
which I said yesterday and at the time I told him these
are your feelings, whatever you want to do youu can do
So I wanted to assure him.
Cooper testified that during the conversation Ernesto
Gaytan said that he had called Badal over the day before
to tell him that he was going to be an observer and that
the reason he did not care about it was that he was going
to Mexico in a couple of weeks. Cooper and Badal both
attempted to weave into their testimony about the
postelection conversation reference to Ernesto Gaytan's
having initiated the preelection conversation. However.
Badal's version was that he himself had made such
reference, whereas Cooper ascribed it to Ernesto Gaytan.15
Moreover Badal's assurances would have been superflous
if the preelection conversation had been as devoid of
threatening implication as he and Texidor testified. The
Trial Examiner found Ernesto Gaytan credible and finds
that both conversations took place as testified by him.
Because of the circumstances in which it was made
Badal's comment to Ernesto Gaytan, "That is your
opinion, you know what you are doing?" implied a threat
that Respondent might not treat him as well as previously
on the job. The mere fact that Badal thought it necessary
to reassure Ernesto Gaytan is some indication that Gaytan
had reason to feel threatened. More importantly, Badal
had Ernesto Gaytan interrupt his work and come to the
seat of managerial authority to explain why he was going
to be an observer and to hear Gaytan's comment . Badal's
questions were not for the purpose of obtaining legitimate
information but were an integral part of the threat he was
trying to convey as to the consequences of assisting the
Union. It is found that on the morning of the election
Badal coercively interrogated Ernesto Gaytan as to his
activities on behalf of the Union and threatened him with
unspecified reprisals because of such activities, thereby
violating Section 8(a)(I) of the Act. Badal and Cooper's
assurances to Ernesto Gaytan after the election could not
negate the coerciveness of the original interrogation and
warning.
4 Elias Delagarza testified that about 2 or 3 days
before the election he had a conversation with his
leadman. Bob Kubasiak. He said that he himself had
started the conversation, asking Kubasiak what he thought
"about a union." Kubasiak replied that the Union was not
good. that he had a friend "who belonged to the Union"
who had informed him that the Union was not good, that
during a previous employment of his own the Union had
never helped him, and that overtime would he canceled if
the Union came in. Kubasiak completely denied
Delagarza's testimony. He also denied ever having
discussed the Union with any other employee or with any
member of management; and he stated that he never
accepted any of the union leaflets and received none of the
company leaflets which were distributed Kubasiak
impressed the Trial Examiner unfavorably with respect to
credibility, and the Trial Examiner has credited
Delagarza.
"Delagarza was not questioned about the incident
541
Robert Kubasiak was leadman for the 18 to 20
employees in the cutting department on the day shift, which
had about 80 employees in all. The day shift was under
the overall supervision of Badal, who spent 90 percent of
the day on the factory floor. Kubasiak was the individual
who handed the cutting department employees the various
orders they were to work on and who, as occasion arose
during the day, directed some of them to change from one
type of work to another in the department At times
Kubasiak operated machines, especially to relieve men on
"breaks" or when work was pressing, but he spent the
greater part of his time walking about the department
checking the work of others. He spoke to Badal 30 to 50
times each day and he testified that he went into the office
"many times" in the course of his work. Respondent's
scheduling department specified on the various job tickets
the particular press that each job was to be done on, and
before the beginning of work on each day Badal met with
Kubasiak and gave him detailed instructions as to which
employee was to perform each operation where there was
room for selection. Employees referred to Kubasiak as
their "boss," but when they wanted wage increases or
permission to go away for a time and be reinstated. they
directed their requests to Badal Kubasiak made no
recommendations to Respondent concerning employees
and he had the same fringe benefits as the other
employees
If Kubasiak discovered that an employee failed to
correct a defect in his work-for example, if the cardboard
was not being scored accurately so that the cartons would
told properly-he had the employee make the necessary
corrections, or he made them himself. He also had
employees adjust the speed of their machines." Kubasiak
would from time to time throw away products or
materials he considered defective. Pressmen did that also,
but only after consulting Kubasiak, who, in cases he
considered doubtful, sometimes consulted Badal. Kubasiak
made certain that the products turned out by various
employees in his department were placed in the proper
boxes for their respective destinations; if they were
misplaced, Kubasiak required the employees to place them
in the proper box or on the proper skid fie also at times
required employees to move products from his department
to other departments. Kubasiak gave employees
permission to leave early on personal business, sometimes
on his own decision, at other times after consulting Badal.
Respondent's practice was to be liberal in this respect.
When made a leadman. Kubasiak was informed by
Respondent that he was to be paid 25 cents per hour more
than the other pressmen for the lob. However, several
employees in the cutting department had the same wage
rate as he Kubasiak attended meetings with management
where problems of production and safety were discussed
Respondent established that Kubasiak exercised no
discretion or judgement in assigning work, including
overtime, to the employees but merely carried out Badal's
detailed instructions. However he had no instructions as to
what employees were to move products to other
departments Moreover, he did exercise discretion with
respect to whether corrections had to be made in the
"Kubasiak testified that these were merely suggestions on his part and
that even when he himself thought the speed was clearly wrong, the
pressman did, if he wished , continue to operate the old speed In another
connection, however, he testified that in his entire 4-year experience as
leadman, he never had problems with any employee and that employees
had never refused to do, or raised questions about, what he asked Cooper,
Respondent 's vice president, testified that the employees followed
Kubasiak 's instructions to change jobs "with great allegiance "
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations While some employees made the same
corrections, it was on their own machines and did not
involve directing others, as was the case with Kubasiak.
Kubasiak also exercised authority to allow employees to
leave early Respondent's lenient policy in this regard may
have made Kubasiak's job easy in this respect, but he was
responsible for using proper judgement when allowing an
employee to leave. On the basis of the large portion of his
time spent directing others and his exercise of discretion in
having corrections made and allowing employees to leave
early, it is found that Kubasiak was a supervisor."
While Dclagarca initiated the conversation, he only
asked Kubasiak about the Union. That Respondent would
cancel overtime was not responsive to Delagaria's
question
It is hound that Respondent threatened to cancel
overtime if the Union became the employees'
representative it is further found that Respondent thereby
violated Section 8(a)(l) of the Act
5. Within the 2-week period before the election a
conversation took place in Badal's office between Badal
and Juan Gaytan. Badal had Texidor on hand to act as
interpreter. Juan Gaytan was an employee who, as Badal
knew, had many friends among the employees who were
recent immigrants and whom he had brought to the plant.
He testilied as follows Having been sent to the office by
his leadman, he asked when he arrived there what it was
all about. Badal informed him that he wanted to know
what the employees he worked with were saying about the
election and whether they would vote for or against the
Union When he professed ignorance, Badal told him ". .
that I should talk to the people to see whether they were
convinced .. ," and that he himself replied that he could
not control their opinion. Juan Gaytan also testilied that
he raised two questions with Badal. First, he asked why
employees with less service than he were getting more pay.
He testified that Badal replied that after the election he
would be earning more than those others. Second, on
cross-examination he said that he told Badal that
DelagarLa had told Jaime Guide, the employee Gaytan
worked with, that the Union would win the election by
bringing strangers in to vote, and that he asked Badal if
that was possible but got no answer. Badal testified that
Juan Gaytan had initiated the interview, stopping Badal
on the factory floor to request him to summon Texidor to
act as interpreter about something. Badal testified that
there was no interrogation about how Juan Gaytan'~
friends viewed the election, or any request that Gaytan
convince them, and he denied saying that employees
would have less work if they voted for the Union. Badal
stated that in reply to Gaytan's question about the Union
bringing outsiders in to vote, he told Gaytan of the
eligibility requirements. called his attention to the posted
notice, and asked Gaytan to explain these matters to his
friends among the employees. As to earnings, he stated
that he explained to Gaytan that there was some overlap
among the wage progressions, and that later he would he
earning more than some employees who at the time had
"There is no evidence that the employees were aware that Kubasiak's
assignment of work, including overtime , was pursuant to Badal 's detailed
instructions Moreover the employees were aware that he attended
meetings with supervisors and management Respondent thus gave
Kubasiak the appcaranLc of being the individual through whom
Respondent controlled their entire workday rho record establishes that his
instructions were always followed without question E.vcn if Kubasiak was
not a supervisor , therefore , his threat that Respondent would cancel
overtime if the Union won the election would reasonably appear to the
employees to be a threat by Respondent
greater earnings than Gaytan Texidor corroborated
Badal.
When asked on cross-examination whether he knew
Jaime Guide. Juan Gaytan first replied, "1 don't talk
much with the people there." Pressed, he stated. "I think
I recall that that was an employee who left for Mexico "
It subsequently developed, and Gaytan admitted, that the
two men had worked closely together The Trial Examiner
infers that Gaytan's original vagueness about his job
partner was an attempt to evade the significant issue of
Guide's involvement in the subject matter of his
conversation with Badal and has therefore credited Badal's
testimony that Juan Gaytan initiated the interview.1s In
view of this evasiveness and the lack of corroboration of
Juan Gaytan's testimony, it is found that the General
Counsel has failed to prove by a preponderance of the
credible evidence that Badal interrogated him or
threatened that the employees would lose work if they
voted for the Union As to the question raised by Juan
Gaytan concerning his wages, the Trial Examiner has
credited Badal's version of his response and finds that it
was not a promise of benefit
IV Ttir FEEECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
It is found that the activities of Respondent set forth
above in section 111, occurring in connection with its
operations described in section I, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V. rub REMEDY
As it has been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
the Board issue the recommended order set forth below
requiring Respondent to cease and desist from said unfair
labor practices and take certain affirmative action which
will effectuate the policies of the Act
The Union has requested that a union representative
and a Board representative be permitted to address the
employees at Respondent's plant to assure them of their
rights, claiming that Respondent "engaged in a
reprehensible campaign of intimidating and terrifying its
Spanish-speaking employees " The Trial Examiner
considers this description an exaggeration and sees no
basis for the exceptional remedy requested.
Vi. THE REPRFSFNTAIION PROCEEDING
On the basis of the findings of section III, B, 1 and 3 in
this Decision it is recommended that Objections 6 and 7
be sustained. On the basis of the findings in section III, B,
3 and 4 it is recommended that Objection 8 be sustained.
As it has been found that Respondent interfered with the
employees' free choice in the election and engaged in
conduct which tended to affect the results of the election,
as alleged in Objections 3, 6, 7, and 8, it is recommended
that the Tally of Ballots be vacated and the election set
aside and a new election held at an appropriate time to be
determined by the Regional Director.
Upon the basis of the foregoing findings of fact and of
"Guide had gone to Mexico and was not readily available as a witness
FIELD CONTAINER CORP.
the entire record in this case the Trial Examiner makes
the following :
CONCLLSIONS Oi LAW
1 Respondent , Field Container Corporation , is engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. Printing Specialties and Paper Products Union No.
415, affiliated with the International Printing Pressmen
and Assistants ' Union of North America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
4 Respondent ' s leadman in the cutting department is a
supervisor within the meaning of Section 2(11) of the Act.
5. By interfering with, restraining , and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6 The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended. Respondent, Field Container
Corporation, its officers, agents, successors. and assigns,
sh all.
1 Cease and desist from:
(a) Interrogating employees concerning their union
membership or desires in a manner or under
circumstances constituting interference, restraint or
coercion within the meaning of Section 8(a)(I) of the Act
(b) Promising employees economic or other benefits in
order to induce them to vote against Printing Specialties
and Paper Products Union No. 415, affiliated with the
International Printing Pressmen and Assistants' Union of
North America, AFL-CIO, or any other labor
organization or in order to discourage its employees from
becoming or remaining members of. or giving assistance
or support to, such labor organization
(c) Threatening employees with reprisals because of
their activities on behalf of the Union.
(d) In any like or related manner interfering with,
restraining, 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 policies of the Act:
(a) Post at its office and place of business at Elk Grove
Village, Illinois, copies of the attached notice marked
"Appendix."" Copies of said notice. on forms provided by
the Regional Director for Region 13, alter being duly
signed by its representative, shall be posted 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 to
ensure that said notices are not altered, defaced, or
covered by any other material.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner ' in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
543
(b) Notify the Regional Director for Region 13. in
writing. within 20 days from the receipt of this
Recommended Order, what steps Respondent has taken to
comply herewith.'"
IT IS ALSO RECOMMENDED that the complaint be dismissed
insofar as it alleges labor practices not specifically found
in this Decision.
Court of Appeals, the words "a decree of the United States Court of
Appeals enforcing an Order" shall be substituted for the words "-a
Decision and Order "
"in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE 10 ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that
WE WiL I Nor promise you benefits in order to induce
you to vote against Printing Specialties and Paper
Products Union No. 415, affiliated with the
International Printing Pressmen and Assistants' Union
of North America , AFL-CIO, or any other labor
organization.
WE WILL NOT question you about your union
activities or your attitude towards the Union.
WE WILL NO'I threaten you with reprisals because of
any activities on behalf of the Union.
WE WILL respect your rights to self-organization, to
form, join , or assist any labor organization, and to
bargain collectively in respect to terms or conditions of
employment through the Union or any other
representative of your own choosing, and WE WILL
NOT interfere with , restrain or coerce you in the
exercise of these rights , except insofar as these rights
could be affected by a contract with a labor
organization, if validly made in accordance with the
National Labor Relations Act, whereby membership in
a union is a condition of employment after the 30th day
following the date of such contract or the beginning of
such employment , whichever is later.
PRIN rING SPFCIALTIES AND
PAPER PRODUCTS UNION
Dated By
AFFILIATED WITH
INTERNATIONAL
PRLSSMEN AND
UNION or
AMERICA,
ASSISTANTS
NORTH
AFL-CIO
(Employer)
No. 415,
FHE
PRINTING
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directly with the Board ' s Regional Office, 881 U.S Dearborn Street, Chicago, Illinois 60604, Telephone 312 -
Courthouse and Federal Office Building, 219 South 353-7570.