Hoerner Boxes, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1962

137 N.L.R.B. 1487 (N.L.R.B. 1962)

HOERNER BOXES , INC. 1487
Hoerner Boxes , Inc: and International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, AFL-CIO. Case No. 17-CA-
1862. July 19, 1962
DECISION AND ORDER
On May 15, 1962, Trial Examiner Max M . Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner?
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
i The Respondent 's name appears as amended at the hearing.
z The complaint , as amended, alleges five separate violations of Section 8(a) (1) of the
Act. The first one deals with Palmer's threat to discharge Murray if the Union should
prove unsuccessful . The Trial Examiner finds only generally that the conduct relied upon
to support the allegation of interference , restraint , and coercion was neutralized during
the course of events by the Respondent . He makes no specific findings or conclusions as
to the separate 8(a) (1) allegations . We agree that , as to the threat hereinabove men-
tioned , Respondent , by its subsequent conduct, neutralized the effect of that threat, and
we therefore affirm the Trial Examiner 's dismissal as to that allegation . As no testi-
mony was taken or offered regarding the remaining 8(a) (1) allegations, we summarily
dismiss the complaint as to those allegations , and thus adopt the Trial Examiner's recom-
mendation to dismiss the complaint in its entirety.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding upon an amended complaint issued January 31 , 1962 , against
Hoerner Boxes, Inc., herein also called the Respondent or the Company , involves
Section 8 (a)(1) and ( 3) allegations and was initiated upon a charge filed October 4,
1961, by International Brotherhood of Pulp , Sulphite and Paper Mill Workers,
AFL-CIO, herein also called the Charging Party or the Union. The hearing was
conducted on March 8 , 9, and 10, 1962, at Springfield, Missouri , before Trial
Examiner Max M . Goldman. The Respondent presented oral argument and the
General Counsel filed a brief.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
137 NLRB No. 166.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Hoerner Boxes , Inc., a corporation , with its principal office and place of business
at Keokuk, Iowa, is engaged in the manufacture of corrugated shipping containers
in from about 12 to 14 plants in various States of the United States, including its
plant at Springfield , Missouri , the only plant involved in these proceedings. In the
course of its business operations , the Respondent annually ships goods, materials,
and products valued in excess of $100,000, directly to destinations outside the
States from which said shipments are made, including goods and materials valued
in excess of $50,000, shipped to the Springfield plant directly from outside the State
of Missouri. It is conceded and the Trial Examiner finds that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
International Brotherhood of Pulp , Sulphite and Paper Mill Workers, AFL-CIO,
is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events
This proceeding concerns the discharge of employee Ray Murray on September 29,
1961, the General Counsel alleging that the discharge was discriminatory, and the
Company taking the position that the discharge was for cause: namely, that shortly
before the discharge, it had learned that Murray, its maintenance man, had inten-
tionally withheld certain machinery from service which had been in working order
and had damaged other machinery in order to upset Plant Superintendent Eugene
Palmer. The Company also asserts that Murray had a poor attitude as an employee.
Murray started with the Company as a production employee at $1.25 an hour in
February 1960, about the time the Company opened the plant involved in Spring-
field. After a few weeks, there was an occasion when Murray repaired the starter
on the Towmotor, a materials handling machine, and Palmer assigned Murray to do
the maintenance work at the plant, a field in which Murray had received prior
training. By February 1961, Murray was paid $1.89 an hour plus a man-hour
production bonus which 1 month almost reached $100. This bonus was related to
production of the plant and would presumably act as an incentive to keep the
machinery operating at maximum capacity. Murray took training courses regarding
the production machines and had occasion to redesign one of these machines to
increase productive capacity substantially. There appears to be no question as to
Murray's competence in his work. During at least his early period the Company,
Murray had been commended by management. Murray and Palmer had known
each other from childhood and Murray suggested to Palmer not to let their friend-
ship interfere with Palmer's business judgment regarding Murray and to treat him
as any other employee.
On June 6, 1961, a consent representation election was conducted among the
Company's employees in which the Union was successful. Murray had concededly
been responsible beginning several months earlier for obtaining the union authoriza-
tion cards necessary for the election. Directly after the election Murray was elected
president of the Union. Murray, among others, attended bargaining sessions be-
ginning in July through September 28, the day before his discharge. A mediator
was present at the September 28 meeting, and the parties were unable to reach an
agreement. The Company is under contract with other labor organizations at other
of its plants and had, about September 23, renegotiated a contract with the Union,
as it had for many years past, at its Keokuk, Iowa, plant, the location of its general
offices.
In April during the course of his organizational activities, according to Murray's
credible testimony, when Palmer found out that Murray was the leader of the Union,
Palmer told Murray that he had a great future with the Company, that when the
plant grew Murray would be assistant superintendent, but if the plant did go
union they would have to get rid of Murray. In a negotiation session during
August, while various officials of the Union and the Company were present, em-
ployee Betty Archer, treasurer of the Union, inquired whether union members
would suffer discrimination. Erman Boyd of the Company's general office, who
is engaged in the Company's labor relations work, assured Archer that the Company
would not engage in such a practice. Murray thereupon stated that Palmer had
HOERNER BOXES, INC. 1489
threatened him, and Richard Casady, plant manager and Palmer's superior, declared
that Palmer had done that through inexperience and suggested that the incident be
forgotten.'
While Murray was on vacation between about September 2 and 12, he visited the
Company's Sand Springs, Oklahoma, plant and helped organize that plant by
obtaining authorization cards from those employees in preparation for a Board
election there. After Murray returned to the Springfield plant from his vacation,
according to Palmer's credible testimony , Murray volunteered that he had enough
cards at the Sand Springs plant to file a petition.2
Murray was discharged in the afternoon of September 29. Present at the time
were Palmer, Casady, and Al Penny, a leadman. Casady then told Murray that the
Company had evidence that Murray had purposely kept equipment out of service
and that he was not at liberty to disclose anything further.
The Company explains Murray's discharge as the culmination of, among others,3
the following events. Beginning about mid-March 1961, as shown by the cor-
respondence, there was a letter from the Company's main office to the vendor of
the Towmotor forklift complaining about the machine's performance and service
problems. After certain communications which also involved the manufacturer
of the device, about the end of July, William Scott, a manager of the Towmotor
sales representatives for the area which includes Springfield, arrived at the plant
and saw Palmer. Palmer referred Scott to Murray as the man who maintained
the Towmotor. After some conversation, according to Scott, Murray confided
that the machine was not out of service as much as appeared, that he sometimes
told Palmer the Towmotor was down when it was not inoperative just to see
Palmer get excited and go up in the air, and that if Palmer found the machine
working thereafter he told Palmer that he had gotten it fixed. Also, according to
Scott, Murray told him that at one time he ground down the distributor so that it
would not make contact with the points. Further, that if Scott repeated any of this
to the company officials Murray would call Scott a liar. Murray testified that he
did not make the statements attributed to him by Scott and that the contents of the
statements were not true. Scott testified that Murray also stated that he was not given
sufficient time to maintain the equipment properly, that he was interested in main-
taining the Towmotor and was going to take the parts book home to study, and that
be, Scott, thought that Murray had gotten his own complaints aired, that Murray
would cooperate, and that the problem was solved. Scott did not repeat the con-
versation he testified he had with Murray until shortly before Murray's discharge.
The Towmotor thereafter gave further trouble and one of Scott's servicemen spent
about 2 days working on the machine just prior to the beginning of Murray's vacation
about September 2. On September 20, the Company's superintendent of mainte-
nance, Bernard Deiling, who is associated with the general offices at Keokuk, visited
the plant and inspected the Towmotor and the production machinery. Deiling found
that the Towmotor was giving trouble again as the ignition points were not firing
properly and noted some difficulty with the hydraulic system. Scott 's serviceman's
report noted the replacement of the points and work on the hydraulic system.
Deiling also took up with Murray the poor condition of the production machinery
which Deiling attributed to poor maintenance.
• A few days later Deiling called the Company's vendor of the Towmotor and com-
plained about the difficulties. The vendor wrote the Towmotor people, who in turn
got in touch with Scott around September 24. On September 27, Scott telephoned
Casady. Scott then informed Casady what Scott testified Murray had stated in con-
fidence during the July visit, namely that Murray had ground down the distributor at
one time , and that Murray had told Palmer the Towmotor was down when it was not
in fact so that he could see Palmer get excited. This call was followed by a letter
from Scott received by the Company on September 28, containing ,the same assertions.
Casady took the subject of Scott's telephone call up with Palmer. Part of this
discussion took place in the sample room in the presence of Thomas Means, time-
keeper and shipping clerk. When Means heard about the Towmotor, he volunteered
an incident involving Murray and a production machine known as a general taper.
' Palmer denied having made the remark to Murray In view of the transaction at the
August negotiation session, which is undenled, Murray's testimony is credited.
9 Murray's version is that Palmer had asked Murray how the campaign was going at
Sand Springs. As Murray did not impress the Trial Examiner as a man who would re-
frain from disclosing his accomplishments, Palmer's version is accepted as the more likely
of the two.
8 The Company adduced evidence of other events in support of its position, which in
view of the recommended disposition of this proceeding, is unnecessary to pass upon
649856-63-vol. 137-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This machine had been down fora day about a month earlier and had been repaired
by an electrician who had been called from town. Means reported to Palmer and
Casady that Murray had stated to Means sometime after the event that Murray had
found out during the morning of the breakdown of that machine what was wrong
with it, and that Murray did not make the repair then in order to get Palmer excited.
As already noted, Scott's letter was received the following day, September 28. On
that day, too, Boyd arrived at the plant for negotiations with the Union. Boyd was
told of the Murray situation and shown Scott's letter. Boyd also interviewed Means,
and Means repeated to Boyd what he had told Palmer and Casady. Murray was
not asked whether these reports were true, the belief being that Murray would
merely make a denial. As Murray was president of the Union, the entire matter was
taken up with top management and the discharge was thereafter executed as above
related.
B. The conclusions
It is unnecessary here to resolve issues raised by Murray's testimony denying hav-
ing engaged in the acts involved or that he had told others that he had engaged in-
those acts. The Company did have difficulty with the Towmotor and the general
taper, and had no reason to doubt the veracity of both Scott and Means. All that is
required here is a decision as to whether the Company chose to believe the derogatory
reports about Murray which had come to it because of antiunion motivation In
view of the paucity of evidence of union animus, and the absence of reasons for the
Company to doubt the reports that had been volunteered about Murray, no illegal
interpretation may be placed upon the Company's conduct in discharging Ray
Murray on September 29, 1961. Accordingly, it will be recommended that the alle-
gation of discrimination be dismissed. Further, as the conduct relied upon to support
the allegation of interference, restraint, and coercion was neutralized during the
course of the events by the Company, when through Boyd and Casady there was
a clear declaration of a policy of noninterference. it will be recommended that this
allegation be dismissed as well
Upon the basis of the forgoing findings of fact and conclusions, and upon the
entire record in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent had not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act as alleged.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the complaint be dismissed in
its entirety.
Southern Illinois Sand Co., Inc . and Local 520, International
Union of Operating Engineers, AFL-CIO. Case No. 14-CA-
2576. July 19, 1962
DECISION AND ORDER
On March 16, 1962, Trial Examiner Sidney Sherman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
137 NLRB No. 146.