Interstate Folding Box Co.

National Labor Relations Board - Board Decisions

Feb 27, 1943

47 N.L.R.B. 1192 (N.L.R.B. 1943)

In- the Matter of INTERSTATE FOLDING Box COMPANY and INTERNA-
TIONAL BROTHERHOOD OF PULP, SULPHITE & PAPER MILL WORKERS,
LOCAL #450, AFFILIATED WITH THE A. F. OF L.
'Case No. C-2362.-Decided February 07,19413
Jurisdiction : container manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: assisting -unaffiliated organization by:
anti-union statements ; statements of preference ; delaying the banning of
membership solicitation in plant and proclamation of neutrality until assured
that it had secured a majority ; and quickly recognizing and executing a col-
lective bargaining contract with it on the basis of a card check in disregard
of advice from Board agent that tinder the circumstances a card check should
not be accepted as proof of majority.
Company-Dominated Union: charges of, dismissed
Remedial Order: Employer ordered to cease giving effect to contract with assisted
organization and to withdraw and withhold recognition from it as collective
bargaining representative until such time as it should be certified 'by the
Board.
DECISION
AND
ORDER
On October 7, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act and recommended that it
cease and desist therefrom and take certain affirmative action as set
out,in the copy of the Intermediate Report attached hereto. The
Trial Examiner also recommends that the complaint be dismissed
insofar gas it alleged violation of Section 8 (2) of the Act. There-
after the Union filed exceptions to the Intermediate Report and re-
quested oral argument before the Board. The respondent and
Mutual filed briefs with the Board. The respondent's counsel at the
hearing, Jerome Goldman, filed a request with the Board to modify
that part of the Intermediate Report which found that the respond-
ent had violated Section 8 (1) of the Act by his interrogation of
employees prior to the hearing. Pursuant to notice served on all
parties, a hearing for the purpose of oral argument was held before
the Board in Washington, P. C., on February 4, 1942. The respond-
47 N L. R. B., No. 144
1192
1
INTERSTATE FOLDING BOX COMPANY 1193
ent and Mutual were represented by counsel, the Union by its repre-
sentative, and all participated in the argument. The Board has con-
sidered the rulings of the Trial Examiner at the hearing and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the ex-
ceptions, the briefs, the request of Jerome Goldman, and the entire
record in the case and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except in the respects listed
below :
1. The Trial Examiner found that one Robert Nye, a foreman,
questioned the employees concerning their union membership; advised
one employee not to pay dues to the A. F. of L. because the A. F. of L.
"would walk off and leave [the employee] sitting without a job"; ad-
vised the same employee that he was "on the wrong side of the fence,"
but that if he would do what Bill Uhl told him (sign Mutual petition)
he would get along a lot better; instructed one employee that he would
not get a raise as long as he belonged to the Union and that he would
have to join the Mutual in order to get a wage increase ; informed an-
other employee that he "was going to fool around and get the
A. F. of L. in there and Mr. Bergstein was going to board the place
up"; and stated further to still another employee that "Bergstein
would not recognize the Union," and that if the A. F. of L. got in
there, Bergstein "would close the shop and rent the machinery out."
We find, as did the Trial Examiner, that the foregoing activities are
chargeable to the respondent and amounted to interference with the
employees in the exercise -of the rights guaranteed them in Section 7
of the Act.
We also find that the effect of these activities on the employees at
that time was more extensive than the finding of the Trial Examiner.
Not only did Nye's activities discourage membership in the Union, but
expressly demonstrated employer preference for Mutual thereby en-
couraging membership in that organization. While we agree with
the Trial Examiner that the evidence as a whole does not warrant a
finding that the respondent dominated Mutual within the meaning of
Section 8 (2) of the Act, the evidence does show that the conduct of the
respondent, carried on by Nye, constituted unlawful assistance to
Mutual within the meaning of Section 8 (1) of the Act and we so find.
We regard as more than a mere suspicious circumstance the fact
that the respondent delayed banning membership solicitation in the
plant and proclaiming its alleged neutrality towards labor organiza-
tions until it had received verbal assurance from Mutual that the
latter was ready to submit its evidence of majority to a check, and we
are not unmindful of the short period of time within which Mutual
accomplished, not only its formation, but an exclusive bargaining
contract with respondent. We find that this conduct, viewed in its
1194 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
context, was a phase of the respondent's unlawful assistance of Mutual.
Prior to the execution of this contract, the Regional Director advised
the respondent in' writing that under such circumstances it should not
accept the results of the card check as proof of Mutual's majority
status. In disregard of this advice, the respondent accepted the re-
sults of the card check and immediately granted recognition and a
contract to Mutual. This determination on the part of the respondent
to utilize the "quickest" method of determining the majority status
of Mutual, contrary to the advice of the Regional Director and at a
time when charges were pending, particularly when contrasted' with
its opposition to the Union, constitutes further evidence of respond-
ent's desire to favor Mutual. Respondent's defense that it acted
hastily because of the threat of pressure by Mutual is not, substantiated
by the record.
In view of this unlawful -aid and assistance, we are unable to find
that the employees, in selecting, Mutual to represent them, exercised
that full and complete freedom of choice guaranteed them by the Act.
Accordingly. %ye shall order. that the respondent withdraw and with-
hold recognition from Mutual as the representative of any of its em-
ployees for-the purposes of collective bargaining until such time as,
Mutual may be certified as their representative by the Board.' Since
the contract of November 12, 1941, made with Mutual perpetuates the
respondent's unlawful assistance to Mutual, we shall further order the
respondent to cease giving effect to it, as well as to any extension,
modification, renewal or supplement thereof or to any superseding
contract with said organization which may now be in force. Nothing
in the order shall be interpreted to require the respondent to reduce
wages or establish working conditions less favorable than were estab-
lished pursuant to the contract or any extension, renewal, modification,
supplemental or superseding contract.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of, the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Interstate Folding Box Com-
pany, its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Recognizing or in any manner dealing with Employees Mutual
Benefit Association, as the representative of any of its employees- in
1 See N L R B. Y Condenser Corporation of America, 1 28 F (2d ) 67 (C C A 3) modi-
fying and enforcing Matter of Condenser Corporation of America and Cornell -Dubilier Elec-
tric Corporation and United Electrical and Radio Workers of America, etc , 22 N. L. R. B.
347; Eagle -Picher Mining & Smelting Co. v. N . L R. B., 119 F. ( 2d) 903 ( C. C. A. 8) en-
forcing as modified Matter of Eagle-Picher Mining & Smelting Company, a corporation, and
Eagle-Picher Lead Company , a corporation and International Union of Mine , Mill & Smelter
Workers , Locals Nos. 15, 17, 10 7 , 10S, and 111, 16 N. L. R. B. 727.
INTERSTATE FOLDING BOX COMPANY., 1195
respect to grievances; labor-, disputes, wages rates of pay, hours of
employment, or other conditions of'employment, unless and until that
labor organization shall be certifie'd'as such by the National Labor
Relations Board ;
- (b) Giving effect to the contract of-November 12, 1941, with Em-
ployees Mutual Benefit Association, or to any extension , renewal,
modification, or supplement thereof, or to any superseding contract
with said organization which may now be in force;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing and to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual aid.
or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Employees Mu-
tual Benefit Association, as the representative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until that labor organization
shall have been certified as such by the National Labor Relations.
Board, provided that nothing in this Order shall be interpreted to
require the respondent to reduce wages or establish working conditions
less favorable than were established pursuant to the contract;
(b) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days from
the date of posting notices to its employees stating. (1) that the re-
spondent will not engage in the conduct from which it is ordered to,
cease and desist in paragraphs 1 (a), (b), and (c) of the Order and
(2) that the respondent will take the affirmative action set forth in
paragraph (2) (a) of this Order;
(c) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent violated Section 8 (2)
of the Act.
MR. WM. M. LEISERsoN took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Benjamin E. Cook and Mr. Thomas E Shroyer, for the Board.
Mr. Jerome Goldman, of Cincinnati, Ohio, for the respondent.
Mr. Elliott D. Levey, of Middletown, Ohio, for the Mutual.
Mr. Keith Wentz;,of Hartford City, Ind., for the Union.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a third amended charge duly filed on July 1, 1942, by International
Brotherhood of Pulp, Sulphite & Paper Mill Workers Local #450, 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 Ninth
Region (Cincinnati, Ohio), issued its complaint dated July 1, 1942, against Inter-
state Folding Box Company, 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 (2) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and notice of hearing thereon were duly served upon the respond-
ent, the Union and the Employees Mutual Benefit Association, herein called the
Mutual, a labor organization alleged in the complaint to have been dominated
by the respondent.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that the respondent on or about October 1, 1941, and at all times thereafter,
threatened to close its plant if the Union succeeded in organizing its employees ;
made disparaging and derogatory remarks to its employees about the Union, its
leaders, organizers and purposes ; stated to its employees that their concerted
activity for, and membership in the Union would result in loss of employment,
reduction in earnings and other discriminatory treatment; posted in its plant
written matter for the purpose of influencing its employees against the Union
and interfering with the employees' free choice of a collective bargaining repre-
sentative; disparaged the advantages to be gained from membership in an "out-
side" labor organization ; and urged, persuaded and warned its employees to join
the Mutual and refrain from assisting, becoming, or remaining members of the
Union; (2) that the respondent's officers, foremen, assistant foremen, and other
agents solicited and encouraged membership in the Mutual ; organized, planned
and assisted in the organization of the Mutual ; held office in the Mutual and
served as members of its grievance and bargaining committees ; permitted the
Mutual's leaders to leave their employment to transact business for the Mutual
without loss of pay; recognized the Mutual and contracted with it without the
customary preliminary negotiations; (3) by the above statements and conduct
the, respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
The respondent filed an answer dated July 21, 1942, admitting the jurisdic-
tional allegations of the complaint, but denying that it had committed any of
the unfair labor practices alleged: ,
On July 10, 1942, the Mutual filed with the Board's Regional Director at Cin-
cinnati, Ohio, a motion for leave to intervene in these proceedings. On July 11,
1942, the Regional Director granted this motion. On August 1, during the course
of the bearing before the -Trial Examiner, Mutual filed an answer denying in
general terms that the respondent had committed the unfair labor practices
alleged.
Pursuant to notice, a hearing was held at Middletown, Ohio, on July X23 and 24,
and from July 29 to August 4, 1942,' before the undersigned, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the respondent, and ,
the Mutual were represented by Counsel, the Union by its representative, and all
participated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. On the first day of the hearing the respondent filed a written
' The undeisigned without objection granted the Mutual's motion for a continuance from
July 24 to July 29, 1942.
INTERSTATE FOLDING BOX COMPANY 1197
motion to strike certain allegations from the complaint on the ground that even if
true the activities alleged therein were neither unlawful nor improper At the
same time, the respondent filed a written motion to dismiss the complaint on the
ground that it had issued without proper investigation of the charges upon which
it is based. These motions were denied. At the beginning of the hearing, the
undersigned, without objection granted the respondent's request for a separa-
tion of the witnesses. At the close of the Board's case, the respondent and the
Mutual moved to dismiss the complaint for lack of sufficient evidence. These
motions were denied At the close of the hearing, the undersigned without
objection granted the Board's motion to conform the pleadings to the proof. At
the conclusion of the hearing all, parties were advised that they might argue
orally before the undersigned and file briefs with him Counsel for the Board
and the respondent, and the Union's representative argued the matter orally
before the undersigned The respondent and, the Union filed briefs with the
undersigned. Counsel for the Mutual waived the right to argue orally and to
file a brief. After the close of the hearing, counsel for the respondent filed with
the undersigned a written motion to dismiss the complaint For the reasons
hereinafter set forth, this motion is hereby granted as to the allegations of, the
complaint that the respondent interfered with, dominated and supported the
Mutual, and is hereby denied as to the allegations of the complaint that the
respondent Interfered with, restrained, and coerced its employees in the exercise
of their rights to self-organization and collective bargaining.
Upon the entire record of the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, Interstate Folding Box Company, is an Ohio corporation having
its principal office and place of business at Middletown, Ohio, where it is engaged
in the manufacture and sale of folding boxes, bags, interlined containers and
other packing material. During the 12-month period immediately preceding the
hearing, the respondent purchased and had slipped into the State of Ohio, raw
materials valued in excess of $200,000. During' the same period the respondent
shipped from its Middletown, Ohio, plant to points outside the State of Ohio,
finished products valued in excess of $1,000,000. The respondent stipulated at
the hearing that it is engaged in interstate commerce within the meaning of
the Act. I -
II THE ORGANIZATIONS INVOLVED
International Brotherhood of Pulp, Sulphite & Paper Mill Workers, Local #450,
affiliated with the American Federation of Labor,, is a labor organization admitting
to membership employees of the respondent. ,
Employees Mutual Benefit Association is an unaffiliated labor organization
admitting to membership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A Interference, restraint, and coercion,
In March or April 1941, Keith Wentz, an International representative of the
Union began organizing the respondent's employees. On October 1, Wentz and
a small group of the employees held their first meeting and the employees present
signed membership cards in the Union.
1198 DECISIONS.OF -NATIONAL LABOR, RELATIONS BOARD
Beginning shortly thereafter Robert Nye, then foreman of the, respondent's
printing department, displayed on several occasions his antipathy for the Union.
Ned White testified that in October, Nye asked him if he had joined the Union ;
advised him not to pay clues therein because the Union would be of no benefit to
him and "would walk off and leave me sitting without a fob " White further
testified that about two weeks later, Nye was telling another employee that if his
work,did not improve he would be discharged, and that Nye called White over and
said "this is for you too" and, after telling White that his work had always been
satisfactory, added that White was "on the wrong side of the fence," and stated
"I want you to remember, Ned, that you could go the same way." According to
White, Nye also reminded him that Bill Uhl had talked to him "of signing a paper"
and stated that if White did as Uhl told him, he "would get along a lot better."
White testified that the only paper Uhl ever asked him to sign was one supporting
the Mutual. According to White, Nye also talked of other plants "that the
A F. of L had ruined " Glenmore Hill testified that in October or November Nye
stated that "we was going to fool around and get the A. F. of L. in there and Mr.
•Bergstein was going to board the place up " 2 Clyde Maxwell testified that in
November Nye stated that "Bergstein would not recognize the Union" and that
"if we got the A. F. of L. in there, he would close the shop and rent the machinery
out." Robert Banks testified that on February 4, 1942, Nye told him that he
could not give Banks a raise as long as he belonged to the Union, that he would
have to join the Mutual in order to get a wage increase, that all the employees
had to join lip, that everything the union members said "goes to the office" and
that Samuel Beigstein "won't stand for a union" and that he "would board the
place up."
Nye is no longer employed by the respondent and did not appear as a witness
at the hearing 3 It is admitted that Nye was a foreman at the times in question,
,and the respondent makes no attempt to deny responsibility for his conduct.
The undersigned credits the uncontradicted testimony of White, Hill, Maxwell,
and Banks, and finds that Nye made the statements attributed to him by them. -
The respondent contends, however, that an adverse finding should not be
,grounded on Nye's conduct because it was contrary to the respondent's expressed
policy of neutrality ; because almost all of the employees in Nye's department
joined or remained members of the Union; and because several of these em-
ployees testified that they knew that Nye's statements were not expiessive of
the respondent's policy and that they were not influenced by them. This con-
tention is without merit. The question for determination is whether the re-
spondent, through Foreman Nye, interfered with, restrained, or coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act. Evidence
concerning the effect or lack of effect of the respondent's conduct on particular
employees is clearly not decisive of this issue. The reasonable inference is that
anti-union statements, -such as those here made by Foreman Nye, have an
adverse effect on self-organization and collective bargaining.' Notwithstanding
the testimony and circumstances relied upon by the respondent, it is found that
Nye's statements are violative of the Act.
A few days prior to the hearing herein, Jerome Goldman, the respondent's
attorney, as part of his preparation for the trial of this case, interviewed many
2 Sanniel Bergstein is,the respondent 's president. Robert Bergstein is the respondent's
vice president
3 The respondent explains its failure to call Nye on the ground that he was discharged
in cncuiust iices unfavorable to Nye and it was feared that his testimony would not be
'credible
+Matter of A P Parts Corporation, etc,40 N L R B .^,01 , 8t9, matter of Schult Dad
erg, Inc., etc . 28N, L. R. 13 975. 994
INTERSTATE FOLDING BOX COMPANY 1199
of the respondent's employees. Among other things, he asked them if they
were members of either the Union or the Mutual and, if so, which one.
An employer's interrogation of his employees concerning their union member-
ship has repeatedly been held, to constitute interference, restraint, and co-
ercion.' Such interrogation is no less a violation of the Act when done by
counsel ° in preparation for a hearing before the Board 7 - The union membership
of particular employees is of no concern to the employer. Knowledge of such
membership was not essential to the respondent's defense to the complaint herein
While Goldman's interrogation of the employees was not as flagrant a violation
of the Act as that in the cited cases, it nevertheless constitutes interference,
restraint, and coercion within the meaning of the Act. The undersigned so
finds.
The undersigned finds that by Foreman Nye's anti-union statements and Gold-
man's interrogation of the employees regarding their union membership, the
respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranted in Section 7 of the Act.
B. Alleged interfei esce, restraint, and coercion
On October 2, 1941, Wentz notified Robert Bergstein, the respondent's vice
president, that the Union was attempting to organize the plant and that several
of the respondent's' employees had joined the Union Wentz testified that he
stated to Bergstein that the latter's opinions were probably "guided" by "de-
rogatory editorial writers" and that Bergstein replied that his "observation led
him to believe that Westbrook Pegler was about right." Bergstein testified that
lie could not recall making this statement. The undersigned finds that this
statement, even if made by Bergstein, does not constitute interference, restraint
and coercion within the meaning of the Act.
Lassrence Dye testified that shortly after the Union started to organize the
respondent's employees, Irvin Burr, the respondent's plant superintendent, stated
to him thathie had heard rumors that if the Union was successful the plant would
close. Burr testified that Dye asked him if there was anything to the rumor that
Samuel Bergstein would close the plant if the Union came in and that lie told Dye
that he had heard rumors to that effect but that there was nothing to such rumors:
that he had never heard Samuel Bergstein make such a statement ; and that Dye
need not be afraid of his job regardless of what he did with respect to labor
organizations Burr further testified that when employees asked his opinion
about unions, he told them that they "had a head of their own, to use it-I have
nothing to say." Burr's testimony on this point is corroborated by that of John H.
Johnston and Ann Lawson, witnesses for the Board. Johnston testified that he
once asked Burr his opinion about the unions in the plant and that Burr said
"I cannot talk on either side." Lawson testified that she once mentioned her
union membership to Burr and that he replied in effect that that was her "own
business." The undersigned rejects the testimony of Dye, credits that of Burr,
Johnston, and Lawson and finds that Burr did not make the statement attributed
to him by Dye, and that Burr maintained a neutral position with respect to labor
organizations in the respondent's plant -
5 e g Botonij Worsted Mills v N L R 13 , 106 F (2d) 263 (C C A 3) ; N L R B v
Lane Cotton halls , 111 F ( 2d) 814 (C C. A 5 ) ; ifontgonsery Ward cC Co v N L R 11 ;
107 F ( 2d) 555 (C C A 7), No)tla IVhattter Heights Citius Assn v N L R B, 109 F.
(2(1) 76 (C C A 0)
'Matter of Meat Clothing Company, etc ; 30 N L R B 1201 , 1209-10
7N L R B v. Nosnian H Stone, et al 125 F ( 2d) 752 (C C A 7)
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
On October 17, 1941, Samuel Bergstein, the respondent's president, made a
speech to the employees in the plant just after working hours He mentioned
the war, and the possibility, of slack work due to a, shortage of materials. He
demonstrated a new box-making machine which the respondent had just,con-
structed, and stated that if this machine was a success "the future looked pretty
nice.;' He stated that the respondent had, some machines leased out and that it
could save itself a lot of worry and work if it leased all of its machinery out, but
that he did not intend, to do so because he wanted his sons to have the business
and his employees to have the work. He made no reference to labor organizations.
On October 20, 1941, Robert Lergstein made a similar` speech to the employees
The undersigned, finds that the speeches of Samuel and Robert Bergstein were
made without reference to labor organizations, and were not made for the purpose
of interfering with, restraining, or coercing the respondent's employees.
There is some, evidence that anti-union statements were made to certain em-
ployees by Louis Heeg, head pressman in the printing department, and Cecil
Richardson, head machine operator in the gluing department. The nature of the
work done by Heeg and Richardson is exactly the same as that done by Fenbers,
Tillett, and Creech, whose alleged supervisory status is discussed infra, Section.
111, C 2, a. Upon the considerations and for the reasons there set forth in con-
nection with Fenbers, Tillett, and Creech, the und"ersigue& finds that Hoeg and
Richardson were not supervisory employees at the times in question ; that they
could not reasonably be so regarded by the other employees, and that the respond-
ent is not answerable for the anti-union statements made by them.
Chester Brandenburg, testified that on July 23, 1942, Superintendent Burr told
him that overtime woik was discontinued `because of this labor trouble" His
testimony is confused and unreliable and the undersigned does not credit it.
The complaint alleges that the respondent posted in the plant.written materiaL
calculated to influence the employees against the Union There is no evidence.
supporting this allegation. Peicy âIcQuinn, one of the Mutual's officers, some-
time after November 13, 19-11, posted on the Mutual's bulletin board, which is
located adjacent to that of the respondent, a magazine article disparaging the
A. F. of'L. The Mutual's bulletin board, however, was purchased by the Mutual,
was placed on wall space rented by the Mutual from the respondent, and promi-
nently displayed at all times a notice stating:
THIS BULLETIN BOARD SPACE IS RENTED BY THE EMPLOYEES MUTUAL BENEFIT
ASSOCIATION FROM THE INTERSTATE FOLDING BOX COMPANY. THE EMPLOYEES
MUTUAL BENEFIT ASSOCIATION ACCEPTS SOLE RESPONSIBILITY FOR ANYTHING
THAT APPEARS ON THIS BULLETIN BOARD. ANY NOTICE ON THE BOARD DOES NOT,
NECESSARILY REPRESENT THE VIEWPOINT OF THE COMPANY.
The respondent, in,these circumstances, cannot be held responsible for the post-
ing of the derogatory magazine article.
The undersigned finds that the respondent has not interfered with, restrained,-
or coerced its employees by any of the statements or conduct discussed in Sec-
tion III, B of this Intermediate Report.
C. Alleged.interfelence tivith, domination and support of the Mutual
1. Formation of Mutual; respondent recognition of and bargaining with it
Early in October 1941, a group of the respondent's employees started to organ-
ize the Mutual. After several of the, respondent's employees had indicated
8The findings with respect to the content of these speeches ai e bisect upon the Inutually-
corioboiative testimony of witnesses for the Board and the respondent
INTERSTATE FOLDING BOX COMPANY 1201
interest in the Mutual, those who had started the movement decided to set up
a formal organization and retained Elliott D. Levey, a local attorney, to assist
them. According to the testimony of Edward Fenbers,° Roy Creech,, Eunice
Neumyer, Huber Snodgrass, and Percy McQuinn, which the undersigned credits,
Levey was selected voluntarily by the employees because of his experience in
organizing unaffiliated labor organizations at two other Middletown plants.io
The Mutual held its first organizational meeting on October 25, 1941, at the
Junior Hall in Middletown. Levey was present and explained the employees'
rights under the Act. Officers were elected. Between October 25 and 29 the
Mutual conducted an intensive membership drive.
On October 27, the respondent received a letter from the Board's Regional
Director stating that the Union on October 25 had filed charges that the Mutual
was dominated and supported by the respondent.
On the morning of October 29, representatives of the Mutual, together with
Levey, its attorney, called upon the respondent, claimed to represent a majority
of the respondent's employees, and requested that it be recognized as the em-
ployees' collective baiganing representative. The respondent requested proof of
the Mutual's claim and stated that while the respondent would recognize that
Mutual if it proved its claim that it represented a majority, it could not do so
without such proof Levey then suggested that the Mutual's member ship cards
be checked against the respondent's pay roll by some recognized firm of certified
public accountants. The respondent agreed to this suggestion and told Levey to
confer with Jerome Goldman, the respondent's attorney in Cincinnati, Ohio, and
make arrangements with him for a check of the membership cards. Early the
sane afternoon, Levey went to Cincinnati where he and Goldman agreed that
Gano and Cherrington, certified public accountants, should make the check. The
following day, a iepresentative from Gano and Cherrington checked the Mutual's
membership cards against the respondent's pay roll.
On November 1, Gano and Cherrington issued a report showing that a majority
of the respondent's production employees had joined the Mutual. This report
was received by Levey and the respondent on November 3. Gano and Cherring-
ton's fee of $40 was paid, half by the respondent and half by the Mutual.
On November 5, representatives of the iespoident and the Mutual again met
upon the request of the Mutual's attoiiey. The Mutual again requested recog-
nition and negotiations looking toward a contract The respondent stated that
he was satisfied with the card check and agreed to reccgnize'the Mutual as the
sole bargaining representative of its production employees After some discus-
sion concei ning the terms of a proposed contract, it was agreed that Levey should
draft a contract and submit it to Goldman for his approval and that the respond-
ent would sign any contract approved by Goldman Levey, immediately drafted
a contract which was approved by the Mutual's committee and was submitted by
Levey to Goldman on November 6 Goldman, who had likewise drafted a con-
tract, made minor objections to the one submitted by Levey. Levey brought both
drafts back to Middeltown where he and the Mutual's committee redrafted the
° Improperly spelled Fembeis in the transcript of testimony
10 There is some testimony by, Charles Johnson and Robert Banks that Levey at one time
was the respondent's attorney Levey testified that at one time he was associated with
Attorney B F Harwitz who, prior to their association, had represented the respondent,
but that he (Levey) had never represented the respondent in any legal matter, and, that he
had nevoi been employed by the respondent or any of its officers in any capacity Levcy's
testimony is corroboiated by that of Joseph Frank, the respondent's secretary, and Robert
Peigstein, the respondent's, vice president The undersigned rejects the, testimony of
Johnson and Banks, credits the testimony of Levey, F, auk and Bergstein, and finds in
accordance therewith
51$024-4i-Nof 47-76
.1202 DECISIONS OF NATIONAL' LABOR, RELATIONS BOARD
contract to meet Goldman's objections. On November 7, Goldman approved the
contract as finally drafted On November 8 at a special meeting, the members of
the Mutual approved the contract after it had been read aloud and discussed.
On November 12, representatives of the respondent and the Mutual met and signed
the contract after it had again been read aloud and discussed.
2 Activities of Duvall, McQuinn, Creech, Fenbers, and Tillett
The allegations of the complaint that the respondent initiated and dominated
the formation and administration of the 1\1utual and supported it rest largely upon
the participation in its affairs by Edwaid Fenbers, William Tillett, Roy Creech,
Percy McQuinn, and Albert Duvall, who are claimed to be supervisory employees.
Creech, Fenbers, McQuinn, and Duvall were active in the formation of the
Mutual They and Tillett, as well, solicited employees to join. Creech acted as
temporary chairman at the Mutual's first meeting on October 25 Creech and
Duvall spoke at that meeting in favor of the Mutual and against the Union At
various tines Fenbers and McQuinn have been officers of the Mutual. Creech,
Fenbers, Duvall, and McQuinn are members of the Mutual's bargaining committee.
Since the most seriously contested issue in this case is the claimed supervisory
status of the above-named employees, it -is appropriate at this point to examine
the evidence as to the work done by them and their relationship to the respondent
and to the other employees at the plant.
,Duvall is a Class A machinist in the respondent's machine shop" There are
three other Class A machinists in the machine shop All of them including Duvall
are paid the same'hourly rate. None except Duvall is claimed to be a supervisor
Duvall spends all of his time working with his hands either as it pattern maker
or a machinist. He has no power to take or recommend disciplinary action or to
recommend wage increases or decreases. Louis Van Guelpen, who' is in charge
of the machine shop, is sometimes absent from the plant for several days at a
time. Van Guelpen testified that when he is absent from the plant Duvall has no
more authority than the other machinists and that he, like the others, does only
what Van Guelpen tells him to do while Van Guelpen is gone. Duvall testified
that when Van Guelpen is away the machinists know what to do since their work
is laid out for some time in advance. The undersigned credits the testimony of
Van, Guelpen and Duvall and finds in accordance therewith." Several non-
supervisory employees testified that when Van Guelpen is absent they go to
Duvall for anything they want in the machine shop Several foremen of other
departments testified that in such circumstances they do not necessarily consult,
Duvall but, instead, go directly to the person best qualified to perform the work
they want done. Their testimony is corroborated by that of Duvall and Leonard
Back, another Class A machinist. It is found that some employees look to Duvall
for help and guidance because of his seniority and experience, but that his posi-
tion is not such as to require it. Huber Snodgrass and Leonard Back, who work
with Duvall testified that they do not consider him a supervisor.
Creech is a Grade A machine operator, sometimes-, called a head-operator, in
the respondent's coating department. He makes the machines ready to run off a
11 A "Class All rating signifies outstanding experience and ability An employee so
classified is e°pected to do•satisfactonly the most difficult lob assigned to him
12H C Edwards, a class B machinist, testified that when Van Guelpen• goes away he
gives Duvall the "orders of the routine of the shop" and that on such occasions Duvall
"acts as foreman" Edwards was later recalled to the witness stand and testified cxictly
to the contrary Because of this serious conflict in his own testimony the undersigned
cannot credit either version.
INTERSTATE 'FOLDING , BOX COMPANY' ,1203
'Job and puts the machine in operation. Except when he is "making ready" or
"setting up a job", he operates a machine. Ordinarily, only one machine is in
operation'in this department at any given time, and in that event Creech operates
the machine. Occasionally two machines are in operation at a time and at such
times Creech operates one and helps the operator on the other, or if neither
machine is working perfectly, he assists the operator on each of them Usually
there are only'three or four employees in the coating department One employee
in the department, Paul Swope, testified that he considered Creech his superior;
another, Orville Brewer, testified that he did not so consider him. But, as Swope
admitted, Creech has no authority to discipline any employee or to recommend
wage increases. He has no authority to move an employee from one machine to
another except upon Superintendent Burr's instructions. Creech is paid an hourly
rate and shares in a production bonus. Foremen are paid a salary and do not
share in the bonus. If there is no work to be done in the coating department,
Burr sends Creech to the machine shop, shipping gang, stock room, or elsewhere
to do what ever work there is to do. Some witnesses testified that Creech tells,
them what to do and how to do it. But the only instructions he gives are those
necessary to the operation of a particular machine and they are given only to the
employees helping Creech operate the machine. In this respect he is no different
from any ordinary machine operator, none of whom are claimed .to be supervisory
employees.
McQuinn works in the stock room, makes glues, starches, and waxes, and sees
that each machine is properly supplied with these materials. He shares responsi-
bility for the stockroom with Elmer Moore; both McQuinn and Moore can honor
requisitions and both have keys to the' locked-up supplies. The only evidence
that McQuinn has any supervisory functions is the testimony of some Board
witnesses that when work in their department is slack they are sent to the stock
room and McQuinn assigns them a job and tells them how to do it. According
to uncontradicted evidence, which the undersigned credits, if there is no work to
be done in the stockroom, McQuinn cannot send the employees elsewhere to work,
nor does he have any authority to take or recommend disciplinary action, or to
recommend wage increases or decreases. McQuinn is classified by the respondent
as an hourly paid employee in the stock room
Fenber8 and Tillett are Class A machine operators, or head operators in the
gluing department. They, are the mo'st•'experienced and most capable operators
and are expected to handle the most difficult assigments. They make the ma-
chines ready to do a particular job and see that all machines are running properly.
If a machine gets out of adjustment or breaks clown and the operator is unable
to repair it, the head operator assists him. They occasionally help operate the
machines and relieve the various members of the machine crew. They have no
authority over the machine crews during the day shift. During the day the
machine operator is directly responsible to the foreman.
Fenbers and Tillett, as well as two other head-operators in the gluing depart-
ment, take turns working on the nightshift At night neither the department
foremen nor the plant superintendent is regularly present in the plant Before
leaving for the day, however, they give the head-operator orders as to what jobs
to work on, how long to run a certain job, and what machine to start in case of
a breakdown. The head-operator usually conveys these orders to the machine
crew. Foreman Hahn and Superintendent Butr occasionally go to the plant
during the evening to see if everything is going properly. If anything unexpected
occurs during the night, the head-operators have no authority to exercise their
own discretion, but must call Hahn or-Burr for further instructions.
Several witnesses for the Board testified that Fenbers and Tillett tell them
where to work, what to do and give them other instructions, and that the
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees consider Fenbers and Tillett "night bosses." Several witnesses for
the Mutual testified that the employees did not look upon Fenbers and Tillett as
supervisors. The testimony of the Board's witnesses on this point is hardly
credible in view of other evidence, some by Board's witnesses, that some of the
employees have told head-operators "to go to hell," and have told them "plain
out" that their requests will not be complied with, and that employees so ignoring
the head-operators' requests were never disciplined There is also credible evi-
dence that the head-operators, even at- nigl t, give no different instruction and
have no more authority than the ordinary machine operators.
The head-operators have no -authority to discipline employees or recommend
disciplinary action or to recommend wage increases or decreases. They are paid
an hourly rate and share in the production bonus.
Upon the evidence as outlined above the undersigned finds that Duvall,
Creech, McQuinn, Fenbers, and Tillett are not supervisory employees and can-
not reasonably be identified with management It is further found that their
activities in aiding the -Mutual do not constitute unfair labor practices by the
respondent 13
3 Other alleged support
It is claimed that the respondent supported and favored the Mutual by per-
nmtting it to solicit members on company time and property. It is undisputed
that during the month of October the leaders of both the Union, which was also
attempting to organize the employees, and the Mutual busily engaged themselves
in proclaiming the virtues' of their respective organizations and in soliciting
employees to join. Much of this activity by both organizations took placelon
company time and property Some effort was made at the hearing to show that
there was more activity on company time and property by those interested in the
Mutual than by those interested in the Union. The undersigned, however,
upon the-entire record finds that there was no marked difference in the extent
of organizational activity engaged in by the Union and the Mutual. The re-
spondent's foremen testified that they saw the employees engaging in such
activity but that they did not know on behalf of which organization the em- -
ployees were active. In any event the respondent did not discriminate between
the Union and the Mutual in permitting this activity. On October 31, a few
days after it had received notice that the Union had filed charges with the
Board, the respondent posted notices banning all solicitation in the plant clueing
working hours and stating that all employees were free to join any labor
organiz•itioi of their own choosing, and that no discrimination would be shown
against any employee who exercised his right to join or not to join any, labor
organization The undersigned finds that,. under the circumstances of this case,
permitting organizational activity in the plant during working hours does not
constitute support of the Mutual 14
The complaint alleges that the respondent granted the Mutual recognition and
contractual rights without collective bargaining. But recognition was granted
13 Cf Molter of The Norwood Sash and Door Mfg Co, etc, 42 N L R B 678
1411aiy Shoup testified that Duvall took it Mutual membeisbip card from Van Guelpen's
deck and that she signed the said in Van Guelpen's office during working hours, but that
Van Guelpen was not piesant Van Guelpen testified that he had never had any of the
Mutual's cards in his office Duvall testified that lie had a conversation pith Shoup con-
cerning the Mutual ; that the conversation took place abaut 70 feet from Van Guelpen s
office; that he never took a card from Van Guelpen's desk, and that Shou,i did not, to his
knowledge, sign a card at the time in quesiion Madge Bailey, who was present on this
occasion, test fi A that they were not in Van Guelpen's office, and that Duvall had no
Mutual membership caids on that occasion The undersigned credits the testimony of
Burr, Du' all and Bailey, and finds accordingly
INTE'RSTATF FO'LAINIG' BOX COMPANY 1205
only after proof of majority representation and a contract was executed only
after discussion between the Mutual and the respondent and after further
negotiations between the Mutual's and the respondent 's counsel . The record does
not support this allegation of the complaint.
In connection with the respondent's recognition of the Mutual two conten-
tions deserve brief mention It was argued at the hearing that the respondent
was not entitled-to recognize the Mutual on the basis of a mere membership
card check when there was a competing union in the field and charges of dom-
ination of the recognized union were pending This position, so far as the,
instant case is concerned, is untenable. This is not a case where two rival
unions are both claiming to represent a majority and the employer elects to
accept the proof of one and reject that of the other. The Union made no such
claim. In these circumstances the respondent was not required to ignore the
proof submitted by the Mutual. Nor would the mere pendency of charges pre-
clude recognition of the organization alleged to be dominated. If such charges
are meritorious, the breach of the law will be remedied ; if they are ground-
less, the employer in recognizing the organization which has proved its major-
ity has done only what the law requires him to do. The mere filing of charges,
whether 'meritorious or not, does not necessarily and automatically suspend
the obligation to bargain collectively.
It is also claimed that the respondent's payment of half of the cost of the card
check constitutes support. This, however, was not a contribution to the Mutual.
It could not affect the Mutual's representative status, as that had already become
fixed. It might reasonably be asserted, as it is here, that the proper determina-
tion of the validity of a claim to bargaining rights is of as much interest to the
employer as it is to the union and hence both should share the cost. In the under-
signed's view this was not a contribution of support to the Mutual.
There may be cases where recognition upon a card check partially paid for by
the employer, during pendency of charges of domination filed by a rival organiza-
tion would constitute support. But these circumstances are not weighty where,
as here, the usual mndicia of employer domination and support are lacking. The
undersigned finds that the manner in which the respondent recognized and bar-
gained with the Mutual does not constitute support of that organization.
The complaint alleges that leaders of the Mutual were permitted to leave their
employment without loss of pay for'the purpose of transacting the Mutual's busi-
ndss. The only evidence relevant to this allegation relates to an incident which
occurred on December 18, 1941 On that day Huber Snodgrass, president of the
Mutual, asked Foreman Bair of the cutting department if he could spare Kirby
and Wagner, two employees of that department, without interfering with pro-
duction. Bair permitted them to leave and, without punching their time cards,
Kirby and Wagner made "sick calls" on two employees, one a member of the
Mutual, the other a member of the Union. Bair testified that he did not know
Snodgrass was president of the Mutual or that Kirby and Wagner were active
therein. He also testified that Snodgrass did not state why he wanted the men,
that frequently employees in his department were taken to work in other depart-
ments, and that he did not know the men were going to leave the plant. The
undersigned credits Bair's testimony. Superintendent Burr was not consulted
and did not know about Kirby and Wagner leaving the plant. The undersigned
finds that the nature of the mission which took Kirby and Wagner from their
work was unknown to anyone in authority in the plant and that the incident
does not evidence support of the Mutual.
1206 DE'C'ISIONS OF NATIONAL -LABOR ;-RELATIONS[ BOARD
4. Conclusions with respect to alleged interference-with, domination and support;
of, the Mutual -
The respondent 's delay in banning membership solicitation in the plant and in
stating its neutral position with respect to labor organizations until after the
Mutual requested recognition is a suspicious circumstance , and Foreman Nye's
anti-union statements , as set forth in Section III, A , above, may have been of.,
some assistance to the Mutual in its membership drive.16 ' In the view of the
undersigned , however , these facts , considered in the light of all the evidence, do,
not warrant a finding of domination and support . The undersigned is of the
opinion that the record does not contain substantial evidence of domination and
support and finds, therefore , that the respondent has not interfered with or
dominated the formation or administration of the Mutual or contributed ' support
thereto. I
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III A above, occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial relation 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. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair labor
practices,)it will be recommended that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the Act.
• It having been found that the respondent has not dominated, or interfered with
the formation or administration of the Mutual or contributed support thereto, it
will be recommended that the complaint in that respect be dismissed.
It will be recommended that the respondent dissipate the effect of its unfair
labor practices by posting appropriate notices throughout its plant.
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Pulp, Sulphite & Paper Mill Workers, Local
#450, affiliated with the American Federation of Labor, and Employees Mutual
Benefit Association, are labor organizations, within the meaning of Section 2 (5)
of the Act.
2. By interfering with, restraining, and coercing its employees in the exerciser
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section•2 (6) and (7) of the Act.
4. The respondent has not interfered with, dominated, or supported Employees,
Mutual Benefit Association, within the meaning of Section 8 (2) of the Act.
15 The time at which Nye made his anti-union statements is, in most incidents, indefinite.
Some of them were made after the Mutual had been recognized and had negotiated a con-
tract with the respondent.
INTERSTATE FOLDING BOX COMPANY 1207
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Interstate Folding Box Company, its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form, join, or assist labor
organizations; to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act:
(a) Post immediately in conspicuous places in its plant, and maintain for a
period of at least sixty (60) consecutive days from the date of posting, notices
to its employees stating that the respondent will not engage in the conduct from
which it has been recommended in paragraph 1 (a) of these recommendations
that it cease and desist ;
(b) Notify the Regional Director for the Ninth Region in writing within
twenty. (26) days from receipt of this Intermediate Report what steps the re-
spondent has taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid. °
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has interfered with and dominated the formation
and administration of Employees Mutual Benefit Association and has contrib-
uted support thereto
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations' Board, Series 2-as' amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case
to the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D. C., an original and four
copies of a statement in writing setting forth such exceptions to the Interme-
diate 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
four copies of a brief in support thereof. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within twenty (20) days after
the date of the order transferring the case to the Board.
WILLIAM F. GuFFEY, JR.
Trial Emaminer.
a
Dated October 6, 1942.