Lowell Corrugated Container Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 169 (N.L.R.B. 1969)

LOWELL CORRUGATED CONTAINER CORP.
Lowell Corrugated Container Corporation and
United Papermakers and Paperworkers,
AFL-CIO. Case 1-CA-6339
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 18, 1968, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter
the General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
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 this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner 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 this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order, the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Lowell
Corrugated Container Corporation, Lowell,
Massachusetts, its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner's Recommended Order.
In its answer to the complaint, at the hearing , and in its brief, the
Respondent challenges the validity of the Union 's certification by asserting
that the Regional Director ' s findings in the representation proceeding were
arbitrary or capricious , or based on determinations not in conformity with
Board policies or provisions of the Act . Respondent further states that its
refusal to bargain was , inter alia , for the purpose of securing Board review
of the Regional Director ' s findings and certification . We note, however,
that Respondent did not , in the representation proceedings , file with the
Board exceptions or a request for review of the Regional Director ' s Report
on Objections and Certification of Representative, but has waited until this
proceeding to challenge the certification on the grounds recited above.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
169
JAMES V CONSTANTINE, Trial Examiner: This case is an
unfair labor practice case commenced pursuant to Section
10(b) of the National Labor Relations Act, herein called
the Act. 29 U.S.C. 160(b). It was initiated by a charge
against Respondent, Lowell Corrugated Container
Corporation, filed on May 21, 1968, by United
Papermakers and Paperworkers, AFL-CIO, the Charging
Party herein. A complaint based on said charge was
issued against the Respondent on July 1, 1968, by the
General Counsel of the National Labor Relations Board,
through the Regional Director for Region 7 (Boston,
Massachusetts). Said complaint alleges that Respondent
has engaged in conduct violating Section 8(a)(1), (2), (3),
and (5), and that said conduct affects commerce within
the meaning of Section 2(6) and (7), of the Act.
Respondent has answered admitting some facts but
denying that it committed any unfair labor practices.
Pursuant to due notice this case came on to be heard,
and was tried before me, on August 19 and 20, 1968, at
Boston, Massachusetts. All parties were represented at
and participated in the hearing, and had full opportunity
to adduce evidence, examine, and cross-examine witnesses,
file briefs, and offer oral argument. Briefs have been
received from Respondent and the General Counsel.
Respondent's motion to dismiss the complaint was denied
at the hearing.
This case presents the issues of whether Respondent:
(1) Lawfully refused to recognize and bargain with
United Papermakers and Paperworkers, AFL-CIO, herein
called Papermakers. This, in turn, depends on whether the
certification of the Papermakers by the Regional Director
is valid;
(2) Unlawfully assisted the Cleghorn Independent
Employees' Union by deducting sums of money, including
dues, from the wages of its employees on behalf of said
Independent, a minority union, during the time that
Papermakers was certified as the exclusive representative
of said employees;
(3) By deducting the monies described in (2), above,
discouraged membership in Papermakers and encouraged
membership in the Cleghorn Union.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS rO JURISDICTION
Respondent , a Massachusetts Corporation , is engaged
at Lowell , Massachusetts , in manufacturing, selling, and
distributing cardboard cartons and related products.
Annually it receives paper products, machinery, and other
materials valued in excess of $50,000, directly from, and
ships cardboard cartons and related products valued in
excess of $50,000 directly to, points located outside the
Commonwealth of Massachusetts. I find that the
Respondent is an employer as defined in Section 2(2), and
is engaged in commerce within the meaning of Section
2(6) and (7), of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction over the
Respondent in this proceeding.
177 NLRB No. 44
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Papermakers and Cleghorn Independent Employees'
Union, herein called the Independent , each is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal to Recognize and Bargain with
Papermakers
On December 21, 1967, Papermakers filed a Petition
for Certification of Representative in Case 1-RC-9871 for
employees in a unit described as:
All production and maintenance employees employed
by the [Respondent ] at its Bolt Street, Lowell,
Massachusetts, plant, excluding office clerical
employees , plant clerical employees, designers, artists,
truckdrivers , professional employees, guards, and
supervisors as defined in the Act.
The Independent intervened in said representation
proceeding , as it represented the employees involved and
was a party to a collective-bargaining contract covering
said employees . Said contract was due to expire on March
7, 1968. See General Counsel's Exhibit 5.
Thereafter, on January 15, 1968, Respondent,
Papermakers , and the Independent executed an
Agreement for Consent Election , which was approved by
the Regional Director on the next day. On the basis
thereof, an election was conducted on February 8, 1968.
Papermakers received a majority of the votes cast therein;
i.e., 30 out of 58 ballots counted . See General Counsel's
Exhibit 2(b). Subsequently , on February 15, 1968,
Respondent and Independent each filed objections to
conduct affecting results of this election . Following an
investigation , the Regional Director on April 3, 1968,
issued his Report overruling the objections as being
unmeritorious, and, in the same document , certified
Papermakers as the collective bargaining representative of
the employees in said unit . See General Counsel' s Exhibits
2(c) and 2(d).
The Respondent's objections allege that
1. The notices of election as separately posted were in
Spanish and English , the sample ballot thereon and the
actual ballot being bilingual (English /Spanish) with the
exception that the three voting choices on the ballot
were in English only. A substantial majority of the
voting.employees are Puerto Ricans who do not read or
speak English or who do not read Spanish or English
and speak only Spanish . A number of employees are
Portuguese who do not read , write or speak Spanish or
English . The ballots were thus totally unintelligible to
the Portuguese employees and to the Puerto Ricans who
do not read Spanish or English and only partially
intelligible to those employees who read Spanish.
Accordingly, the election could not have reflected the
free choice of the employees.
2. Employees before and after voting continued to mill
about within the immediate polling area and engaged in
conversation in Spanish with employees standing in line
to vote. Some employees were delayed in casting their
ballots until these conversations were completed. By
these and similar acts the election was conducted in an
atmosphere of confusion and under circumstances that
interfered with the laboratory atmosphere required for
the conducting of Board elections.
3. United Papermakers and Paperworkers, AFL-CIO
by its agents and representatives did engage in
electioneering in the polling area.
4. United Papermakers and Paperworkers, AFL-CIO
by its agents and representatives did offer to pay
employees for unscheduled work time on the date of the
election so as to interfere with their free choice in the
election.
5. By these and other acts the free choice of the
employees was interfered with and the election should
be set aside and a new election conducted.
Independent's objections assert that:
1. The changing of the General Manager prior to
election.
2. The voting of an employee who had been terminated
and then rehired after the deadline.
3. Officers of the Cleghorn Independent Employees'
Union sitting in as observers for the United
Papermakers and Paperworkers, AFL-CIO.
4. Area of observers hampered by employees.
5. Observers for the United Papermakers and
Paperworkers, AFL-CIO being paid by the United
Papermakers and Paperworkers, AFL-CIO without loss
of time on the job.
6. Confusion and misunderstanding of ballot by foreign
speaking employees.
About April 24, 1968, Papermakers requested
Respondent to bargain collectively with it as exclusive
representative of the employees in said unit, and also
asked Respondent to supply Papermakers with
information containing: ( 1.) the names and dates of hire of
all employees in said unit ; and (2.) the job classifications
and hourly rates of pay for said employees. Said
information was necessary and relevant for Papermakers
to bargain intelligently . Respondent on May 1, 1968, and
since, has denied said request to bargain and refused to
supply said information, claiming that the Certification of
Papermakers was invalid and of no legal effect because
the Regional Director, in overruling Respondent's and
Independent' s objections , acted arbitrarily or capriciously
and not in conformity with Board policies or the
provisions of the Act.
B. The Checkoff of Dues for Independent After the
Certification of Papermakers
On March 7, 1966, Respondent and Independent
executed a collective bargaining contract , expiring on
March 7, 1968, which covers the employees in the unit
involved herein . See General Counsel ' s Exhibit 5. It has
not been renewed or extended . Among other provisions
this contract contains a "Union Shop" clause (art. 17)
and a "Dues Collection-Checkoff' clause (art. 18). The
latter provides for a deduction of Independent's dues from
wages of employees who authorize such withholding in
writing and remitting the same to Independent by
Respondent . From March 7, 1968, to July 1, 1968, dues
were deducted by Respondent on behalf of the
Independent from the wages of "on the average of nine"
employees (out of 35 to 60 employees in the unit) who had
executed dues authorization forms in March or April,
1967. An example of such form is in evidence as General
Counsel' s Exhibit 4. These dues were transmitted by
Respondent to the Independent each month during such
period of time . No evidence is in the record that any such
checkoff has been revoked or terminated by any signer
LOWELL CORRUGATED CONTAINER CORP. 171
thereof.
During the "contract period" Respondent has complied
with the terms of the Union Shop (art. 17) and Checkoff
(art. 18 ) clauses of the contract between it and
Independent.
IV. CONCLUDING FINDINGS AND DISCUSSION
A. As to the Refusal to Recognize and Bargain with
Papermakers
The parties signed an agreement for a consent election.
At the election held on February 8, 1968, Papermakers
received a majority of the valid ballots counted . Hence, it
was entitled to be certified as exclusive representative of
all employees in the unit involved unless merit was found
in the Respondent ' s or the Independent's objections.
Citation of authority on this aspect of the case would be
supererogatory.
However , since objections were filed it became
incumbent upon the Regional Director to pass upon them;
and his decision thereon , including the preliminary
questions as to the nature of the investigation to be
pursued and whether a hearing should be held on the
objections , is final , subject to a limited review. This is the
rule on consent elections . N. L. R. B. Rules and
Regulations , Series 8, Section 102.62(a); Sumner Sand &
Gravel Company, 128 NLRB 1368, 1370, enfg. 293 F.2d
754, 755 (C.A. 9); N.L.R.B. v. Carlton Wood Products,
201 F.2d 863, 866-867 (C.A. 9).
Nevertheless , the finality of the Regional Director's
decision is not absolute . It may be reviewed by the Board
in specified , but narrow , instances . Thus, the Board has
expressly held that it will not overturn a Regional
Director' s determinations in consent election cases unless
it can be affirmatively established that he was arbitrary,
capricious , or acted not in conformity with Board policies
or the provisions of the Act. Delta Drilling Company, 169
NLRB No. 93 . On this branch of the case the question,
therefore , is whether the Regional Director 's conclusions
as disclosed in his Report on Objections (G. C. Exh. 2(c))
demonstrate that he acted arbitrarily , capriciously, or not
consonant with Board policy or the statutory design as
expressed in the Act.
Preliminarily , it is desirable to point out that
Respondent ' s contentions before me are based on the
evidence previously submitted by the parties to the
Regional Director. No additional evidence was offered by
Respondent at the trial before me. It is true that
Respondent sought unsuccessfully to reintroduce before
me the very same evidence which it had previously offered
to the Regional Director . But this was excluded on the
ground that the objections case could not be relitigated de
novo before me. Pittsburgh Plate Glass Co. v. N. L.R.B.,
313 U.S. 146, 158 , 162; N.L .R.B. v. Air Control
Products, 335 F.2d 245, 249 (C.A. 5); Sheridan-Peter Pan
Studios, Inc., 173 NLRB No. 11; Valley Manor
Convalescent Center, 172 NLRB No. 174; Cap Sante
Vue, Inc., 172 NLRB No. 176. I proceed to consider
Respondent' s arguments attacking the certification of
Papermakers.
Respondent first contends that the " Regional Director's
conclusion at page 4 of his Report on Objections that `the
Spanish-speaking employees were afforded a full
opportunity to be aware of the choices on the ballot and
to make an effective and informed expression of their true
desires' is a conclusion totally contrary to the evidence in
this case ." At most, this alleges error on the part of the
Regional Director in analyzing evidence . But his
determination in this respect will not be reversed "unless
he acts arbitrarily or capriciously, or out of line with
Board policy or the Act's requirements; and mere
assertions of error are not sufficient ." Manning, Maxwell,
& Moore, Inc. v. N.L.R.B., 324 F.2d 857, 858 (C.A. 5).
Accord: N.L.R.B. v. J. H. Matthews & Co., 342 F.2d
129, 131-132 (C.A. 3), cert. denied 382 U.S. 832. In any
event, I find that the Regional Director did not act
arbitrarily or capriciously, or out of line with Board policy
or the Act's requirements, in disposing of this objection,
i.e., Employer Objection 1 and Independent Objection 6.
Delta Drilling Company, 169 NLRB No. 93, cited by
Respondent , does not compel a different result.
Then, again , Respondent maintains that the "Regional
Director's conclusion at page 5 [of his Report on
Objections] that `the absence of Portuguese language
notices was not detrimental to the two Portuguese
speaking employees and in all the circumstances, as
related, further finds that these employees were able to
make an effective and informed expression of their true
desires,' is not supported by any evidence in the Report of
Objections and is totally contrary to the record testimony
of the two employees themselves." This relates to
Employer Objection 1 and Independent Objection 6. I find
this argument amounts to no more than an assertion that
error in assessing evidence was committed , and that such
assertion is not sufficient to require that the Regional
Director be reversed. N.L.R.B. v. J. H. Matthews & Co.,
342 F.2d 129, 131-132 (C.A. 3), cert. denied 382 U.S. 832.
And I further find that such Director did not resolve this
issue arbitrarily, capriciously, or not in conformity with
Board policy or the provisions of the Act. Laars
Engineers , Inc., 173 NLRB No. 90.
Another contention of Respondent attacks the
Director's conclusion that he "found no merit in
Respondent' s objection that the Papermakers engaged in
electioneering in the polling area ." This relates to
Respondent's Objection 3. But this objection merely
insists that the Regional Director erroneously assessed the
evidence . Such a ground, i.e., an erroneous evaluation of
the record by a Director , will not cause the Board to
reverse his determination, even though the Board would
arrive at another conclusion . And I further find that this
alleged error does not amount to arbitrary or capricious
conduct, or constitutes action inconsistent with Board
policies or statutory objectives. McMullen Leavens
Company, 83 NLRB 948, 952-953, 955. Hence I find no
merit in this objection.
Respondent' s next objection assails the Director
because he "found no merit to Respondent' s objection
that '. . . the election was conducted in an atmosphere of
confusion and under circumstances that interfered with the
laboratory atmosphere required of Board elections '." This
is Respondent' s Objection 2 and Independent ' s Objection
4. These arguments at most demonstrate that the Director
incorrectly assessed the evidence before him on these
issues, but they fail to disclose action which is arbitrary,
capricious, or not consonant with Board policies or the
mandates of the Act.
Respondent's Objection 4 and Independent's Objection
5 claim that the Papermakers unlawfully paid or offered
to pay employees and observers for loss of time at the
election . Although he found that the observers were paid,
the Regional Director concluded this was sanctioned by
Board decisions. Shoreline Enterprises, 114 NLRB 716.
Teletype Corporation, 122 NLRB 1594, is distinguishable,
for there the unions there involved in effect were buying
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the votes of employees who were eligible to vote in an
election. But the Regional Director found as a fact that
the remaining part of the objections lacked merit because
unfounded on the evidence before him. Accordingly, I find
no merit in attacking his conclusions thereon simply
because his evaluation of the evidence may not be
relitigated before the Board. N.L.R.B. v. Hollywood
Brands, Inc., 398 F.2d 294 (C.A. 7); N.L.R.B. v.
Continental Nut Co., 395 F.2d 830 (C.A. 9); Neuhoff
Bros. Packers, Inc. v. N.L.R.B., 362 F.2d 611, 613 (C.A.
5), cert. denied 386 U.S. 956; Adams Drug Co., Inc., 171
NLRB No. 13; Rod-Ric Corporation, 171 NLRB No.
134. Issues which were or could have been raised in the
prior representative proceeding may not be relitigated in a
subsequent related refusal to bargain proceeding absent
newly discovered or previously unavailable evidence or
special circumstances. Hevi-Duly Electric Company, 172
NLRB No. 98; Bausch & Lomb, Incorporated, 171
NLRB No. 114. And I find nothing unlawful per se in
compensating observers at elections. N.L.R.B. v.
Huntsville Mfg. Co., 203 F.2d 430, 434 (C.A. 5); Dallas
City Packing Co., 110 NLRB 8, 9-10.
Respondent also attacks the Regional Director's
disposition of its challenges alleging that Papermakers
engaged in electioneering in the polling area (Objection 3)
and that the "election was conducted in an atmosphere of
confusion and under circumstances that interfered with the
laboratory atmosphere required of Board elections"
(Objection 5). See Respondent's Brief, pp. 19-20. But I
find that essentially these two objections are directed to
the correctness of the Director's resolving an issue of fact.
And I expressly rule that it is not within my province to
pass upon the Director's evaluation of the record before
him on questions of fact. In any event, I find that it has
not been shown or established that the Director 's decision
on these two objections is arbitrary , capricious, or
obnoxious to Board policies or the provisions of the Act.
General Armature , 89 NLRB 654, 657. Accordingly, I
find that Respondent's attack upon the Director's
conclusions in this respect is not well taken.
Independent also filed three additional objections,
numbered 1, 2, and 3, which related to issues not raised in
any of Respondent's objections. Their text is set forth
above, and need not be restated here. All three were found
by the Regional Director to lack merit. Number I was
found to be unmeritorious as a "purely speculative
contention" that Respondent ' s General Manager was
replaced by Respondent to convince employees that they
did not need a union. This finding is not arbitrary or
capricious, and is based upon an evaluation of the record.
Hence , this objection is not well taken and I so find.
Independent's Objection 2 was found by the Director to
constitute a postelection challenge. As such it cannot now
be used as a vehicle to invalidate the election. N.L.R.B. v.
A. J. Tower Co., 329 U.S. 324.
Finally, Objection 3 complains that Independent's
officers acted as observers for Papermakers at the
election . Although he found this to be a fact , the Regional
Director found that they did not conduct themselves
improperly or otherwise improperly influenced the course
of the election , and that the mere fact that they acted as
observers for another union was proper under Shoreline
Enterprises of America, 114 NLRB 716, 718-719,
enforcement denied 262 F.2d 933 (C.A. 5). Accordingly,
he overruled this objection . I find that the Regional
Director' s finding is neither arbitrary nor capricious, that
it is consonant with Board policies, and that it is not
obnoxious to statutory enactments. N.L.R.B. v. Huntsville
Mfg. Co., 203 F.2d 430 , 434 (C.A. 5). Cf. General
Electric Company, 173 NLRB No. 46 , where the Board
held that a union may lawfully select representatives of
other unions (recognized by the same employer ) to sit at
the bargaining table during negotiations with the
Employer.
Since I have found that the certificate issued to
Papermakers is valid, it follows , and I find, that
Respondent was thereby placed under a statutory onus to
recognize and bargain with that labor organization.
Included in the legislative duty imposed on Respondent is
the obligation to furnish Papermakers , as majority
representative of the employees in the unit involved, all
relevant information requested by such union.
It is not disputed , and I find , that on April 24, 1968,
Papermakers requested Respondent to supply the former
with information necessary and relevant for it to bargain
intelligently. This information consists of (a) the names
and dates of hire of all employees in the unit herein found
to be appropriate , and (b) job classifications and hourly
rates of pay for these employees . Respondent did not
furnish this information. However , Papermakers was
entitled to the same ; and I find that Respondent ' s failing
to render it amounts to a refusal by Respondent to
bargain collectively within the meaning of Section 8(a)(5)
of the Act. F. W. Woolworth Co., 109 NLRB 196, enfd.
352 U .S. 938 ; Boston Herald- Traveler Corporation v.
N.L.R.B., 223 F.2d 58 (C.A. 1).
Finally , upon this branch of the case , I find that the
following is an appropriate unit for the purposes of
collective bargaining under Section 9 of the Act:
All production and maintenance employees employed
by Respondent at its Bolt Street , Lowell,
Massachusetts, plant, excluding office clerical
employees , plant clerical employees, designers , artists,
truckdrivers , professional employees , guards, and
supervisors as defined in the Act.
B. As to the Checkoff of Dues on Behalf of the
Independent
Respondent and Independent executed on March 7,
1966, a contract covering the employees in the unit found
above to be appropriate . In the absence of evidence or
contention that it is invalid , I find that it is a valid
contract . Shamrock Dairy , 119 NLRB 998, 1000-02;
modified on other grounds , 124 NLRB 494; enfd. 280
F.2d 665 (C.A.D.C.); cert . denied 364 U.S. 892. This
contract, which expired on March 7 , 1968, contained a
union shop clause and a clause providing for checkoff of
dues for those employees voluntarily authorizing the same.
Nine employees signed such authorization cards in March
or April 1967, for a period of 1 year . Each such
authorization card contains a statement that it
shall be automatically renewed and shall be irrevocable
for successive periods of one (1) year each, or for the
period of each succeeding applicable collective
agreement between the employer and the [Independent],
whichever shall be shorter , unless written notice to
terminate is given not more than 20 and not less than
10 days prior to the end of one year or each applicable
contract, whichever occurs sooner.
None of the nine employees gave such notice. As a
result Respondent deducted their dues and transmitted
them to the Independent from , among other periods,
March 7, 1968, to July 1, 1968. It is my opinion, and I
find, that this action by Respondent does not contravene
LOWELL CORRUGATED CONTAINER CORP.
the Act, even though the contract between Respondent
and the Independent expired on March 7, 1968.
Initially it is well to mention that checkoff
authorizations may be valid notwithstanding the absence
of a union-security clause. See N.L.R.B. v. Penn Cork &
Closures, Inc., 376 F.2d 52 (C.A. 2), cert. denied 389 U.S.
843. That case also holds that an employee's revocation of
such authorization after a contract has expired, or a
union-security clause has been rescinded under Section
9(e) (1) of the Act, must be honored by the Employer, and
the failure to do so constitutes an unfair labor practice.
To the same effect are Bedford Can Mfg. Corp., 162
NLRB No. 133, and Merchants Fast Motor Lines, 171
NLRB No. 177.
But the foregoing cases stress the element of an
employer's refusing to abide by a termination or
revocation of a checkoff authorization executed by an
employee as the necessary ingredient of an unfair labor
practice. No cases have been cited, and I have been
unable to find any, where the Board has held that it is
improper for an employer to continue to honor an
uncanceled, unabrogated, or unrevoked checkoff after the
contract providing for it has expired but before the
checkoff has terminated by its own terms. At least one
court treats a checkoff as "a voluntary arrangement, in
the nature of an assignment ." In re Westmoreland Metal
Mfg. Co., 69 LRRM 2536 (E.D. Pa.).
Since no Board decisions have been cited to the
contrary, it would seem that I am justified in expecting
that the Board will approve a finding that a checkoff
authorization which has not been revoked, abrogated,
terminated , or canceled may be honored during its term
by the Employer involved notwithstanding that the
contract sanctioning the authorization has expired. At
least three reasons favor this view:
1. Because the employee has not withdrawn his consent
to withhold dues from his wages , no element of coercion
or restraint on the employee is discernible whereby his
wish or desire is frustrated. Thus the cases cited by the
General Counsel are inapposite, for they find an element
of compulsion on the employee in the Employer ' s refusal
to honor a revocation of the employee's authorization to
pay dues to a union to which he need not belong. Patently
this is not the situation here.
2. The Employer is not unlawfully assisting the Union
to which the dues are transmitted, for the dues are not
extracted against the wishes of the employee. Cf. The
Boeing Company, 173 NLRB No. 71. In such situations
the employee, and not the Employer, has decided that he
will continue to contribute financial support to a labor
organization of his own choosing . I use the phrase "of his
own choosing" because the employee is free to repudiate
or revoke his authorization at any time after the contract
expired. See N.L.R.B. v. Penn Cork & Closures, supra;
Bedford Can, supra; and Merchants Fast Motor Lines,
supra. It is therefore proper to find - and I do - that
the Employer is serving as a conduit for the employee in
transmitting the latter's dues to the Union involved. In re
Westmoreland Metal Mfg. Co., 69 LRRM 2536 (E.D.
Pa.). Hence the Employer is acting pursuant to the
employee's instruction. Therefore, I find no assistance has
been conducted by the employer to the union receiving the
dues, for such union is a passive beneficiary thereof.
3. This result permits multiple or, in any event, dual
unionism . Nothing in the Act frowns upon or interdicts
membership in more than one union . In fact, it would
seem that to some extent national policy permits
membership in a union other than the one which an
173
employer must recognize. At least this is expressly
endorsed by the Railway Labor Act. Since membership in
the Independent does not affect the rights of
Papermakers, which latter union the Employer here must
recognize, even if Papermakers should succeed in
obtaining a union shop clause requiring membership in it,
I find that it is not incongruous to maintain membership
in both of said unions simultaneously. Indeed it may well
be an unfair labor practice for Respondent to fail to turn
over dues to the Independent if such dues are voluntarily
paid by the employee involved, for this would seem to be
discouraging membership in the Independent.
Upon this segment of the case the final question is
whether the checkoffs under consideration survived the
contract between the Independent and Respondent. It is
my opinion, and I find, that said checkoffs continued in
full force and effect at all times material, even though the
contract between the Independent and Respondent ended
on March 7, 1968. This is because the text of the
authorization expressly provides that it "shall be
automatically renewed . . . unless written notice to
terminate is given" at a specified time. No such notice
was given as far as the record reveals. Hence, these
authorizations were automatically renewed.
The period of renewal, according to the language of the
authorization , is for 1 year "or for the period of each
succeeding applicable collective agreement between
[Respondent] and the [Independent], whichever shall be
shorter." After March 7, 1968, however, no "succeeding
applicable collective agreement" was in existence.
Therefore, this limiting alternative did not become
operative. Consequently, the other designated alternative
determined the length of time for which the checkoff
continued when it was automatically renewed, i.e., 1 year
from March or April, 1968. The March or April, 1968,
date represents the end of the year of the authorizations
signed in March or April, 1967, and in evidence as
General Counsel's Exhibit 4.
Accordingly, I find that since the dues were validly
deducted and lawfully transmitted to the Independent
after February 8, 1968, Respondent has not violated the
Act by such conduct. Hence, I shall recommend that
paragraphs 13, 14, 16, 17, and the applicable portions of
18 of the complaint be dismissed. Nevertheless, as alleged
in paragraph 14 of the complaint, I find that since
February 8, 1968, Independent has had "minority status"
and Papermakers has been the exclusive representative of
Respondent's employees in the unit herein found to be
appropriate.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The conduct of the Respondent found to constitute
unfair labor practices, as set forth in section IV, above,
occurring in connection with the operations of the
Respondent described in section I, above, has a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tends to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
As the Respondent has been found to have engaged in
certain unfair labor practices, I shall recommend that the
National Labor Relations Board order it to cease and
desist therefrom and that the Respondent take specific
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action, as set forth below , designed to
effectuate the policies of the Act. Thus I shall recommend
that the Respondent , upon request by the Papermakers, be
required to bargain collectively with the latter and furnish
to the latter certain necessary and relevant information if
it is sought by Papermakers . I shall also recommend that
the Board' s Order provide that the Respondent shall post
an appropriate notice , the text of which is recited in the
attached Appendix.
Respondent' s action in my opinion does not portray
hostility to the Act. In fact the only way it can test the
validity of the certification issued to Papermakers is by
refusing to recognize or bargain with said union. Such
right to question a certification is not only vouchsafed to
the Respondent by Section 9(d) of the Act, but also by the
due process clause of the Constitution . Patently the mere
exercise of a statutory or constitutional right to defend
against a claim prosecuted under the Act cannot be
thought to be inimical to the policies of the Act, and I so
find.
It follows that , absent any evidence that the
Respondent' s conduct evinces a desire to thwart or impede
the purposes of the Act, an Order is proper which is
limited to enjoining only the specific activities found to
contravene the Act . See N. L.R.B. v . Simplex Time
Recorder Company, 401 F.2d 546 (C.A. 1). In other
words, the remedy adopted should be commensurate with
the violations found; and relief broader in scope is not
warranted on the record unfolded in this case.
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Papermakers and the Independent each is a labor
organization within the meaning of Section 2(5) of the
Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. A unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act
consists of:
All production and maintenance employees employed
by the Respondent at its Bolt Street , Lowell,
Massachusetts, plant, excluding office clerical
employees, plant clerical employees , designers, artists,
truckdrivers , professional employees , guards, and
supervisors as defined in the Act.
4. On or about April 3, 1968, and at all material times
thereafter , Papermakers represented a majority , and has
been the exclusive bargaining representative , of all the
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9 (a) of the Act; and the Respondent was on that
date, and has been since, legally obligated to recognize
and bargain with Papermakers as such.
5. The Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act, by
(a) Refusing to recognize and bargain collectively with
Papermakers on and after May 1, 1968, with regard to
the employees in said appropriate unit; and
(b) Refusing on and since May 1, 1968 , to supply
Papermakers with information , necessary and relevant for
it to bargain intelligently for all the employees in said
appropriate unit , concerning job classifications, rates of
pay, and names and dates of hire of said employees.
6. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
7. The Respondent has not committed any other unfair
labor practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Board issue an Order requiring that
the Respondent , its officers , agents , successors, and
assigns, shall:
1. Cease and desist from refusing to recognize and
bargain with Papermakers as the exclusive bargaining
representative of all the employees in the above-described
appropriate unit.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain with
Papermakers as the exclusive representative of all
employees in the aforesaid appropriate unit and, if an
understanding is reached , embody such an understanding
in a written , signed agreement.
(b) Upon request, supply to Papermakers information
necessary and relevant for it to bargain intelligently,
including names and dates of hire of all employees in said
appropriate unit , and job classifications and hourly rates
of pay for said employees.
(c) Post at its plant at Lowell, Massachusetts, copies of
the attached notice marked "Appendix."' Copies of said
notice , on forms provided by the Regional Director for
Region 1 , after being signed by a duly authorized
representative of Respondent , shall be posted by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily displayed. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing , within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
'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 further event that the
Board ' s Order is enforced by a decree of a United States 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 , of the steps which the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO 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 WILL NOT refuse to bargain collectively with
LOWELL CORRUGATED CONTAINER CORP.
United Papermakers and Paperworkers , AFL-CIO, as
the exclusive representative of the employees in the
bargaining unit described below.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive representative of
all employees in the bargaining unit described below,
with respect to rates of pay, wages , hours of
employment , and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a written , signed
agreement . The bargaining unit is:
All production and maintenance employees employed
by us at our Bolt Street , Lowell, Massachusetts,
plant, excluding office clerical employees, plant
clerical employees , designers , artists, truckdrivers,
professional employees , guards, and supervisors as
defined in the Act.
WE WILL, upon request , furnish to the above-named
175
Union information necessary and relevant for it to
bargain intelligently.
Dated By
LOWELL CORRUGATED
CONTAINER CORPORATION
(Employer)
(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
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building , Cambridge & New
Sudbury Streets, Boston , Massachusetts 02203, Telephone
617-223-3353.