Marco Paper Products Co.

National Labor Relations Board - Board Decisions

Oct 17, 1969

179 N.L.R.B. 194 (N.L.R.B. 1969)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marco Paper Products Co. and General
Truckdrivers , Warehousemen , and Helpers Union,
Local 624 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America . Case 20-CA-5006
October 17, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 22, 1969, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed an answering brief.
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 at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner
I join my colleagues in adopting the Trial
Examiner's finding and conclusion that Respondent
violated Section 8(a)(1) and (3) by discharging Otis
Gay because of his participation in the Union's
organizational campaign.
I am not satisfied, however, that the evidence
supports the Trial Examiner's conclusion that
General Manager McCall raised Robert Sparkman's
wages on May 27 "with the express purpose of
impinging upon his employees' freedom of choice
for or against unionization, and that [such] action
was reasonably calculated to have that effect." I
note that Sparkman's raise was only one of several
given to employees shortly before the election was
conducted in Respondent's plant, and that, as to the
other raises, the Trial Examiner found they were
given for legitimate reasons and without interfering
with employees' exercise of Section 7 rights.
Moreover, Sparkman's wage increase must be
contrasted with the treatment afforded Gay who was
discharged for his union activities I find little if any
evidence explaining why Respondent chose to
discharge one employee for his union activity and
buy off the other employee for his union activity if
such be the case. Although the timing of
Sparkman's raise is suspicious, I find that factor
insufficient to support the Trial Examiner's
conclusions as to McCall's motivation for granting
the wage increase to Sparkman and the impact of
that wage increase on employees' exercise of Section
7 rights.
I would dismiss the allegations of the complaint
insofar as they allege that Respondent violated the
Act by giving Sparkman a raise.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Marco Paper Products
Co., San Rafael, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order
MEMBER FANNING, concurring in part and dissenting
in part:
'These findings are based , in part, upon credibility determinations of the
Trial Examiner to which the Respondent has excepted After careful review
of the record , we conclude that these credibility findings are not contrary
to the clear preponderance of all relevant evidence Accordingly, we find
no basis for disturbing these findings Standard Dry Wall Products, Inc ,
91 NLRB 544, enfd 188 F 2d 362 (C A 3)
'Like the Trial Examiner , we are satisfied upon the basis of all the
circumstances recited by him, including the timing and absence of any
acceptable explanation therefor , that the discharge of Gray and the pay
raise to Sparkman were violative of the Act Each , in its way, was
designed to thwart the Union's organizational effort Contrary to the
dissent ' s view of Sparkman ' s raise as "only one of several given", the
record' shows that Sparkman alone among Respondent's regular employees
received a pay raise Respondent itself seeks to defend this raise on the,
ground that it was an "isolated raise to one employee "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE M MILLER, Trial Examiner. Upon a charge
filed May 20, 1968, and duly served, the General Counsel
of the National Labor Relations Board caused a
Complaint and Notice of Hearing to be issued and served
on Marco Paper Products Co , designated as Respondent
within this decision. The Complaint issued December 18,
1968; therein Respondent was charged with unfair labor
practices affecting commerce, within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended. 61 Stat. 136, 73 Stat. 519 Within
Respondent's duly filed answer, certain factual statements
in General Counsel's Complaint were conceded;
Respondent, however, has denied the commission of unfair
labor practices
Pursuant to notice, a hearing with respect to this matter
was held at San Francisco, California, on April 15, 1969,
before me The General Counsel and Respondent were
represented by counsel. Each party was afforded a full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the
issues. Since the hearing's close, a brief has been received
from the General Counsel's representative, this brief has
been duly considered.
179 NLRB No. 34
MARCO PAPER PRODUCTS CO. 195
FINDINGS OF FACT
Upon the entire testimonial record, documentary
evidence received, and my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
Respondent raises no question herein with respect to
General Counsel's jurisdictional claims. Upon the
Complaint's relevant factual declarations, which have not
been controverted, I find that Respondent was, throughout
the period with which this case is concerned, an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended Further, with due regard for presently
applicable jurisdictional standards, I find assertion of the
Board's jurisdiction in this case warranted and necessary
to effectuate statutory objectives.
11. THE LABOR ORGANIZATION INVOLVED
General Truckdrivers, Warehousemen, and Helpers
Union, Local 624, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, designated as Complainant Union within this
decision, is a labor organization within the meaning of
Section 2(5) of the Act, as amended, which admits certain
of Respondent's employees to membership.
III THE UNFAIR LABOR PRACTICES
A. Issues
General Counsel's Complaint, herein, charges
Respondent with statutorily-proscribed interference,
restraint, and coercion, because of certain wage increases
which were granted a limited number of Respondent's
employees, purportedly for the purpose of discouraging
their Union sympathies. Further, General Counsel charges
that Respondent discharged Otis Gay because of his union
activities, or other protected concerted activity for the
purpose of collective bargaining or other mutual aid or
protection. Respondent contends that its challenged wage
raises - three in number - were granted for legitimate
business reasons. With respect to Gay's termination,
Respondent contends that it lacked knowledge regarding
his Union sympathies when management's decision to
terminate him was reached, and that his termination was
dictated by legitimate business considerations.
B. Facts
1. Background
Respondent maintains a San Rafael, California plant,
within which it manufactures and processes paper tapes
These tapes are, then, sold for building and construction
work; they are used in connection with sheetrock
installation
Respondent's plant contains three departments within a
single physical facility: (1) A Shipping-Receiving-Material
Handling department, (2) a Processing department; and
(3) a Rewind Machine department. Within the first
department designated, Respondent receives paper in large
rolls In Processing, these large rolls are cut to proper
sizes The firm's Rewind Machine department workers
transfer such cut paper to smaller rolls. These are, then,
transferred back to Respondent's Shipping and Receiving
department, within which they are packed for shipment
These various operations, described, are conducted
within a comparatively small physical compass, they
require a comparatively small production crew
Respondent's Processing and Rewind Machine
departments, combined, occupy no more than 600 square
feet The Shipping-Receiving-Material Handling
department fills the balance of Respondent's plant space,
not specified for the record. (The precise physical
configuration of Respondent's combined Processing and
Rewind Machine departments has not been described
However, Respondent's suggested area figure, 600 square
feet,would require a space measuring approximately 30 by
20 feet) During the particular April 16 - May 31, 1968
period with which this case is directly concerned,
Respondent's total production and maintenance crew
complement fluctuated between 15 and 19 workers This
group included two part-time Rewind Machine operators,
two part-time Shipping employees, and one part-time
janitor, plusl0-15 full time salaried or hourly paid workers
Throughout the period with which this case is
concerned, Respondent maintained a two-shift operation
Two Processing department workers, together with one
part-time Rewind Machine operator, worked a swing
shift, the balance of Respondent's production crew worked
days. Within Respondent's crew, turnover - during the
period with which this case is concerned - was relatively
high. Between January I and May 15, 1968, 10 workers
were hired; during the same period, three men ceased
work or were separated Between May 15 and July 31,
however, five more workers were terminated
Respondent's consolidated payroll list, between April
1st and July 31, specifically, contained 24 names Among
those listed, however, two performed no work after May
15 (One, William Christiana, designated a part-time
Rewind Machine operator, is merely shown as not
working. Otis Gay, Jr., with whose termination this case
is concerned, concededly was dismissed on the designated
date.) Further, two of those listed - with previous
experience in Respondent's hire - did not resume their
work, during the 1968 calendar year, before certain
designated dates in June and July, respectively.
2. Otis Gay's employment history
On April 18, 1968, Respondent hired Otis Gay. His
testimony regarding his work history - proffered and
received largely without challenge - would warrant a
determination that he started in Respondent's Shipping
and Receiving department, where he worked three or four
days Gay was then transferred to work as Processing
Machine helper on Respondent's swing shift, he held this
position for some 2 weeks (This determination derives
from a summary of Respondent's personnel record, plus a
synthesis of relevant testimony proffered both by Gay and
Respondent's general manager Gay testified that he was
transferred from Shipping and Receiving to Rewind for 3
days, following which he served 2 weeks in Respondent's
Processing department. General Manger McCall testified,
however, that Gay was transferred directly from Shipping
and Receiving to Processing, where he served I week on
Respondent's small swing shift The firm's personnel
record summary reveals no transitory Rewind Machine
service by Gay, I reject his testimony in that connection.
However, Respondent's personnel record summary
buttressed by testimony - particularly General Manager
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCall's testimony that Gay was relieved of his
Processing department assignment on May 6, pursuant to
request - persuades me that he probably did spend about
2 weeks on Respondent's swing shift. I have so found )
Gay, however, finally reported a distaste for swing shift
hours, and requested day shift work in Respondent's
Rewind Machine department On Monday, May 6, so I
find, he received the requested transfer
During this period, so I find, Gay spoke with several
fellow workers regarding their need for higher wages On
May 6 or 7, he communicated with Business
Representative Clark of Complainant Union Shortly
thereafter, on May 12, Clark visited Gay's home to
discuss unionization; three more workers from
Respondent's plant were present Gay, together with his
three guests, signed union designation cards Thereupon,
Clark gave him more cards for Respondent's workers to
sign On May 13, Gay solicited and procured signed
Union designations from four additional workers (His
testimony shows that he solicited two named workers at
their San Rafael living quarters, and that he solicited two
other workers in the parking "lot" near Respondent's
plant.) That afternoon, Gay further solicited Richard
Wagner, rewinder, somewhere within the confines of
Respondent's parking lot; Wagner, so Gay testified, took
a proffered designation card, but did not sign
Testifying generally, regarding his solicitation in
Complainant Union's behalf during this period, Gay
declared that - between May 6 and May 13 particularly
- he spoke with his fellow workers, regarding
unionization, both during lunch breaks and while at work
The record reflects his testimony - proffered without
challenge or contradiction - that he discussed
Complainant Union with his fellow workers during "every
chance" which was presented.
On May 14, Gay did not work, he consulted a
physician because his elbows were sore He was told that
his work within Respondent's plant had created or
aggravated an arthritic condition
When Gay reported for work on May 15 at 7 o'clock,
he advised Leadman John Toll in Respondent's Rewind
Machine department that he could no longer perform
Rewind Machine work. He requested a transfer, and was
forthwith reassigned to Respondent's Shipping and
Receiving department (While a witness, Gay
demonstrated the repetitive physical movements which his
work as Rewind Machine operator had required. The
work, so his demonstration showed, called for
simultaneous lifting and twisting motions ) Within
Respondent's Shipping and Receiving department, Gay
then shared the work with three other full-time workers-
George Schroeder, Respondent's longtime shipping clerk,
Kenneth Gay (Otis Gay's brother) who had been hired
May 6; and John Collins, hired May 10. Gregory Dwight,
previously a member of Respondent's Shipping and
Receiving crew - who had been an April 29 new hire -
was switched to Rewind Machine department work,
replacing Gay, concurrently with the latter's May 15
transfer
3 Gay's termination
Regarding the specific developments which ensued, the
record reveals testimonial conflict. Gay was concededly
terminated following the completion of his May 15 stint
within Respondent's Shipping and Receiving department
This trier of fact, however, has been confronted with two
significantly divergent factual recitals concerning the
circumstances preceding his termination.
Gay testified, simply, that - following his reassignment
- he had worked a full day in Respondent's Shipping and
Receiving department, that, when his work day ended, he
had had a conversation with Respondent's general
manager, that McCall had, then, said he had thought Gay
could "work out" doing rewinding, but that, since he
couldn't, Respondent would have to lay him off, and that
he was thereupon told, "This is it," and was given his pay
check
While a witness, McCall provided a more detailed
recital Specifically, he testified that he had reached
Respondent's plant shortly after 9 o'clock that morning,
that - consistently with his regualr practice - he had
spoken with Leadman Toll regarding the work, and that
the latter had told him about Gay's reported arthritic
condition and consequent transfer Respondent's general
manager, continuing, testified as follows
And I related to Johnny [Toll] in response to that,
that at the present time we had a surplus of help in the
Shipping-Receiving Department, we were going to have
to reduce our force and we did not have a place that we
could utilize Otis, and it would be - that we would just
have to let him go . Otis was standing in the same
proximity of the machine at the time I was talking to
Johnny As a matter of fact, he was in view and was
standing within, I would say, less than 10 feet, and at
the time of concluding the conversation with Johnny, I
passed where Otis was working and related to him that
I was sorry that he had a wrist condition and wasn't
able to perform, that we had an excess of people at the
present time and that we would have to dispense with
his services at the end of the day, he could stay for the
rest of the day but we would have to dispense with his
services
Later that day, concededly, McCall received a May 14
letter from Complainant Union, which claimed to
represent a majority of Respondent's San Rafael
employees. According to Respondent's general manager,
this letter, which had been sent by certified mail, was
received at approximately l l o'clock, McCall declared -
while a witness - that, before receiving this letter, he had
had no knowledge that Complainant Union was seeking to
organize his plant
Subsequently - so McCall testified - he had a second
conversation with Gay; this, so the record shows, took
place following the completion of Respondent's day shift
With respect thereto, Respondent's general manager
recalled that
I related again to Otis that we had a surplus of people
in our Shipping and Receiving Department, that we
didn't have a place that we could use him, and that we
had to lay him off, and I gave him his check.
McCall was then asked whether he had known anything
regarding Gay's activity in Complainant Union's behalf
"at any time up to the time" when he (Gay) was
terminated, Respondent's general manager replied
negatively During cross-examination McCall conceded
that Gay's work, during his prior period of service in
Respondent's Shipping and Receiving department, had
been acceptable; and that his performance had measured
up to Respondent's estimate of his capabilities. Likewise,
McCall conceded that Gay's swing shift performance
record on Respondent's processing machine had been, so
far as he knew, satisfactory. Nevertheless, Respondent's
general manager reiterated his prior declaration that Gay
had been twice told that the firm had a surplus of
MARCO PAPER PRODUCTS CO. 197
Shipping and Receiving department workers, that a
reduction of force was necessary; and that the firm would,
therefore, dispense with his services
Summoned in rebuttal, Gay could not "recall" any
morning conversation whatsoever with Respondent's
general manager; he denied having received any
knowledge regarding his termination before the
conversation with McCall which followed the completion
of his work shift. When pointedly cross-examined by
Respondent's counsel, Gay categorically denied any
morning talk with McCall, since he could remember their
purported "second" talk, but not their purported "first"
conversation. When asked whether he was "positive" that
no such conversation had taken place, however, Gay
conceded that he could not so testify positively
With matters in this posture - despite Gay's patent
diffidence regarding the quality of his recollection - his
recital, within my view, merits credence. The testimony of
both witnesses - with respect to these matters - stands
in the record without direct corroboration (In surrebuttal,
Respondent proffered Leadman Toll. The latter purported
to confirm a May 15 morning conversation with McCall
concerning Gay's employment, but proffered no details
Though he declared, further, that he had seen McCall turn
and walk toward Gay some 10-12 feet distant, within
Respondent's Shipping and Receiving department, Toll
conceded that he had not heard their conversation.) Gay's
testimony, however, was proffered rather ingenuously,
with quiet sincerity; despite his demonstrated reluctance to
declare himself "positive" when challenged directly by
Respondent's knowledgeable counsel, his recital, within
my view, carried the ring of truth Further, this trier of
fact finds himself persuaded - consistently with General
Counsel's contention - that McCall's proffered
circumstantial recollections weaken, rather than support,
his proffered testimonial version. For example-
Respondent's general manager conceded that Gay was
told, when his shift ended, that he was being laid off
because Respondent had a surplus crew, if McCall had,
really, stated the reasons for Gay's prospective layoff
previously, no logical reason can be suggested for his
determination to repeat himself later the same day.
Further, McCall's testimony that he had notified Gay
regarding his prospective termination when they spoke
during an early part of Respondent's day shift - though it
may not "strain credulity" as General Counsel contends -
does reflect a departure from conventional management
norms, no persuasive rationale for such a proffered
"anticipatory" pronouncement has been vouchsafed
Finally, this trier of fact notes that McCall's testimony
reflects a discussion regarding his plan to reduce
Respondent's Shipping and Receiving department
complement with Leadman Toll, though the latter
concededly had no responsibilities connected with that
department, the record is completely silent, however,
regarding any communication between McCall and
Shipping Clerk Schroeder, whose full-time departmental
crew was being reduced These considerations, inter alia,
buttress my conclusion - primarily derived from my
observation of both witnesses-that McCall's testimonial
suggestion regarding the timing of his decision with,respect
to Gay's term ination'(which would fix that decision as
having been made before his receipt of Complainant
Union's letter) merits rejection
4 Subsequent developments
Within a letter dated May 16, Respondent's general
manager notified Complainant Union that Respondent
questioned its representation claims, and suggested an
NLRB election by secret ballot Consistently with this
suggestion, Complainant filed a petition for certification
on May 20, with respect to a conventional "production
and maintenance" bargaining unit Sometime thereafter,
on a date not specified for the record, agreement
regarding a consent election was reached A notice with
respect thereto was provided for posting, the record
warrants a determination that it was posted on May 27,
within Respondent's plant
5. Robert Sparkman's pay raise
On the "evening" of May 27, Charles Johnson, then a
full-time Rewind Machine worker, told Respondent's
general manager that he had procured a much better job
and wished to resign Inter alia, so McCall testified, he
declared that he had been solicited in Complainant
Union's behalf, that he had had a prior experience which
he did not wish to repeat, and that he was, therefore,
resigning. During this portion of their conversation, so the
record shows, Johnson further told McCall that Robert
Sparkman was a union supporter. (Sparkman had,
apparently, played a minor role in Complainant Union's
campaign. He had signed Complainant Union's
designation card on May 12, at Gay's home, the following
day, so Gay's testimony shows, he had told Johnson and
Preston that Gay wished to see them in Respondent's
parking lot.) That same date, Sparkman received a raise
He had been hired April 26, 1 month previously.
Following a short period of Shipping and Receiving
department service, he had been transferred to Process
Machine work. The record warrants a determination that
Sparkman had been hired at Respondent's standard
full-time production worker rate, $2 50 per hour. His May
27 raise, however, provided him with $2.75 per hour.
Thereby, Sparkman became Respondent's third highest
hourly paid worker. His $2.75 rate was exceeded only by
the $3 25 rate which Respondent was then paying to Sam
Preston and Richard Toll, Process Machine operators
with 4 and 11 years of seniority, respectively
According to McCall, Sparkman had been granted his
raise during a discussion "earlier that afternoon" before
Johnson's resignation During that afternoon conversation
- so Respondent's general manager testified -
Sparkman was first reminded that, some few days
following his hire date, he had been told that Respondent
was seeking "capable and competent" workers; that
transfers to Process and Rewind Machine work were
possible, and that workers advanced or promoted to such
work could expect raises Consistently therewith - so
McCall testitied - Sparkman was then told, during their
May 27 conversation, that, since he had performed well
following his transfer to Process Machine work, his pay
would be raised
While a witness, McCall declared, categorically, that -
when his May 27 discussion with Sparkman took place,
and Sparkman was granted his raise - he (McCall) had
had no knowledge of Sparkman's prior activity in
Complainant Union's behalf.
With due regard for the complete record, however,
McCall's testimony - that Sparkman's raise was granted
before he (McCall) heard anything from Johnson
regarding the Process Machine helper's Union sympathies
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- must be rejected. I note, in this connection, that
McCall identified Sparkman as the worker who had
replaced Gay, when the latter had requested a transfer
from Process Machine work on Respondent's swing shift.
The record shows that these transfers were made May 6th,
McCall declared, categorically, that Sparkman was a
swing-shift employee when his May 27th raise was
granted. Johnson, however, could not have been a fellow
swing-shift worker Respondent's personnel record
summary reveals that - just before his resignation -
Johnson was a full-time Rewind Machine operator.
McCall's testimony, however, shows that Respondent then
had no more than one part-time Rewind Machine
operator working swing-shift hours; this could possibly
have been William Christiani, previously mentioned, or
possibly James Houck, who was then likewise working
part-time regularly. Since, therefore, Johnson must have
been working days while Sparkman was working swing
shift hours, McCall's testimony regarding the latter's
purported presence on Respondent's premises "earlier"
that May 27 afternoon, before Johnson's day shift stint
had been concluded, can hardly be considered credible,
absent some rational explanation; no explanation whatever
has been proffered. With matters in this posture, McCall's
testimony that his "raise" conversation with Sparkman
took place earlier than his May 27 "evening" conversation
with Johnson, simply cannot be credited (Further, this
trier of facts notes, with respect to this facet of the present
case, that McCall's sense of time, generally, was less than
precise. He testified, twice, that Sparkman was granted a
raise within "about a week" or within "a week or two
weeks" following his transfer to Process Machine work.
However, Respondent's personnel record summary -
buttressed by McCall's further testimony fixing May 6 as
the relevant transfer date - clearly warrants a
determination that, by May 27, Sparkman had been doing
Process Machine work for three weeks. McCall's lack of
precision, with respect to this facet of the present case,
constitutes a factor which I have considered, together with
other factors, when assessing his credibility generally.)
Thus, necessarily, McCall's witness-chair attempt to
characterize his knowledge, with regard to Sparkman's
Union sympathies, as derived belatedly, following his
decision to raise Sparkman's pay, lacks a sufficient factual
base, and must be rejected I so find.
C. Conclusions
1. Gay's termination
Gay's testimony regarding his role as Compainant
Union's principal protagonist within Respondent's plant
- between May 6 and May 15 particularly - stands
without contradiction A recapitulation with respect
thereto, now, seems hardly necessary. (By May 13, so the
record shows, Gay had solicited nine of some
thirteen-fourteen full-time workers, eight of whom had
signed Complainant Union's designation cards )
Respondent contends, however, that Gay was not
discharged therefor; the firm's defense derives, partially,
from Respondent's subsidiary factual contention that
General Manager McCall, when he decided to dispense
with Gay's services, lacked any knowledge regarding the
latter's prior work in Complainant Union's behalf.
This contention, however, must be rejected With due
regard for its circumstantial context, the substantial, open
character of Gay's participation in Complainant Union's
campaign, both within and without Respondent's plant,
dictates a contrary conclusion For example' Gay testified,
without challenge or contradiction, that he discussed
unionization while at work within Respondent's Rewind
Machine department. This department, together with
Respondent's related Processing department, fills a
comparatively small space, within which some 9-11 day
shift workers perform full-time service. Leadman Toll,
concededly a supervisor, works, throughout the day,
within these closely-contained, contiguous departments.
Under such circumstances, I find merit in General
Counsel's contention that.
In view of Toll's proximity to Gay, and the unrefuted
testimony that Gay engaged in discussions with
employees about the Union while he was working, it is
also reasonable to conclude that Respondent learned of
Gay's Union activities even before the Union's demand.
This Board has held, frequently, that where a worker
actively participates in substantial union activity, both
within and without his place of work, and where the size
of the plant is small-management's knowledge regarding
the worker's union activities may properly be inferred.
East Bay Rambler, Inc, 168 NLRB No. 143 (TXD); Don
Swart Trucking Co, Inc , 154 NLRB 1345, fn. 2;
Quest-Shon Mark Brassiere Co , Inc , 80 NLRB 1149,
1150, enfd. 185 F.2d 285 (C.A 2); see N L R B. v Abbott
Worsted Mills, Inc, 127 F 2d 438, 440 (C A. 1). The
testimonial record herein - like those which the Board's
East Bay and Don Swart decisions both reflect - clearly
reveals Gay as Complainant Union's principal
within-plant protagonist. Far from being minimal and
deliberately guarded, (Compare Conwood Corporation,
173 NLRB No. 94), Gay's activity was both substantial
and open The present record, within my view, provides
ample warrant for a determination that Respondent's
general manager had knowledge of Gay's Union activities,
before he (McCall) reached his May 15 termination
decision.
Respondent further contends, however, that Gay was
not - in any event discharged, but that he was simply
"laid off" because the firm had surplus workers within its
Shipping and Receiving department When we consider
the circumstantial context within which Gay was
terminated, however, this contention stands revealed as
without real evidentiary support. First- Regarding
McCall's claim that Respondent's Shipping and Receiving
department was overstaffed, this trier of fact notes that
Respondent's general manager designated "two" workers
as constituting a normal complement Between April 1
and 15, however, Respondent had had two full-time
Shipping-Receiving department workers, plus two
part-time workers; one, Charles Johnson, was then newly
hired and subsequently transferred. During the April 16 -
April 30 period, one full-time worker was terminated, but
four were newly hired, with two of the latter subsequently
transferred. When the period in question ended,
Respondent had three full-time Shipping-Receiving
department workers, plus two part-time workers Between
May I and May 15, three newly hired workers were
designated for Shipping-Receiving department work; one
was subsequently transferred. When this period concluded,
Respondent's department in question had four full-time
workers, plus two part-time workers. And three of the
four full-time employees still working on May 15 -
Dwight, Collins and Kenneth Gay - were Otis Gay's
juniors, with respect to company seniority. These figures,
clearly, logically belie any present contention that
Respondent normally sought to maintain merely a
two-man Shipping and Receiving department crew.
MARCO PAPER PRODUCTS CO.
Second- Gay's May 15th transfer back to Shipping and
Receiving did not, per se, create a surplus. He merely
replaced Dwight, who was contemporaneously transferred
to Rewind Machine work. Third Regarding McCall's
baldly proffered "surplus" claim, Respondent has
proffered no supporting rationale. No contention has been
made that Respondent's business was declining; McCall
testified, rather, that the firm's business has become
"pretty stable year-round" with few peaks or valleys, save
for possibly sizeable construction industry declines. With
matters in this posture, Respondent's claimed economic
justification for Gay's termination can hardly be
considered persuasively substantiated. (The record
contains a copy of Gay's post-discharge claim for
unemployment compensation. When filing his claim, so
the document shows, Gay said he had been "layed off"
frgm Respondent's plant. This trier of fact does not,
however, consider such a declaration conclusive or
persuasive, either with regard to Respondent's actual
reason for Gay's challenged termination, or regarding the
nature of his belief with respect to particular causes which
might have dictated his termination. Unemployment
compensation claimants when filing claims - may not
know, then, their previous employer's actual reason for
discharging them And, particularly, when their previous
employer's stated reason for terminating them would be
least likely to forestall the routine processing of their
claims, they can hardly be faulted for proffering that
stated reason - whether or not they might, themselves,
consider it pretextual.)
To the contrary, indeed, Respondent's failure to recall
Gay following his purported "layoff" provides persuasive
support for the contrary, conclusion, that his termination
was dictated by non-business considerations. First The
testimony and documentary material with respect to Gay's
work record discloses that his "progress" within
Respondent's plant had been relatively rapid; that he was
never criticized regarding his work; and that, in fact,
Leadman Toll had complimented him regarding his
Rewind Machine performance. While a witness, McCall
conceded, consistently, that Gay's performance within
Respondent's Shipping and Receiving and Processing
departments had been satisfactory McCall further
conceded that - so far as part-time workers were
concerned he preferred to recall those who had
performed competently. Gay, however, was never recalled.
Some 2 weeks following Gay's termination, Respondent's
general manager did try to recall John Collins, another
full-time Shipping-Receiving department worker who had
been terminated May 22, purportedly for lack of work.
When Collins (whose seniority with Respondent had been
less than Gay's) declined the offer, no secondary effort
was made to communicate with Gay, despite his prior
"satisfactory" record within Respondent's
Shipping-Receiving department. No rationale for this
ommission has been proffered. Second- Since Gay's
discharge, Respondent's management - faced with
normal turnover problems - has had to hire some five to
six replacements for Shipping and Receiving department
work, plus two Processing department replacements. Gay,
however, has never been contacted for possible rehire;
Respondent's defensive presentation reflects no showing
whatsoever calculated to explain this failure to consider
Gay for recall.
With matters in this posture, I find merit in General
Counsel's contention that Gay was discriminatorily
discharged. By way of summary The record reveals that
Gay had been Complainant Union's principal protagonist
199
within Respondent ' s plant. Since the plant is small, and
since Gay ' s Union sympathies were openly manifested,
Respondent ' s management - so I have found -
necessarily became aware of his Union activities He was
discharged at the height of Complainant Union's
campaign , directly following Respondent ' s receipt of
Complainant Union's letter claiming to represent a
majority of the plant's production and maintenance
workers. This coincidence in timing, between Gay's
substantial Union activity , Complainant Union ' s demand
for recognition , and Gay's discharge, provides strong
prima facie support for a conclusion that his termination
was discriminatorily motivated As General Counsel notes:
Respondent , realizing the Union was now actively
engaged in an organizational campaign , moved to chill
the activity and fired Gay
This, despite Gay's service seniority over several fellow
workers, and despite his conceded competence in work
assignments which he was still physically qualified to
perform Respondent ' s purported economic justification
for Gay's termination - proffered to overcome General
Counsel's presentation - has been found insubstantial; its
lack of substance not only dictates its rejection, but
strengthens General Counsel ' s prima facie case, providing
further support for a conclusion that Gay was dismissed
because of his participation in Complainant Union's
campaign . Shattuck Denn Mining Corporation v.
N L R B., 362 F 2d 466 (C.A. 9). 1 so find.
2. Sparkman ' s Pay Raise
With respect to Robert Sparkman ' s wage increase , little
more need be said Pursuant to well-established decisional
doctrine , this Board closely scrutinizes wage increases
granted subsequent to the filing of representation
petitions . The Baltimore Catering Company, 148 NLRB
970, 973, West Texas Equipment Company, 142 NLRB
1358 Whenever the circumstantial context within which a
wage increase is granted warrants a determination that
such a challenged raise was effectuated for the purpose of
influencing employees with regard to their choice of
bargaining representatives , General Counsel has made out
a prima facie case of statutorily-proscribed interference,
restraint and coercion N.L R B v. Exchange Parts
Company , 375 U.S 405 . Then , with matters in such a
posture, the burden of coming forward with evidence
calculated to establish some justifiable motive necessarily
shifts to the employer concerned . The Baltimore Catering
Company, supra , Glosser Bros ., Inc., 120 NLRB 965. Let
us apply these principles . The record , herein, clearly shows
that McCall granted Sparkman a wage increase promptly
upon learning of Sparkman's Union sympathies The wage
increase lifted Sparkman 's hourly rate substantially above
that which a number of Respondent ' s full-time production
workers with greater company seniority were then
receiving; reference has previously been made to the fact
that no more than two hourly - rated workers, with
substantially greater seniority , were receiving more. Upon
this record, General Counsel herein - within my view -
has sustained his contention that Sparkman 's raise was
calculated to interfere materially with the organizational
rights of Respondent ' s workers . Cf. Bryant Chucking
Grinder Company, 160 NLRB 1526, 1529. Respondent's
proffered counter that Sparkman ' s relatively notable' raise
was, despite its timing, granted on merit - to a worker
with no more than one month's limited experience
compassing no more than two of the firm's three regular
production classifications - simply carries no persuasive
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
power whatsoever.
With respect to certain subsequent wage increases
granted before the Board-conduct election was held within
Respondent's plant, I was persuaded, during the hearing,
that Respondent's testimonial showing of justifiable
motive should be considered sufficient to overcome
General Counsel's presentation regarding a possible
statutory violation Respondent's claim of merit for
Sparkman's raise, however, lacks any comparably
persuasive factual underpinning, the record, within my
view, preponderantly supports a determination, rather,
that General Manager McCall took his challenged step
with the express purpose of impinging upon his employees'
freedom of choice for or against unionization, and that his
action was reasonably calculated to have that effect.
N L R B v. Exchange Parts Company, supra My
conclusion stands buttressed by the fact that Respondent's
questionable conduct - with respect to Sparkman s
specifically - reflects no really isolated reaction Gay's
prior discharge, herein found violative of law, provides a
significant sign with respect to Respondent's real motive,
so far as Sparkman was concerned. His wage increase,
clearly, constituted an unfair labor practice.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct set forth in section III,
above, since it occurred in connection with Respondent's
business operations described in General Counsel's
Complaint and concededly described correctly therein,
had, and continues to have, a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, absent correction such conduct would
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon
the entire record in this case, I make the following
conclusions of law.
1. Marco Paper Products Co , is an employer within
the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce,
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2 General Truckdrivers, Warehousemen and Helpers
Union, Local 624, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act, as amended, which represents
certain of Respondent's workers for collective-bargaining
purposes
3. Respondent, by granting a pay raise to Robert
Sparkman for the purpose of interfering with his freedom
of choice, and that of other employees, for or against
unionization, interfered with, restrained, or coerced its
employees with respect to their exercise of a right
statutorily guaranteed. Thereby, Respondent did engage
in, and continues to engage in, an unfair labor practice
affecting commerce, within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act, as amended
4 Respondent, by its discharge of Otis Gay because of
his activities on behalf of Complainant Union herein, has
discriminated, and continues to discriminate, with regard
to the hire and tenure and terms and conditions of
employment of its employees, thus discouraging their
Union membership and their participation in concerted
activities for mutual aid or protection Thereby,
Respondent did engage in, and continues to engage in
unfair labor practices affecting commerce, within the
meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of
the Act, as amended
V THE REMEDY
Since I have found that Respondent engaged, and
continues to engage, in certain unfair labor practices
which affect commerce I shall recommend that it be
ordered to cease and desist therefrom, and to take certain
affirmative action, including the posting of appropriate
notices, designed to effectuate the policies of the Act, as
amended
Specifically, since I have found that Respondent
violated Section 8(a)(1) and (3) of the statute through the
discriminatory discharge of Otis Gay, I shall recommend
that Respondent be required to offer him immediate and
full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges It will be recommended, further, that
Respondent be required to make this worker whole for
any pay losses which he may have suffered because of the
discrimination practiced against him, by paying him a
sum of money equal to that which he would have earned
as wages between May 15, 1968, and the date of his
reinstatement, less his net earnings during such period.
Backpay for the worker designated should be computed by
calendar quarters, pursuant to the formula which the
Board now uses. F W Woolworth Company, 90 NLRB
289. Interest thereon should likewise be paid, computed at
6 percent per year See Isis Plumbing & Heating Co , 138
NLRB 716, in this connection.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and
upon the entire record in the case, it is recommended that
the Board, pursuant to Section 10(c) of the National
Labor Relations Act, as amended, order that Respondent,
Marco Paper Products Company, its officers, agents,
successors, and assigns, shall
1. Cease and desist from.
(a) Discouraging workers from becoming or remaining
members of General Truckdrivers, Warehousemen and
Helpers Union, Local 624, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or from participating in Union or other
concerted activity for the purpose of collective bargaining
or other mutual aid or protection, by discharging them, or
by discriminating in any other manner with respect to
their hire or tenure of employment, or any term or
condition of their employment, except as authorized under
Section 8(a)(3) of the Act, as amended.
(b) Interfering with, restraining, or coercing employees
by discharges, or by granting raises reasonably calculated
to influence them in their exercise of free choice with
respect to union representation, or by any like or related
conduct, with respect to their exercise of rights which the
National Labor Relations Act, as amended, guarantees.
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act, as
amended:
MARCO PAPER PRODUCTS CO
(a) Offer Otis Gay immediate and full reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any pay losses which he may
have suffered by reason of the discrimination practiced
against him, consistently with the requirements set forth
within the "remedy" section of this Decision
(b) Notify Otis Gay if presently serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act, and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(c) Preserve and make available to the Board or its
agent, upon request, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant and necessary to analyze and compute the
amounts of backpay due under the terms of this Board
Order.
(d) Post at its place of business in San Rafael,
California, copies of the notice attached to this report as
an appendix' Copies of the notice to be furnished by the
Regional Director for Region 20, as the Board's agent,
shall be posted, immediately upon their receipt, after
being duly signed by Respondent's representative When
posted, they shall remain posted for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted Reasonable
steps shall be taken by Respondent to insuie that these
notices are not altered, defaced or covered by any other
material.
(e) File with the Regional Director for Region 20, as
the Board's agent, within 20 days from the date of service
of this Trial Examiner's Decision, a written statement
setting forth the manner and form in which it has
complied with these recommendations 2
' 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 said notice 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 the Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
201
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
After a hearing, during which all sides had the chance
to give evidence, it has been determined that this company
has violated the National Labor Relations Act In order
to remedy such conduct, we have been required to post
this notice
The National Labor Relations Act gives all employees
these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
they freely choose
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights.
WE WILL immediately offer to reinstate Otis Gay to
his former or substantially equivalent position, without
any change in the seniority or other privileges which he
enjoyed before we discharged him, and we will pay him
any money which he may have lost as a result of our
discrimination against him
WE WILL notify Otis Gay if he is presently serving in
the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
Dated By
MARCO PAPER PRODUCTS
COMPANY
(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, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.