Nationwide Papers Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1030 (N.L.R.B. 1964)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing position. , There is in the record testimony concerning a few incidents which may
arguably cause one to conclude that Sir James exercised at times a certain control
over the manner in which employees of Redmond performed their work. I consider
these instances, however, to be trivial and of minimal importance. Sir James paid
for a service and Redmond supplied it. I think it to be amply clear that Sir James
did not in measurable degree exercise any control over the means by which Redmond
performed her contract. I conclude therefore that Redmond, in her relation to Sir
James, was an independent contractor and that a joint-employer arrangement is not
established by the evidence.
There is no contention that Sir James, independently of Redmond, committed any
sort of unfair labor practice. It is the theory of the complaint that Redmond
violated the Act and that Sir James because Redmond was his agent or because they
were joint employers must answer. Having found that Redmond was an independent
contractor and that she and Sir James were not jointly the employers of those who
worked for Redmond, the complaint against Sir James must be dismissed.
The record shows the value of the services rendered to Sir James by Redmond for
the 3-month period from October 1 through December 31, to have been about
$8,000. Projecting this 3-month experience, it is obvious that Redmond supplied
services to Sir James at the rate of $32,000 a year. The Board will assert jurisdic-
tion over a nonretail enterprise such as that engaged in by Redmond if Redmond
supplied services to Sir James having a value of $50,000 a year. The evidence
establishes no such sum, and, in consequence, I find that it will not effectuate the
policies of the Act to assert jurisdiction over the operations of Redmond .4 I will
not, therefore, review the evidence relating to the commission of unfair labor prac-
tices 5 and will recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Sir James, Inc., is an employer within the meaning of Section 2(2) of the Act
engaged in commerce. or in an activity affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Freda Redmond is an independent contractor and an employer within the
meaning of Section 2(2) of the Act.
3. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
4. Sir James, Inc., and Freda Redmond are not joint employers and do not con-
stitute a single employer.
5. Sir James, Inc., has not engaged in the commission of unfair labor practices.
6. It will not effectuate the policies of the Act to assert jurisdiction over the ac-
tivities of Freda Redmond.
RECOMMENDED ORDER
Upon the considerations set forth above, it is hereby recommended that the com-
plaint be dismissed.
See Siemona Mailing Service, 122 NLRB 81.
In respect to unfair labor practices evidence was adduced tending to establish that one
of the reasons for the termination of the business relation between Sir James and Redmond
and the consequent discharge of Redmond ' s employees was the filing of a representation
petition by the Union. Neither the General Counsel nor the Union desires that any remedial
order requiring that the discharged employees be made whole for any loss of earnings be
directed against Redmond alone.
Federal Envelope Company, Omaha, Nebraska , a Division of
Nationwide Papers Incorporated and The International Print-
ing Pressmen and Assistants ' Union of North America, Local
412, AFL-CIO. Cases Nos._ 17-CA-2204 and 17-RC-4165. June
29, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION .
On March 17, 1964, Trial Examiner Stanley N. Ohlbaum issued
his Decision and Report on Objections to Election in the above-
- 147 NLRB No. 111.
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1031
entitled proceeding, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices, recommending that it
cease and desist therefrom and take certain affirmative action, and
finding that the Respondent had interfered with the election of May
24, 1963, and recommending that it be set aside, as set forth in the
attached Trial Examiner's Decision and Report on Objections to Elec-
tion. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision and Report, the exceptions and brief, and the entire
record in the cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, and in Case No. 17-RC-4165
makes the following additional findings :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
4. The following employees, as stipulated by the parties, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act: All production and main-
tenance employees, including machinists and warehousemen at the
Employer's Omaha, Nebraska, plant, excluding office clerical employ-
ees, professional employees, guards, and supervisors as defined in the
Act, and janitors.
ORDER
-Pursuant to Section 10(c) . of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner with the following additions i and
1 The Trial Examiner's Recommended Order is hereby amended by changing the designa-
tion of paragraph 1(f) to 1(g) and inserting the following as 1(f):
(f) Discouraging membership in The International Printing Pressmen and Assist-
ants' Union of North America, Local 412, AFL-CIO, or in any other labor organiza-
tion , by discharging any of its employees or by discriminating against its employees
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orders that the Respondent, Federal Envelope Company, Omaha,
Nebraska, a division of Nationwide Papers Incorporated, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as modified herein.
[The Board set aside the election conducted in Case No. 17-RC-
4165 on May 24,1963.]
[Text of Direction of Second Election omitted from publication.] 2
In any other manner in regard to their hire or tenure of employment or any term or
condition of their employment.
The attached notice marked "Appendix" to the Trial Examiner's Decision and Report Is
modified as follows:
1. Add the following as the seventh subparagraph therein:
wE WILL NOT discourage membership in The International Printing Pressmen and
Assistants' Union of North America, Local 412, AFL-CIO, or In any other labor
organization, by discharging any of our employees, or by discriminating against them
In any other manner in regard to their hire or tenure of employment or any term or
condition of employment.
2. Change the last line on page 1047 therein to read :
. . . on June 7 effective June 2 . . . .
s In the event that the Respondent fails or refuses to comply with the terms of the Order
in Case No. 17-CA-2204, the Regional Director Is also authorized to conduct the new elec-
tion directed herein upon the written request of the Union. Ideal Baking Company of
Tennessee, Inc., 143 NLRB 546.
TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS
TO ELECTION
STATEMENT OF THE CASE
These are consolidated cases in which a hearing was held before Trial Examiner
Stanley N. Ohlbaum in Omaha, Nebraska, on October 15, 1963,1 with all parties
participating throughout by counsel or other representative. The entire record and
briefs submitted subsequent to the hearing have been considered.
Case No. 17-CA-2204 involves charges of unfair labor practices filed on June 10
by The International Printing Pressmen and Assistants' Union of North America,
Local 412, AFL-CIO, herein called the Union, resulting in issuance of a complaint
on August 9 (amended August 14) by General Counsel of the Board (through the
Regional Director for the Seventeenth Region) against Federal Envelope Company,
Omaha, Nebraska, a Division of Nationwide Papers Incorporated, herein called the
Respondent, Employer, or Company, alleging violations of Sections 8(a)(1) and
(3) and 2(6) and (7) of the National Labor Relations Act, as amended, herein
called the Act, by reason of employer interrogations, threats of discharge, and other
reprisals, and discharge and refusal to reinstate an employee, because of employee
participation in concerted activities guaranteed to employees under the Act. These
allegations are denied by Respondent.
Case No. 17-RC-4165 arises out of a representation election conducted under
Board auspices among Respondent's employees on May 24, which the Union lost by
a vote of 53 to 50. The Union's objections of May 29 (filed May 31) to this elec-
tion were investigated by the Regional Director for the Seventeenth Region, who on
June 28 issued his report on objections and recommendations setting aside the elec-
tion because of certain preelection conduct on the part of the Employer, who on
July 8 filed exceptions (dated July 6) with the Board to this report and recom-
mendations. On August 9 the Board issued an order directing a hearing of the RC
case before a Hearing Officer, and on August 16 the Board amended this order by
authorizing a consolidated hearing of the RC case and the aforedescribed CA case
before a Trial Examiner. The Regional Director on August 20 accordingly con-
solidated the cases for hearing before a Trial Examiner.
1 Reference throughout are to 1963 unless otherwise specified.
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1033
Upon the entire record, and from my observation of the witnesses in these con-,
solidated cases, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
At all material times, Respondent corporation has operated an envelope manu-
facturing plant in Omaha, Nebraska, involving, during the 12-month representative
period prior to issuance of the complaint, interstate purchases exceeding $50,000
annually and interstate shipments exceeding $50,000 annually. Respondent has, at
all such times, been and is an employer within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all material times the Union has been and is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On May 2 the Union filed a petition with the Board for certification as the desig-
nated bargaining representative of an appropriate unit of Respondent's employees.
Various activities on the part of Respondent took place thereafter which it is alleged
constituted interference with, and restraint and coercion of, its employees, violative
of the Act.
A. Interference, interrogation, and threats of reprisals.
Respondent's employees Leonard, Thornburg, and Jandl, regarded by it as supervi-
sory personnel, testified as General Counsel's witnesses pursuant to subpena, and its
sales manager, Boldt, also testified as General Counsel's witness, with regard to ac-
tivities closely preceding and following the May 24 election. Leonard, a "working
foreman" 2 employed by Respondent for 13 years, testified that a few days before the
election, in response to questions by Plant Manager Johnson, he told Johnson that
he thought the folding department was "a hundred per cent company." Johnson said
"he had a couple in mind that he thought might vote union and he mentioned them,"
but Leonard did not agree. On the day after the election (May 25), Leonard went
into the outer office "to find out how Johnson had felt about the election," and in
the presence of various management personnel Johnson remarked to Leonard that
he thought the election was "too damn close," whereupon all of them commenced
"trying to figure out who actually could have made it that close. So we started
picking out names and discussing them." During the week after the election, Leonard
was asked by Johnson in the latter's office if he had "heard of any talk about how
the vote went," and when Leonard said no, Johnson asked him to "keep [your] eyes
and ears open and find out anybody that was causing any trouble and talking that
voted for the union and asked me [Leonard] if I would bring in a list of names and
eventually that we would try to weed -them out and get rid of them." 3 Although
apparently he executed this mission of obtaining and purveying information at least
in part, according to Leonard he did so without communicating his mission, who was
behind it, or the described views of management to other employees; as expressed
by him, "It was in confidence and confidential. It was just in confidence, between
manager and foreman."
2 Although Leonard testified he is a "working foreman" of Respondent, he was not so
identified on the May 6 list of employees and jobs submitted to the Board by Respondent,
but as a "machine fold adjustor" (the same capacity as other employees, such as Neal,
who are not even now claimed to be "supervisors"-as Respondent now claims Leonard
to have been), and he voted without challenge In the May 24'election.
3 Although there is no admission that such a list was actually furnished by Leonard to
Johnson, the evidence indicates that names of employees were orally mentioned ; and there
is no reason to suppose that a written list, or at least one in Leonard's handwriting, was
necessary or important, since such a written list could obviously have been compiled by
Johnson upon the basis of names orally furnished to him by Leonard ; nor Is there any
indication that Johnson's direction or request for such a list-assuming he Intended a
written list-was ever countermanded or withdrawn. Leonard also testified that no em-
ployee in his department had been terminated because of union activities as of the date of
the hearing herein, but he also testified that Johnson had never Indicated any change in
his announced intention to weed out employees favoring the Union.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thornburg, likewise testifying under General Counsel's subpena, stated that he
had been employed by Respondent since 1959 (and before that, since 1940, by
Respondent's parent Carpenter Paper Company, herein called Carpenter Paper)
and since the beginning of 1963 as a "widerange folding department supervisor." 4
He testified that he had had three or four conversations regarding the Union in
the 2- or 3-week period preceding and another one to three conversations after the
May 24 election, with Plant Manager Johnson. Johnson "said that he didn't want
a union in," and they discussed names of employees in Thornburg's department who
favored the Union and "what reason they might be for the union, what complaint
or grievance they might have against the company. . Mr. Johnson wondered why
they, whether they [employees favoring the Union] would have a particular reason
to vote for the union; why they were unhappy. He supposed the only reason they
might want a union was because they were unhappy about some particular thing."
In one of these discussions, Plant Superintendent Brown "said that he had worked
in the plant for some 30 years and never had a union yet or had reason to see fit
to bring in one, and he couldn't see why they needed one now or why anyone would
want one, what benefit they would gain from it or things in that vein." At the
request of these top management officials to Thornburg, he supplied the names of
the employees in his department who favored the Union. As to some, Thornburg
also indicated "what I thought the person might be unhappy about or might have a
grievance about, and maybe people might say something to me that they wouldn't
say to somebody else why they were unhappy." In the week after the election,
Johnson discussed with him the surprising closeness of the election vote from
management's point of view, and who in Thornburg's department might have voted
for the Union; and, in response to Johnson's inquiry, Thornburg advanced names
of additional suspects who might have been favorably inclined toward the Union.
Thornburg testified that he succeeded in acquiring his information about employee
attitudes toward the Union which he passed on to Johnson, from talking to the other
employees; as he expressed it, "Not come right out and saying, `Are you going to
vote for the union,' but just talking. This union election was the main topic of
conversation for 2 or 3 weeks before it actually came about and I worked with
these people every day and talked with them every day . . He also passed
on to the employees the Company's attitude with regard to the Union; as he ex-
pressed it, ". . . I conveyed the company's attitude or. what they thought would
happen if the union came in . They thought it wouldn't be as good. The people
wouldn't have as good a deal then as they have now. The relationship between
management and personnel would be gone I think is the word for it, and they would
have to deal with a middleman, and I conveyed information such as this back and
forth." When employees asked him how the advent of the Union would affect the
pay scale, after checking with management he reported back to them that "On pay
scale they said it wouldn't change. I was told it couldn't go down, that you couldn't
reduce a person's pay, but in all likelihood, it wouldn't go up either . As to
insurance and pensions in the event of unionization, he reported back to inquiring
employees that this would "have to be worked out" but that in a comparable but
apparently unionized envelope factory in the same geographical area although the
wage scale was about the same, "their pension plan was less than our pension plan,
and that was the only information we had to go on, another envelope plant in our
general locality." In response to the question on cross-examination (i.e.. by Re-
spondent's own representative), "When you had these discussions in the office with
Mr. Johnson and this other half dozen [management] people, did Mr. Johnson ever
say that he was going to fire anybody for union activities?" Thornburg replied, "He
never told me directly he was going to."
Jandl, likewise testifying under General Counsel's subpena. stated that he had
been in Respondent's employ for about 9 years, and is now a "foreman" or "work-
4 Here, again, as in the case of Leonard, it is noted that Thornburg was not so identified
by Respondent on the May 6 list of its employees and their jobs which Respondent sub-
mitted to the Board in connection with voting eligibility at the May 24 election. In that
list, Thornburg was described as a "machine fold adjustor apprentice," the same as other
employees (e.g., Dolezal, below) who were concededly not "supervisors." In Thornburg's
case, however, it is to be observed that he acted as Respondent's official observer at the
May 24'election, and signed both the official certification on conduct of election and tally
of ballots forms on behalf of Respondent.
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1035
ing foreman" 5 in the box department . He testified that during the month before
the May 24 election, Plant Manager Johnson discussed the Union with him "on
numerous occasions " and "Mr. Johnson told me that if the union got in that, he
either said he would or could cut out the overtime and he also told me if the union
got in, that a person would 6 not be able , when he runs out of work in his depart-
ment, to be transferred over to another department . He would be sent home. And
at the present it isn 't that way ." At the time Johnson told this to Jandi, overtime
was authorized and employees running out of work in their departments would be
transferred to other departments . Jandi testified that he passed this information
obtained from Plant Manager Johnson along the line to the employees . Jandl also
testified that before the election he told Johnson, in response to the latter 's inquires,
how he ( Jandi ) thought the individual employees in his department were disposed
toward the Union; and that right after the May 24 election Johnson told him that
he would "get rid of anybody that was strong union, if they goofed up in their jobs,
made mistakes in their work ," and that he (Johnson ) wanted to form a shop com-
mittee of employees to "try to figure out what can be done to help the people down
there." 7
Boldt, Respondent 's sales manager, also called by General Counsel, testified that
at least a week before the May 24 election certain specimen union contracts were
circulated around among Respondent 's employees in the plant, but that be was
ignorant of the source or manner of selection of the particular specimen contracts.
He did testify , however, that he knew that these contracts involved the Charging
Union herein , one of them being with a Kansas City envelope company 8 and one
"from the West Coast plant"; and that he knew that the specimen or sample con-
tracts which were being circulated around among the employees contained terms
and provisions ( including pay scales ) less favorable than those which existed at
Respondent 's plant in the absence of any contract . When the employees pointed
out the wage scale provision to him in the "specimen" contract being circulated
around they said to him , according to his testimony , "that is less pay than we are
getting," but he did not discuss this with them nor clarify the situation for them
in any way.
Jensen , a former night warehouseman in Respondent 's employ, who was terminated
under circumstances discussed below, testified that soon after Plant Manager John=
son had discussed with him , shortly before the May 24 election, the possibility of
a better job for Jensen at Carpenter Paper and Jensen 's decision to leave Respond-
ent's employ if he could not secure better work, Johnson asked Jensen "what I
thought about the union and the election that was coming up, and I told him that
I was undecided about it and the way I felt I would just as soon not even vote in
the election since I was not going to be a permanent employee of the company,
but Mr. Johnson said that he wanted me to vote and I was a regular employee and
should vote in the election . He said , since you are not going to be here, the union
couldn't do you any good , or something to that effect , if it got in anyway , and I said,
`That's true , it couldn 't.' And he said that since I was not going to be there and since
it wouldn 't affect me , that he would just as soon that I voted against the union, and
I said something , but I cant remember exactly what I said, but I didn't say yes or
no what I would do on it and that was all the conversation there was there." Jensen
served as the union observer at the May 24 election..
The foregoing testimony of witnesses Leonard , Thornburg, Jandl, Boldt, and
Jensen-all but Jensen of whom are claimed by Respondent to be its own super-
visors, or top management -related 9-was for practical purposes unimpeached, and
5 Although he described himself as a "foreman" on direct examination, he called himself
a "working foreman" on cross-examination. Respondent's May 6 list of employees and jobs
submitted to the Board for the May 24 election voting purposes identifies him as a "work-
ing foreman," which appears to accord with the rather lengthy exploration, in his case
alone, by counsel, of his duties, responsibilities, and activities. ' He, too, voted without
challenge in the extremely close May 24 election.
0In response to a question on cross-examination (i.e., by Respondent's representative),
Jandl expressly confirmed his use of the word "would" (in contradistinction to "could"),
testifying positively that "Mr. 'Johnson said they would be sent home; they would not be
transferred to another department."
7 Jandi indicated he did not pass this particular conversation on to the employees.
8 Minikes, personnel manager of Respondent's parent, Carpenter Paper, testified this was
a competing envelope plant.
9 Boldt. -
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is credited. Not only did the testimonial demeanor of these witnesses impress me
extremely favorably, but I have also taken into account that all, except for Jensen,
are still employed by Respondent and therefore, by testifying as they did, in a sense
exposed themselves to economic peril in the form of job retaliation of various varie-
ties, and that their testimony in that sense was contrary to their own best interests,
so to speak.1°
The "Supervisory Status" Question
In his brief (as at the hearing) Respondent urges that findings of violations of
Section 8(a) (1) of the Act may not be predicated upon conversations (apparently
whatever their nature) between Respondent's plant manager, Johnson, and Leonard,
Thornburg, Jandl, and others whom it regards as supervisory personnel, on the
theory that such discussions merely constituted managerial dealings with supervisors.
I cannot agree. Although the question of the supervisory status, within the statutory
definition," of Leonard, Thornburg, and Jandl at the particular controlling time or
times involved in the case of each, is not wholly free from doubt upon the record
presented,12 that question, with regard to each of those employees, need not be here
resolved in view of the thrust of their testimony on the substantive (i.e., unfair labor
practice) issues here involved, since it is clear that whether or not they were "super-
visors" their testimony establishes Respondent to have engaged in unfair labor prac-
tices in violation of Section 8(a) (1) of the Act. Thus, if, on the one hand, they
were not "supervisors" but merely rank-and-file personnel, their uncontradicted
testimony establishes that Respondent through Plant Manager Johnson engaged in
interrogation , interference , restraint , and coercion of them as rank-and-file employ-
ees, and also through them of other rank-and-file employees , in violation of Section
8(a)(1).13 If, on the other hand, they are regarded as "supervisors ," their un-
contradicted testimony also establishes that Respondent through Plant Manager
Johnson violated Section 8 ( a)(I) by directing them as supervisors to engage in un-
lawful interrogation , interference , restraint , and coercion , and also that they them-
selves as such supervisors engaged in such violations of Section 8(a) (1) both through
their own activities on behalf of Respondent and also by passing on to the employ-
ees the threats and related matters communicated to them by Johnson . 14 It is,
10Cf. Georgia Rug bfill, 131 NLRB 1304 , 1305 , footnote 2, modified on other grounds
308 F. 2d 89 (C.A.. 5).
"Act, Section 2(11).
12 Involved are such factors or elements as the following : the precise job duties and
activities of each during the period here in question ; whether they responsibly directed
other employees; and the fact that on the list furnished by Respondent to the Board for
the May 24 election voting eligibility purposes , the Employer listed them as employees.
Job title in itself is of course not determinative of the issue of supervisory status. Red
Star Express Lines of Auburn, Inc. v. N.L.R.B., 196 F. 2d 78, 80 (C.A. 2).
Although it is true that even a finding in an earlier representation case that an em-
ployee is not a supervisor does not finally or conclusively resolve that question for pur-
poses of a subsequent unfair labor practice case (Leonard Niederriter Company, Inc., 130
NLRB 113, 115; Southern Airways Company, 124 NLRB 749, 750, footnote 2, modified
on other grounds 290 F . 2d 519 , 522 (C .A. 5), the fact that an employee is permitted by
the employer to vote without challenge is an element to be taken into consideration on
the question of supervisory status. Plastics Industrial Products , Inc., 139 NLRB 1066,
1068 ; cf. Birmingham Fabricating Company, 140 NLRB 640, 642.
13 The Great Atlantic of Pacific Tea Company, Inc., 144 NLRB 1571 ; Bonnie Bourne, An
Individual, doing business ax Bourne Co ., 144 NLRB 805 . Even the "right of an employer
to get employees to become campaigners on its behalf " has been judicially questioned as a
possibly "impermissible intrusion into the statutory free will of fellow employees in the
selection of the bargaining agent." Hendrix Manufacturing Company, Inc . v. N.L.R.B.,
321 F. 2d 100, 106 (C.A. 5).
14 There can be no doubt that an employer is responsible for interrogation and other un-
fair labor practices of his supervisors , particularly when, as herein , carried out at his ex-
press behest. Cf. N.L.R.B. v. Chautauqua Hardware Corporation, 192 F. 2d 492 (C.A. 2) ;
Burrell Metal Products Corp., 134 NLRB 921 ; Lee-Rowan Manufacturing Company, 129
NLRB 980 . This is true even where the supervisors obtain the information in "friendly"
fashion or through "friendliness " with rank -and-file employees . Daniel Construction
Company, Inc., 145 NLRB 1397 . Cf. N.L.R.B. v. Talladega Cotton Factory , Inc., 213 F.
2d 208 (C.A. 5). Certainly at least Thornburg was held out by Respondent as a super-
visor . So far as rank-and -file employees were concerned , he was invested with supervisory
raiment and authority , rendering Respondent chargeable for his conduct . Cf. Birmingham
Fabricating Company, 140 NLRB 640, 641.
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1037
accordingly , hereby found that whether or not Leonard, Thornburg , and Jandi were
"supervisors ," Respondent rthrough them as well as Plant Manager Johnson engaged
in May in unlawful interrogation , interference , restraint , and coercion of employees,
as "aforedescribed , in violation of Section 8(a)(1) of the Act, by interrogating its
employees with respect to their union views, desires , activities , and Board -conducted
voting intentions and votes ; by instructing its supervisors and, managerial or other
personnel to inquire into and report on the union views, desires , activities, and
Board-conducted voting intentions and views of its employees , and by carrying out
such instructions ; by threatening its employees with economic reprisals for engaging
in organizational activities protected by the Act ; and by indicating the futility of
organizational . activities , including collective bargaining , guaranteed by the Act.
B. Tate's preelection speech of May 23
On Monday , May 20, Respondent 's employees were assembled at the plant and
addressed for about an hour, on company time , by President Hoagland in con-
nection with the election scheduled for Friday of that week ( May 24 ). Hoagland's
speech is not here in issue. However , there is here in issue another preelection
speech delivered by John E. Tate ( Respondent 's representative herein and executive
vice president of Midwest Employers Council, Inc.) to the assembled day-shift em-
ployees for approximately an hour and a half right after their lunch hour, from
about 12:30 to 2 p.m. on Thursday ( May 23 ), the day before the election. Since
the election commenced at 3 p .m. on Friday , the Tate speech occurred approxi-
mately 26 to 25 hours before the election.
Although apparently the Tate speech of May 23 was tape-recorded , it is said that
because of mechanical defect or accident no recording is available . However, a
relatively consistent composite version of the speech emerged from the testimony
of a number of persons who heard it, including Respondent 's own claimed super-
visory 15 or managerial 1 6 personnel , as well as rank-and -file employees.17 Al-
though Tate did not testify regarding what he said in his speech , in a document dated
July 6, entitled "Respondent 's Exceptions to the Regional Director 's Report on
Objections to Election ' and Recommendations," he referred to some of the state-
ments in his speech . The credited composite account of Tate's speech , and its ante-
cedents, is as follows: A notice had been posted on the plant bulletin board
announcing a meeting of all plant personnel at 12:30 on the day before the election.
At the appointed time, Plant Manager Johnson introduced Tate to the assembled
employees and told them why he was there . According to Working Foreman
Leonard, Johnson introduced Tate as the man who "would be the company negotiator
and that he would try to tell us as much as he could of how an election is held and
brief us on what we could expect from the election ." Respondent 's Sales Manager
Boldt testified that Johnson described Tate as "an executive from the Midwest
Employers Council who was retained by our parent company [i .e., Carpenter Paper]
to represent us on labor matters." Plant Manager Johnson said that "It was the
last opportunity that we had to present management 's story to the employees to
the election , prior to the.election ." Respondent 's employee Miller testified that in
the introduction Johnson remarked that Tate "would give us an idea as to what
tomorrow would bring in regards to the vote ." I credit each of these versions of
Johnson's introduction of Tate.
According to the testimony of Leonard , Tate, after describing the mechanics of
the Board-conducted election scheduled for the following day, explained to the as-
sembled employees what they could expect if the Union got into the plant, asserting
that if he and the union negotiator should meet to bargain in the event the Union
were to be voted in, they would "start from nothing, from scratch ," so that with
regard to vacations and other benefits which the employees were then already enjoy-
ing, the bargaining would not start at the point the employees had already attained
without a union,18 but "from scratch . They start at nothing and they work up
to the point where they both agree." Tate also told the employees they "could
be called out on strike without a vote," that "it could take up to two years , as long
as two years to reach an agreement ," and that "during this [bargaining ] process
wages would be frozen ." Tate closed by adding "that if the union did get in, that
18 Leonard.
10 Boldt , Minikus, Pinkerton , and Johnson.
14 Miller , Dolezal , Neal, Kull, and Vasiliauskas.
o
18 Le ., 6 paid holidays annually ; and 1 week 's vacation after 1 year 's employment, 2
after 2 , and 3 after 15.
1038 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
he would be the company's negotiator and that he would write up a contract like
we had never seen before."
'01Miller, a printing press operator employed by Respoent for 9 years, testified
that in his speech Tate "gave a few examples of different unions that he had talked
on and negotiated with . . He gave us an example of one particular one, I think
it was in Grand Island, but I am not certain, that it drug out for 22 or 24 months";
that "wages would [or "could"] be frozen throughout the bargaining"; that all nego-
tiations "would start at the minimum of everything," including wages at $1.15 an
hour (instead of the then prevailing minimum of $1.25 an hour,19 and holidays at
one-as Tate put it, "Christmas or New Year's, and we could take our pick" (instead
of the 6 paid holidays then in effect); and as for vacations, despite the fact that Re-
spondent had for years been giving its employees paid vacations of from 1 to 3 weeks
annually based upon longevity, Tate emphasized that "the company does not have to
give you a paid vacation." Tate also indicated that the employees would have no
say as to whether or not to strike, asserting that "if the union representative said
strike, that we would strike in accordance with what he said, not with having em-
ployees have a vote." In closing, Tate added, "I will be the negotiator at the bar-
gaining table and . we will 'draw up a contract like you have never seen before."
Machine adjuster Dolezal's corroboration of Miller's account of the speech focuses
attention on an aspect of Tate's speech which stands out in the testimony of all of
the witnesses, including Respondent's own supervisory and managerial personnel;
namely, Tate's emphasis on the fact that in the event the Union were to be voted
in the next day, he (Tate) would be the negotiator and that negotiations on every
point (wages, vacations, holidays, etc.) would start "at the minimum of everything"
or at nothing,20 would be long drawn out, and that the end result would be a contract
"like we have never seen before." Machine adjuster Neal also corroborated this
description of the Tate speech, pointing out essentially the same matters, which it is
entirely clear from the testimony of all witnesses that Tate stressed; including the
concluding remark that in the event of a favorable union vote and consequent col-
lective bargaining, "he [Tate] would give us a contract the likes of which we had
never seen before." ( In connection with this, Tate took occasion to point out to
the employees that their selected negotiator, Union Representative Westbrook, was
not "very good competition" for Tate.) Respondent's former shipping clerk,
Kuil, and its present shipping clerk , Vasiliauskas , further corroborated these accounts
of the Tate speech , Vasiliauskas adding that Tate also "said that there would be no
raises."
Also consistently with the foregoing , Sales Manager Boldt testified that in his speech
Tate specifically directed the attention of the assembled employees to a collective
agreement which he had been negotiating for over 2 years, as well as to a collective
agreement "which he negotiated that made no provision for vacations or holidays,"
adding that "when they sat down to the bargaining table , the table would be clean,
we won't start with seven days vacation after a year [i.e., what the employees then
had, and had had for years] or anything like that," but at "no vacations"; that holidays
would likewise start with "no holidays"; that Tate was critical or skeptical of the bar-
gaining acumen of the person (Westbrook ) who would negotiate on behalf of the
employees in the event of a favorable Union. vote; "and the last question was an-
swered by Mr. Tate, you will never see a contract such as this" or "you will have a
contract like you have never seen before."
F. Donald Minikus , personnel manager of Respondent 's parent, Carpenter Paper
(which is in turn a division of Nationwide Paper Company), who also attended Tate's
lecture, further corroborated that Tate indicated that in his system of bargaining all
negotiations regarding employee benefits would start from the zero mark , regardless
of what the employees already had. Minikus also recounted Tate's denigration of
Westbrook's capabilities as a negotiator in contrast to his own; and he further testi-
fied that Tate told the assembled employees that "when an employee is under a union,
he said a small minority of a union will vote whether or not they can strike and their
vote will govern the rest of the employees." Tate's utterance of the latter statement
was additionally corroborated by the testimony of Respondent's office manager.
Pinkerton, who also recalled that Tate directed the attention of the employees whom
he was readying to vote the next day, to a contract which he had negotiated "in
"At the time of Tate's speech, Miller (a woman), for example, had attained a wage of
$1.74 per hour.
207.e., according to Dolezal, as well as the other witnesses, wages at $1.15 (far below
the $1.75 per hour which Dolezal was then receiving without the Union) ; vacations at
nothing, instead of the 1, 2, or 3 weeks annually then prevailing; and holidays at 1-
"take your pick, Christmas or New Year's," instead of the 6 prevailing.
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1039
which there was no increase in wages and no paid vacations ," and that Tate said,
. it would end up that nothing that the employees had at the time could be taken
into consideration at the negotiating table." In describing Tate's dramatic manner of
addressing the employees in emphasizing to them that "everything would start from
nothing, from scratch . We will wipe the table clean," Pinkerton, spreading
his hand out across the witness stand as though wiping it off, testified that this was
the gesture that Tate had used during the speech, "spreading his hands off in each
direction" just "as though he were cleaning the table off." 21 Plant Manager
Johnson's description of the Tate speech still further corroborated the emphasis on
his intention to conduct negotiations on Respondent 's behalf, in the- event of a
unionization vote the next day, on the basis of starting not with what Respondent was
already paying and otherwise giving its employees but at the lowest possible legal
minimum wage (i.e., $1.15 per hour, less than the minimum prevailing in the plant
and far less than what was actually being earned in the plant) and at essentially no
benefits-"a blank piece of paper"; that Tate's discussion to the employees dealt with
contracts which he-who would be Respondent's negotiator against Westbrook, an
opponent unworthy of his mettle-had negotiated , resulting in no vacations and no
holidays; and that Tate called attention to his "short" contract negotiations lasting
"190 days" and others up to 2 years.
Although, as already indicated, it was alleged that for mechanical reasons no
soundtrack or disc was available of Tate's recorded speech, and Tate did not choose
to testify at the hearing, there is in evidence a document which Tate filed on Re-
spondent's behalf with the Regional Director by way of exceptions to the latter's
report on the election and recommendation that it be set aside . In this document,
which is primarily conclusory and perorative in nature, Tate makes some references,
characterizations , and admissions pertaining to the contents of his speech . If care-
fully analyzed and restricted to actual words used , as distinguished from embellish-
ments, editorial emendations and supplementations , arguments , and conclusions, these
may not be significantly inconsistent with the aforequoted testimony at the hearing;
although , to be sure , some of Tate's characterizations have modifying or directional
appendages which result in their appearing to be tuned to a different semantic wave-
length , perhaps a lower fidelity system , so to speak , than the essentially consistent
sworn testimony of these numerous witnesses . In view of Tate's failure to testify,
the absence of production in evidence of a sound recording , and my highly favorable
reactions to the demeanor and credibility of the witnesses testifying as above de-
tailed , I credit the sworn testimony of the witnesses at the hearing as recounted.
Respondent 's contention that the foregoing statements by Tate were fully privileged
under Section 8(c) of the Act as "free speech " is in my opinion without merit. Tate's
speech was not a beaded series of discrete words and phrases strung together in a
lifeless vacuum ; rather , it meshed with contemporaneous , living events, taking its
character therefrom 22 The speech was part of a patterned course of coercive
conduct.
21 Pinkerton testified that Tate 's remark that any contract which might result from such
negotiations "would be like no contract they had ever seen" was in response to an em-
ployee's question whether the contract would be like the California or Kansas City con-
tracts which were being circulated around in the plant before the election ; implying that
Tate was merely indicating that since no contracts had as yet been negotiated , obviously
nobody had seen them yet and therefore they would not be the same as or "like" any con-
tract the employees had in fact seen. Because it is inconsistent with the testimony of
numerous other highly credible witnesses ( none of whom so testified ), as well as because
of the observed demeanor of Pinkerton as he testified in this particular, and my unwilling-
ness to believe that his memory on this detail could be so precise when it was otherwise
imprecise , and also his obvious partiality and interest , as well as the inherent improb-
ability of this farfetched account in the context of the record as a whole , I do not credit
Pinkerton ' s testimony in this aspect . Furthermore , if this is what Tate meant, I am cer-
tain his ability with vocabulary would easily have permitted him to say so in plain English.
22 "Words are not pebbles in alien juxtaposition ; they have only a communal existence ;
and not only does the meaning of each interpenetrate the other, but all in their aggregate
take their purport from the setting in which they are used , of which the relation between
the speaker and the hearer is perhaps the most important part . What to an outsider will
be no more than the vigorous presentation of a conviction , to an employee may be the
manifestation of a determination which it is not safe to thwart ." Learned Hand, J., in
N.L. R.B . v. Federbvsh Company, Inc., 121 F. 2d 954, 957 (C.A. 2). That, as elsewhere in
the law , it is inappropriate to lift individual statements out of context and treat them
in isolation in assessing unfair labor practice , see, e . g.: The Lord Baltimore Press, 142
NLRB 328; Oak Manufacturing Company, 141 NLRB 1323 ; Arch Beverage Corporation,
140 NLRB 1385, 1387.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any determination of the exact nature and effect of such statements can be made
only with due regard for the context of the statements, the characters and eco-
nomic positions of those who heard it, and the relationships existing between a
company and its employees 23
Evaluated in relationship to the total situation of which it formed a part, the Tate
speech is perceived in proper perspective as consisting of statements which, while
possibly innocuous taken individually and within a certain context, are, when grouped
together, threatening in an atmosphere, such as herein, of employer union animus
and unfair labor practices. The line separating coercive from noncoercive state-
ments "is not always easy to draw and cannot by any means always be drawn by
reference only to the words used. Words innocuous in themselves can take on a
sinister meaning in the context in which they are uttered." 24 In assaying the caliber
and thrust of the Tate speech-introduced by Respondent's manager to the assembled
employees as "an idea of what tomorrow will bring in regards to the vote"-in rela-
tion to contemporaneous events at the plant, it becomes apparent that the speech
was part of the total employer effort to suppress unionization of its plant through
programed unfair labor practices already described, climaxed by election-eve
oratory involving threats,25 deceptively misleading statements,26 and warnings of the
futility and hazard inherent in the exercise by the employees of their congressionally
guaranteed right to organize for collective bargaining.27
2N.L.R.13. v. Morris Fishman and Sons, Inc., 278 F. 2d 792, 796 (C.A. 3). Accord:
N.L.R.B. v. Wagner Iron Works, 220 F. 2d 126, 139 (C.A. 7), cert. denied 350 U.S. 981 ;
N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748, 751-752 (C.A. 9) ; Collins Baking Com-
pany v. N.L.R.B., 193 F. 2d 483, 486 (C.A. 5) ; Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d
732, 739 (C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v. Wilbur H. Ford, d/b/a Ford
Brothers, 170 F. 2d 735, 738 (C.A. 6).
24 Local 901, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America (El Imparcial, Inc.) v. Compton, Reg. Dir., 291 F. 2d 793, 797
(C.A. 1). For a recent reiteration by the Supreme Court that reliance may be placed
upon employer speech in association with employer conduct in totality in determining
whether the Act has been violated, cf. N.L.R.B. v. Exchange Parts Company, 375 U.S.
405, 409, footnote 3.
25 E.g., reduction of existing wage scales and loss of existing vacations, holidays, and
other benefits, in "startling] from nothing, from scratch . . . . We will wipe the table
clean." An employer's statements that "if the union got in and we started negotia-
tions . . . everything would be wiped clean" and that the bargaining would "start from
scratch" have been held to be outside of the protection of Section 8(c) and in violation
of Section 8(a) (1). N.L.R.B. v. Marsh Supermarkets, Inc., 227 F. 2d 109 (C.A. 7). See
also: Hendrix Manufacturing= Company, Inc. v. N.L.R.B., 321 F. 2d 100, 104 (C.A. 5) ;
Surprenant Mfg. Co., 144 NLRB 507. Cf. N.L.R.B. v. Imperial-Eastman Corp., 322 F. 2d
679, 680 (C.A. 7). Section 8(c) explicitly excludes threatening statements from the ambit
of privileged expression. "The remedial function of Section 8(c) is to protect non-
coercive speech by employer and labor organization alike in furtherance of a lawful object.
It serves that purpose adequately without extending its protection to speech or picketing
in furtherance of unfair labor practices . . . International Brotherhood of Electrical
Workers, Local 501, et at. (Samuel Langer) v. N.L.R.B., 341 U.S. 694, 704.
20 E.g., that wages and benefits would be frozen while' negotiations were carried on for
2 or more years ; that employees would have neither vote nor voice about striking; etc.
Cf. Celanese Corporation of America v. N.L.R.B., 291 F. 2d 224, 226 (C.A. 7), cert. denied
36S U.S. 925. Factual misstatements and misrepresentations are not within the "free
speech" privilege of Section 8(c) of the Act, which by its terms is limited to "views,
argument, or opinion."
27
That predictions of interminable delay in bargaining, and similar forebodings of fu-
tility and hints of dire consequences in connection therewith, in the event of unionization,
may be coercive, see, e.g., Daniel Construction Company, Inc., 145 NLRB 1397. "[T]he
desire of employees to unionize is directly proportional to the advantages thought to be
obtained from such action." The Radio Officers' Union of the Commercial Telegraphers
Union, AFL (A. II. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 46. "There is
no more effective way to dissuade employees from voting for a collective-bargaining repre-
sentative than to tell them that their votes for such a representative will avail them
nothing." The Tranc Company (Clarksville Manufacturing Division), 137 NLRB 1506,
1510. Cf. N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 981 (C.A. 3) ; N.L.R.B. v.
Gate City Cotton Mills, 167 F. 2d 647, 648-649 (C.A. 5).
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1041
Definitive or absolute demonstration that statements in a given context were ac-
tually coercive is unessential to establish violation of Section 8(a) (1) of the Act. It
is sufficient "even though the statements may not be directly coercive, if they could
be reasonably so; construed by the employee," 28 or even if "the words used .. .
in vacuo, may 'have been innocent, in the context . in which the words were
spoken they can reasonably be regarded as ominous." 29 It is entirely clear in the
frame of reference of the total situation here presented, that the essential thrust of
Tate's election eve speech, on top of the events which preceded it, was a strong warn-
ing of drastic economic detriments in case of a favorable union vote the next day,
with the implied if not direct threat that unionization would bring the employees
nothing but harm. Although, in the texture of the total situation, it would seem
naive to view Tate's statements as mere abstract ivory-tower "opinions" on his part,
not really pointed at the prevailing situation or designed to have telling effect on his
particular audience, "Even though such statements may be expressive of opinion only,
if their reasonable tendency is coercive in effect, they are violative of Section 8
(a)(l) . 11 30
Treating and weighing it in the totality of the actual situation involved, I find and
conclude that, for the reasons described, Tate's May 23 speech fell outside of the
protection of Section 8(c) and constituted further violation of Section 8(a)(1) of
the Act.
C. The discharge of Jensen
Theodore Jensen went to work for Respondent in December 1960. Because he.
was attending college, he worked on the night shift as a shipping clerk or "ware-
houseman." His work performance is in no way questioned.
A few days before the election of May 24, according to his testimony, during a
conversation with Plant Manager Johnson, Jensen reminded Johnson that he was
graduating from college in June and was looking for a better job. Johnson told
him to "make sure to give him [Johnson]. notice before I [Jensen] left the company,
and I told him I would give him at least two weeks' notice, and he said that was
good." Johnson also undertook to find out if there was a suitable opening for
Jensen at Respondent's parent company, Carpenter Paper, "because he [Johnson]
said I [Jensen] had been a good employee and had been there a long time."
On May 24, Jensen, to the knowledge of Johnson and other officials of Respondent,
served as the only union observer at the election: .
On Friday, May 31, Johnson told Jensen there were no openings appropriate for
him at Carpenter Paper.. ; Jensen replied that he was accepting a job with the Social.
Security Administration in Baltimore on July 1, and, since he needed the money and
Respondent needed his services, he would continue to work to the last week in June.
Johnson agreed and asked Jensen if he needed any time off to get ready. Jensen
replied that he would take his vacation the following week and. that would suffice,
to which Johnson assented. Accordingly, Jensen did not work the following week,
i.e. Monday, June 3, through Friday, June 7..On the last day of that week, Friday,
June 7, Jensen received a special delivery letter from Respondent, signed by Office
Manager Pinkerton dated June 7 (Friday), notifying him that it had been decided
to terminate his services as of June 2 (the preceding Sunday) and that since, in Re-
spondent's view, he was not entitled to any vacation he would not be paid for that
week (June 3 to 7); and, furthermore, that-although in terms of his longevity he was
entitled to 2 weeks' vacation-since he had taken off I of those 2 weeks in April,
prior to his employment anniversary date, he would also not be paid for the last
week he had worked in May (May 27 to 31) before he went on "vacation" (and for
which he had not as yet been paid). Upon receipt of this letter, Jensen went to the
plant and expostulated with Pinkerton, asking him why he was being laid off, why
notification had been withheld until Friday, June 7, and why he was being laid off
retroactively as of Sunday, June •2. The only explanation offered by Pinkerton was
that "business was slow" and that Jensen had intended to leave at the end of June
28N.L.R.B. v. Electric Steam Radiator Corp., 321 F. 2d 733, 736 (C.A. 6). See also
N.L.R.B. v. Wilbur H. Ford, d/b/a Ford Brothers, 170 F. 2d 735, 738 (C.A. 6). Coercive
statements, implied as well. as express, carry "the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the inference. that the source of benefits now con-
ferred is also the source from which future benefits must flow and which may dry up if
it is not obliged." N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409.
Local 901, International Brotherhood of Teamsters, Chauffeurs, Warehousemen d
Helpers of America (El Impartial, Inc.) v. Compton, Reg. Dir., 291 F. 2d 793, 797 (C.A. 1).
30N.L.R.B. v. E. S. Kingsford, d/b/a Kingsford Motor Car Co., 313 F. 2d 826 (C.A. 6).
756-236-65-vol. 147-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyway. When Jensen pointed out that Plant Manager Johnson had agreed on
Friday, May 31, the day before Jensen went on vacation, that Jensen could work
through June, Pinkerton indicated he was aware of this, but that since "business was
slacking off" and the shipping department was overstaffed, it was preferable to lay
him off since he was going to leave soon anyway. Thereafter, when Jensen visited
his superior, Warehouse Supervisor Osborn, to say goodby, and told Osborn about
the discharge letter and that he had been informed he was being laid off because the
shipping department was overstaffed, Osborn "laughed at that, that the shipping
department was overstaffed, and said something to the effect that if they didn't stop
pulling this sort of thing, he was going to stop breaking his neck, or something to
that effect."
While confirming much of the conversation with him as narrated by Jensen,
Johnson denied any discussion regarding a termination date, vacation, or remaining
out awhile before leaving. He stated that it was he who had directed Office Manager
Pinkerton to terminate Jensen in the way it was done. Pinkerton corroborated this,
and also testified that when Jensen complained to him about the circumstances of
his termination, "I [Pinkerton] agreed with him he [Jensen] had been a good em-
ployee with us," and that after Pinkerton's "explanations" to Jensen the latter re-
marked, "I think I am getting shafted." Pinkerton further testified that he did not
notify Jensen prior to June 7 of his discharge which was by its terms retroactively
effective as of June 2 because it was not decided upon until June 6; and, further, that
in his entire service with Respondent he could not recall a single other instance
"in which an employee was terminated with a retroactive termination date."
I do not have the slightest hesitation in crediting Jensen's version of the circum-
stances surrounding his discharge as testified to by him and detailed above. I was
extremely favorably impressed with Jensen's demeanor, testimonial behavior, memory,
consistency, straightforwardness, and honesty.
According to Respondent, Jensen was discharged, at the time and under the circum-
stances and in the way he was, because business was slow. I reject this explanation
for the following reasons: (1) No showing was made of any significant change in
Respondent's operations between the date of Johnson's conversation with Jensen on
May 31 and the date of Jensen's discharge, such as to justify his discharge because
business had become slow; (2) Jensen was in fact immediately replaced by another
employee, Vasiliauskas, who was transferred.to Jensen's job on the night shift from
his (Vasiliauskas') job on the day shift, Vasiliauskas' job on the day shift being in
turn filled by another employee or employees who were hired for that purpose (after
about 3 weeks Vasiliauskas, who had been told that his assignment to the night shift
would be only temporary, was transferred back to the day shift, and somebody then
took Vasiliauskas' place (i.e., what had been Jensen's place) on the night shift); 31
ss Shipping clerk Vasiliauskas testified that on the Monday following Jensen 's termina-
tion, Thornburg told Vasiliauskas that he "would have to work the night shift" because
"Ted [Jensen ] was not working night shifts any more" and "because we were getting too
far behind . . . . He said I would work two or three weeks until he got another boy to
take my place . . . . " Vasiliauskas further testified that during these 3 weeks, commenc-
ing around June 11, a new employee (Bob Lind) was brought in on the day shift to take
Vasiliauskas' place because "we were short-handed during the daytime when I went on
nights, so they got him to help out during the daytime taking my place . . ; and that
after Jensen was terminated "they hired a new boy, another Bob" (i.e., Bob Handysides).
After 3 weeks on the night shift in Jensen's place, Vasiliauskas "went to see Don Brown
[plant superintendent] and I told him that Pat [Thornburg] said I would work two or
three weeks and then I could get back on days, so they got another boy to take my place
at night." There was testimony by Respondent witnesses Brown and Johnson appearing
to indicate that one of the other employees who was hired or utilized contractually with-
out being placed on Respondent's payroll (i.e., not Bob Lind, but Bob Handysides) may
have been utilized on a roving assignment basis as a filler where needed ; but there is no
doubt that he was hired or utilized in the shipping department. Plant Superintendent
Brown corroborated Vasiliauskas' testimony that Vasiliauskas took over Jensen's job on
the night shift, that Bob Lind took over Vasiliauskas ' job on the day shift, and that at
Vasiliauskas' request Brown transferred Vasiliauskas back to his former day-shift job
after he had been in Jensen's night-shift job for about 3 weeks. According to Office
Manager Pinkerton, another shipping department employee (Vernon Johnson) replaced
Vasiliauskas on the night shift when Vasiliauskas was transferred back to his former day-
shift job. Plant Manager Johnson testified, with regard to replacing Jensen with
Vasiliauskas on the night shift, "I am sure he [Thornburg] wouldn't have put him
[Vasiliauskas] on nights if he didn't need him." Although Office Manager Pinkerton testi-
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1043
(3) Respondent did not satisfactorily establish a real decline in business, nor that
even if one did occur it affected shipping operations in June; indeed, its attempted but
equivocal arithmetical demonstrations 32 could support a contrary conclusion-for
example, asserted decline in "backlog," equating to large deliveries of goods to cus-
tomers, could mean increased shipping activity; (4) Respondent did not demonstrate
necessity, reason, or basis for the elimination of one shipping clerk, in its substantial
operations, at the particular time involved; (5) Jensen's discharge was in violation of
Johnson's agreement with him that he remain until the end of June, upon the basis
of which Jensen took the following week off; (6) I cannot believe that Jensen, ad-
mittedly an exemplary, responsible employee, would suddenly absent himself without
leave for a week (i.e., the week after his conversation of May 31 with Johnson)
under the circumstances described; nor that, if he had, Respondent's termination letter
would not have so stated and utilized that as a basis for the discharge; and (7) there
is no satisfactory explanation for any necessity for the retroactive discharge of an
employee for the first time in Respondent's history.
Since no credible explanation was established or offered by Respondent for Jensen's
discharge, the only reasonable conclusion under the circumstances is that he was dis-
charged for union activity.
I accordingly find Jensen to have been discriminatorily discharged for union activity
(viz, by reason of his having served as union observer at the May 24 election),33
in violation of Section 8(a)(3) of the Act. Although I shall recommend that he be
made whole for his loss of earnings by reason thereof,34 in view of the fact that he
voluntarily secured another job on or about July 1 (which he had notified Respondent
prior to his discharge that he was going to take), I shall not recommend his rein-
statement to Respondent's employ.
IV. REPORT ON OBJECTIONS TO ELECTION
As noted at the outset of this decision, on June 28 the Regional Director for the
Seventeenth Region issued his report recommending that the Board set aside the elec-
tion of May 24 and that a new election be held because of Tate's speech of May 23,
delivered 25 hours before the election. The Regional Director found that speech
to have been made up of "thinly disguised threats that bargaining in good faith could
not be expected and clearly convey[ing] to the employees the idea that it would be
fled that following Jensen's discharge another shipping department employee quit on
June 4, creating a deficit in the man -hours available for shipping work , accounting for
the replacement or replacements hired, it is apparent that such a reduction or deficit in
the shipping department man-hours available was at least In part due to Jensen 's termina-
tion ; and, furthermore , that the quitting of another shipping department employee on
June 4 militates against Respondent 's alleged justification for discharging Jensen on the
ground that it was overstaffed in the shipping department , since, although the other ship-
ping department employee quit on June 4, it was not before but after June 4 that Jensen
was discharged . ( It will be recalled that although Jensen's termination was allegedly
"effective" as of June 2, actually the termination letter is dated and was mailed on
June 7, after the other shipping department employee , Farris, had already quit.)
32 Such figures and post facto analyses usually cannot be taken at face value , since they
are self-serving , equivocal , and conclusionary . W ithout extensively particularized factual
breakdown and precise explanations they tell little, since ordinarily they are a com-
pendium of conclusions based in part on elastic factors ( such as "inventory levels,"
"obsolescence," etc.) which are fully within the labeling control of the proponent of the
figures , who is their author and administrator and a party In interest . Furthermore, they
are not infrequently rationalizations of decisions reached for other reasons . Cf. N.L.R.B.
v. Savoy Laundry, Inc., 327 F. 2d 370 ( C.A. 2) ; The Triple AAA Water Co., 142
NLRB 803.
33 Cf. Baker Hotel o f Dallas, Inc., 138 NLRB 1123, 1124 ; Tidelands Marine Services,
Inc., 144 NLRB 176.
34 The testimony of F. Donald Minikus, personnel manager of Respondent 's parent,
Carpenter Paper, and as such responsible for personnel practices of Respondent , appeared
to indicate gross inconsistencies and inequities in application of Respondent 's unpublished
and unpublicized vacation policy, if it can be said to be a policy , so as to justify at least
lack of clear understanding on the part of employees , including Jensen , as to just what It
was and how it was being administered . Under these circumstances , It cannot be said
that-even aside from Johnson's possible authorization to and agreement with Jensen
with regard to a week off in June with pay-Jensen was unjustified in regarding himself
as entitled to another week's vacation at the time he took it. However , since this does
not go to the question of the propriety of Jensen 's discharge , but rather to the amount of
money due him in order to make him whole by reason of the discharge , this is a matter for
determination in a compliance proceeding.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
futile to select the Petitioner [Union] as their representative for purposes of col-
lective bargaining . The character . of the speech and its timing . . . render the
speech objectionable , as it tended to and did interfere with the employees ' freedom of
choice." On July 8, the Employer filed timely exceptions to the Regional Director's
report and recommendations . The issues resulting from the Union's objections to
the election, the Regional Director's report thereon, and the Employer's exceptions
to said report, are before me for report to the Board pursuant to the Board's amended
order of August 16, 1963.
As is apparent from the foregoing portions of this decision and the findings
dealing with the unfair labor practice aspects of this case, the proof adduced at the
hearing before me fully supports and corroborates the correctness of the views, con-
clusions, and recommendations of the Regional Director with regard to the Tate
speech.35 In connection with the propriety of the Regional Director's recommen-
dation that the May 24 election be set aside because of the Tate May 23 speech,
it is additionally to be observed that the language of Section 8(c) of the Act-
strongly relied upon by Respondent-is confined to unfair labor practice cases, and
that it does not extend to representation election matters.36 Further, the election-
eve electioneering stricture, sometimes referred to as the "Peerless Plywood" 37 rule,
under which a preelection speech may not be made to assembled employees on
employer time within 24 hours of the, opening of the polls in a Board-conducted
election, under penalty of having the election set aside, does not mean that an
election cannot be voided upon the basis of a preelection speech made more than
24 hours before the election. Peerless Plywood did not legalize 25th-hour preelection
speechmaking. Although under Peerless Plywood an election occurring within 24
hours of a preelection address will be set aside without further ado, an election may
also be set aside based upon an improper speech-depending on the nature of the
speech and the surrounding circumstances-without regard to its timing. The
standard of propriety of preelection conduct has been described to be "whether
the conduct was such as to tend to interfere with the exercise of a free choice of
bargaining representative." 38 In determining whether preelection conduct meets
this standard, the lapse of time preceding the election-for example, 25 hours as
contrasted to 25 days-may be a relevant circumstance 39 Weighing the total situa-
tion as an integrated whole, as explicated and found above, I find that the Tate
speech as well as other conduct of Respondent between the date of the union rep-
resentation petition and the date of the election 40 created an atmosphere of threats,
futility, and fears of reprisal which interfered with the employees' exercise of a free
choice of bargaining representative 4142
35 That election -related conduct violative of Section 8(a) (1), as herein , may be said
necessarily to interfere with free and untrammeled Board-conducted elections, see: Indus-
trial Steel Products Company, Inc., 143 NLRB 336; Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-1787.
36 Dal-Tex Optical Company, Inc., supra, footnote 35. Cf. Ideal Baking Company of
Tennessee, Inc., 143 NLRB 546; The Lord'Baltimore Press, 142 NLRB '328; The Trane
Company (Clarksville Manufacturing Division), 137 NLRB 1506.
37 Peerless Plywood Company, 107 NLRB 427.
38 Glass -Tite Industries , Inc., 133 NLRB 1287, 1299 . No proof is required that em-
ployees were actually misled. Id.
39 Cf. Storkline Corporation v. N.L.R.B., 298 F. 2d 276, 277 (C.A. 5) ; N.L.R.B. v.
Shirli.ngton Supermarket, Inc., et al., 224 F. 2d 649, 651-653 (C.A. 4), cert. denied 350
U.S. 914; Blades Manufacturing Corporation, 144 NLRB 561 ; Steel Equipment Company,
140 NLRB 1158, 1159; Walgreen Co., 140 NLRB 1141, 1143; Hollywood Ceramics Com-
pany, Inc., 140 NLRB 221, 222-223; Sewell Manufacturing Company, 138 NLRB 66;
The Tranc Company ( Clarksville Manufacturing Division ), 137 NLRB 1506, 1509.
10 That this is the critical period for consideration , see: The Ideal Electric and Manu-
factio-ing Company, 134 NLRB 1275, 1278; Goodyear Tire and Rubber Company, 138
NLRB 453, 454-455.
41 Cf. N.L.R.B. v. Clearfield Cheese Co., Inc., 322 F. 2d 89 (C.A. 3) ; N.L.R.B. v. Trancoa
Chemical Corp., 303 F. 2d 456, 462 (C.A. 1) ; N.L.R.B. v. Houston Chronicle Publishing
Co., 300 F. 2d 273, 278-280 (C.A. 5) ; Celanese Corporation of America v. N.L.R.B., 291
F. 2d 224, 226 (C.A. 7), cert. denied 368 U.S. 925; N.L.R.B. v. Shirlington Supermarket,
Inc., et al., 224 F. 2d 649 (C.A. 4), cert. denied 350 U.S. 914; The Lord Baltimore Press,
142 NLRB 328; Oak Manufacturing Company, 141 NLRB 1323; Dal-Tex Optical Company,
Inc., 137 NLRB 1782; Rein Company, 111 NLRB 537, 538; General Shoe Corporation,
77 NLRB 124, 126-127.
42 In reaching the foregoing conclusion and recommendation , I need not and do not find
it necessary to consider the question of whether a new election is required for an addi
FEDERAL ENVELOPE CO., OMAHA, NEBRASKA, ETC. 1045
Accordingly, I recommend that the Union's objections, filed May 31, 1963, to
the election of May 24, 1963, be sustained; that the Regional Director's report
and recommendations, dated June 28, 1963, that the May 24 election be set aside
and a new election conducted at a time and date to be determined by the Regional
Director, be in all respects confirmed and adopted; and that the Employer's excep-
tions, filed July 8, 1963, to the Regional Director's June 2S report and recommen-
dations, be overruled and dismissed.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having found that Respondent dis-
criminatorily discharged an employee , I shall recommend that Respondent be re-
quired to make the employee whole for any loss of earnings he may have suffered
as a result of his unlawful discharge, by payment to him of a sum of money equal
to that which he normally would have earned as wages from the last day for which
he was paid prior to the purported effective date of his discharge, to the last day
preceding July 1, 1963 that said employee would have worked before reporting to
the new job which he obtained voluntarily and to which he reported on or about
July 1, 1963, less his net earnings during such period, backpay and interest to be
computed in the manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716; and that Re-
spondent be required to make available necessary records for computation of the
backpay due.
In view of the fact that the unfair labor practices committed are of a character
striking at the roots of employee rights safeguarded by the Act, I shall also recom-
mend that Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
I shall further recommend that Respondent be required to post an appropriate
notice
I am also recommending that the election held on May 24, 1963, in Case No.
17-RC-4165 be set aside and that said case be remanded to the Regional Director
for the Seventeenth Region to conduct a new election at such time as he deems cir-
cumstances permit free choice of bargaining representative.
CONCLUSION'S of LAw
1. Federal Envelope Company, Omaha, Nebraska, a division of Nationwide
Papers Incorporated, Respondent herein, is an employer engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
tional reason, the factual basis for which was supplied by Respondent itself at the hearing
through proof offered and contentions advanced and tendered by it for decision in another
connection; namely, that Respondent misused the processes of the Board by certifying to
the Board a list of employees and their jobs which Respondent knew (since it now so
indicates) included incorrect and misleading job titles such as to qualify persons who
were in reality "supervisors" to be eligible to vote in the election as rank-and-file em-
ployees. (It will be recalled that -the Union lost the election by a vote of 53 to 50.)
Since this contention was raised by Respondent itself, was fully litigated at the hearing,
and is even now actively pressed and tendered for decision by Respondent, it would appear
to be proper to rule upon it in all aspects material to the issues herein. Particularly
since there are no pleadings in representation proceedings, where issues are actually liti-
gated by the parties and tendered for decision they may properly form the basis for find-
ings and conclusions and be disposed of by the administrative decision . See: Rocky
Mountain Natural Gas Company, Inc. v. N.L.R.B., 326 F. 2d 949, footnote 3 (C.A 10) ;
N.L R.B. v. Puerto Rico Rayon Mills, Inc., 293 F. 2d 941, 947-948 (C.A. 1) ; New England
Web, Inc., et al., 135 NLRB 1019, 1023, reversed on other grounds 309 F. 2d 696 (C.A. 1) ;
Federal Rules of Civil Procedure, Rule 15 (b). "The jurisdiction of the Regional Director
in making a postelection investigation is not limited to the issues raised by the parties "
Belk's Department Store of Savvannah, Ga, Inc., 98 NLRB 280, 281, footnote 5 Further-
more, I am unable to bring myself to believe that the Board is without power, or that it
should restrain its exercise, to correct such open and confessed abuse of its processes, in
effect constituting an affront to national industrial relations policy as pronounced by
Congress in the Act. I would, therefore, if necessary, also recommend that the May 24
election be set aside and that a new election be conducted for this additional reason.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The International- Printing *Pressmen and Assistants' Union of North America,
Local 412, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. By the conduct set forth in section III which has been found to constitute
unfair labor practices, Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed to them by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
4. By its discharge of Theodore Jensen as aforementioned, and its failure and
refusal to reinstate him, because of his union sympathies and activities, Respondent
discriminated against him in regard to the hire and tenure of his employment, in
violation of Section 8(a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this consolidated proceeding, I recommend that Respond-
ent, Federal Envelope Company, Omaha, Nebraska, a division of Nationwide
Papers Incorporated, its officers, agents, successors, and assigns, shall:
1. Cease and desist-from:
(a) Interrogating any of its employees with respect to their union activities, views,
or desires, or about their voting intentions or vote in any Board-conducted election.
(b) Instructing or requesting any of its supervisors, managerial personnel, or
others to inquire and report on the union activities, views, desires, voting intentions,
or vote in any Board-conducted election, of any of its employees.
(c) Threatening, directly or indirectly, its employees with reduction of their
existing wage scales, loss of holidays, loss of vacations, loss of overtime, discon-
tinuance of interdepartmental transfers, or loss of any other existing benefits, or
any other reprisals because of their union activities.
(d) By threat of reprisal or promise of benefit (direct or indirect), inducing or
encouraging any of its employees to vote for or against any labor organization in
any Board-conducted election.
(e) Indicating to its employees that if they join a union any collective bargaining
with it will be futile or unduly protracted and ultimately of no benefit to them:
(f) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization; to form, join, or assist any labor
organization; to bargain collectively through representatives of their own choosing;
to engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection; or to refrain from any and all such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Make Theodore Jensen whole for any loss of pay, in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, vacation policy and procedure statements and
announcements, records of employees showing when vacations were taken in rela-
tion to their employment anniversary dates and the extent to which such vacations
were allowed and compensated, and all other records necessary to analyze the amount
of backpay due under the terms of this Decision.
(c) Post at its plant in Omaha, Nebraska, copies of the attached notice marked
"Appendix." 43 Copies of said notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by Respondent's authorized
representative, be posted by Respondent immediately upon receipt thereof, and he
maintained by it for 60 consecutive days thereafter, in conspicuous places, including`
' In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be 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."
FEDERAL ENVELOPE CO ., OMAHA, NEBRASKA, ETC. 1047
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered , defaced,
or covered by any other material.
(d) Notify said Regional Director , in writing , within 20 days from receipt of this
Decision and Recommended Order, what steps have been taker. to comply
therewith 44
I further recommend that the election held on May 24, 1963, in Case No. 17-
RC-4165 be set aside and that said case be remanded to the Regional Director
for the Seventeenth Region to conduct a new election at such time as he deems that
circumstances permit free choice of bargaining representative.45
44 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
45 In the event Respondent refuses or fails to comply with the terms of the Order in Case
No. 17-CA-2204, I recommend that said Regional Director should also be authorized to
conduct the new election herein recommended, upon written request of the Union. See
Ideal Bak-mg Company of Tennessee, Inc., 143 NLRB 546, footnote 9.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify you that:
WE WILL NOT interrogate our employees with respect to their union activities
or sympathies.
WE WILL NOT interrogate our employees as to how they intend to vote or as
to how they voted in any National Labor Relations Board balloting or election.
WE WILL NOT instruct our supervisors or other persons to find out and report
to us what the union views or sympathies of our employees are.
WE WILL NOT threaten our employees with reduction of their pay or wage
rate, or with loss of any holidays, or with loss of any vacations, or with loss of
overtime , or with discontinuance of interdepartmental transfers , or with loss of
any other existing benefit, or any other reprisals, if they join a union or engage
in collective bargaining.
WE WILL NOT make or carry out any threat or reprisal, or promise any bene-
fit, to encourage any of our employees to refrain from joining a union or en-
gaging in collective bargaining.
WE WILL NOT indicate to our employees that if they join a union any collective
bargaining will do them no good or that it will be extremely long drawn-out
with no ultimate benefit to them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed to them by Congress in Section 7
of the Labor Management Relations Act.
WE WILL NOT in any manner interfere with the right of our employees to
make a free and untrammeled choice in any election conducted by the National
Labor Relations Board.
WE WILL take immediate steps to pay to Theodore Jensen, the union observer
at the election held on May 24, 1963, all pay which he lost as the result of our
discharge of him on July 7, effective July 2, plus interest.
All of our employees are free to become, remain, or to refrain from becoming or
remaining, members of any labor organization.
FEDERAL ENVELOPE COMPANY, OMAHA, NEBRASKA,
A DIVISION OF NATIONWIDE PAPERS INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------(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.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building , 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore
1-7000, Extension 731, if they have any question concerning this notice or com-
pliance with its provisions.