Newton Falls Paper Mill, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1963

144 N.L.R.B. 1470 (N.L.R.B. 1963)

1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or "solicit grievances" on company property and not to have "meetings" in the Re-
spondent's parking lot, and (2) by the December 14 "warning letter" to Dempsey
threatening Dempsey with immediate discharge should he again conduct a "witch
hunt."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III , above, occurring in connection
with the operations of Respondent, described in section I, above, have a close , intimate,
and substantial relation to trade , traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8 (a) (1) of the Act , I shall recommend that Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of the
Act.
The evidence in the record discloses no firm disposition by Respondent to oppose
the purposes or policies of the Act in its dealings with its warehouse employees. No
need or occasion for a so-called broad order is seen . The Recommended Order, in
addition to providing that Respondent withdraw , by letter, the threat to discharge
Dempsey if he again engages in "witch hunts ," or "solicitation" of grievances, at any
time on company property , will also provide that Respondent cease and desist from
engaging in further unlawful conduct of the types herein found and from any like
or related conduct.
On the basis of the foregoing findings of fact , and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Market Basket is, and has been at all material times , an employer within the
meaning of Section 2(2) of the Act.
2. Food , Drug & Beverage Warehousemen & Clerical Employees, Local 595,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America is, and has been at all material times, a labor organization
within the meaning of Section 2(5) of the Act.
3. By Mathews ' directions to Dempsey on December 6 not to "witch hunt" or
"solicit grievances" on company property and not to have "meetings" in the Respond-
ent's parking lot, and by Respondent 's "warning letter" of December 14 to Dempsey,
threatening Dempsey with immediate discharge should he again conduct a "witch
hunt," Respondent has engaged in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
Newton Falls Paper Mill, Inc. and Gene T. Hickey and David J.
Bellnier. Cases Nos. 3-CA-1972-1 and 3-CA-1972-2. November
1 2, 1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
144 NLRB No. 144.
NEWTON FALLS PAPER MILL, INC. 1471
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 Mem-
bers Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the
exceptions and brief,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions noted
below.
The Trial Examiner found and we agree that the Respondent vi-
olated Section 8(a) (1) and (3) by discharging Gene T. Hickey and
David J. Bellnier. Like the Trial Examiner, we are satisfied that the
reasons assigned by the Respondent for the discharge were pretexts,
and that the discharges would not have been effected but for the em-
ployees' union activities, to which the Respondent was actively op-
posed.' The Respondent's hostility to the unionization of its em-
ployees is revealed not only by various statements which the Trial
Examiner found were made by the Respondent, but also by the fol-
lowing additional facts disclosed in the record :
(1) At the meeting with the employees called by President Hynes
on April 20,1962, Hynes remarked that it was up to the men to choose
between the Union and the benefits he had already given them, and
that he would be forced to close the plant if the men chose the Union
and he could not meet its demands. Hynes further stated that "as
long as we continue to work together and live together -as a family,
we can work 44 hours indefinitely, and you will have a job as long
as you want it." He also said that he would take under consideration
various grievances raised by the men.4
(2) A few days after the meeting, Foreman Senters declared to
Union Leader Hickey and another employee, "I guess they got you
scared now." 5
1 we note that no exception was filed to the Trial Examiner 's rejection of the General
Counsel's offer of the pretrial affidavit of Foreman Claude Senters
' The Respondent 's exceptions to the Intermediate Report and its supporting brief are in
part directed to the credibility aesolutions of the Trial Examiner . We will not overrule
a Trial Examiner's resolutions as to credibility unless a clear preponderance of all relevant
evidence convinces us that they are incorrect. Upon the entire record, such a conclusion
is not warranted here. Standard Dry Wall Products, 91 NLRB 544, eafd. 188 F. 2d
362 (CA 3)
3 According to the uncontradicted testimony of Bellnier , these activities , which com-
menced late in 1961 prior to the 10 ( b) period , continued until the date of Hickey's dis-
charge in July 1962
A The uncontradicted testimony of Bellnier and Hickey, both of whom were specifically
credited by the Trial Examiner President Hynes did not testify
6 The uncontradicted testimony of Hickey and employee Ivan Bullock Foreman Senters,
did not testify with respect to this conversation.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) A week or so after the meeting, Mill Manager Black called
employee Raymond Provost aside and asked him whether he thought
the men were going to organize. When Provost said he didn't know,
Black asked him what he would do if he lost his job. Provost said
he would probably find another job. Black then asked what he would
do if his boys (Provost's three sons also worked in the mill) lost their
jobs.'
(4) A month or so after the meeting, President Hynes adjusted
certain work-schedule grievances which had given rise to the em-
ployees' organizational activity?
As the Trial Examiner found, Mill Manager Black prior to the
meeting of April 20, 1962, had requested the employees to withhold
taking any action with respect to organizing until Hynes returned from
Florida. From this, the employees could reasonably infer that if they
would wait until Hynes returned, Hynes would consider their griev-
ances and eliminate any need for them to organize. Hyne's agreement
at the meeting of April 20 to take under consideration various griev-
ances raised by the men served to confirm that inference. And his later
adjustment of these grievances, we further find in this context, con-
stituted the grant of a benefit having the deliberate purpose of stem-
ming the tide of union organization. Hynes' declaration to the em-
ployees, also at the meeting of April 20, that their choice lay between
benefits he had already given them and the Union, was reasonably
calculated to impress upon employees that they would incur the loss
of existing benefits if they chose the Union. His further statement
that the employees would be assured of a job and of 44 hours' work as
long as they continued to "work together and live together as a fam-
ily," coupled with his contrasting remark about the possibility of clos-
ing the plant us 'a consequence of union demands, was also reasonably
calculated to implant in employees a fear of reprisal if they were
to bring in the Union and thus show that they no longer were willing
to "work together as'a family ." That such was 'the Respondent's actual
intent need not rest upon inference alone, for it is borne out by
Senter's subsequent comments to Hickey-adverted to above-about
the Respondent having scared the employees. Mill Manager Black's
questioning of Provost also contained, we find, a thinly veiled threat
that if the men organized, some might lose their jobs.
Section 10 (b) prohibits the issuance of a complaint based upon
an unfair labor practice occurring more than 6 months prior to the
filing of the charge, and accordingly we do not find that the state-
ments by Black and Hynes constituted violations of Section 8(a) (1).
However, we find no merit in the Respondent's argument that'Section
9 The uncontradicted testimony of Provost . Black did not testify with respect to this
conversation.
7 See footnote 4, supra
NEWTON FALLS PAPER MILL, INC. 1473
10(b) bars all use of these statements as evidence. The discharges
occurred within the 10(b,) period, and as the earlier statements shed
light on the Respondent's motivation for the discharges, they are both
relevant and admissible in evidence. See Local Lodge No. 1424 Inter-
national Association of Machinists, AFL-CIO (Bryan Manufactur-
ing Co.) v. N.L.R.B., 362 U.S. 411$
ORDER
The Board adopts the Recommended Order of the Trial Examiner.'
MEMBER LEEDOM, dissenting :
All of the events, upon which the Trial Examiner and my colleagues
rely to support their conclusions that the Respondent was opposed to
the unionization of its employees and hence discriminatorily motivated
in the discharge of Hickey and Bellnier, occurred more than 6 months
before the filing and service of the charges initiating these proceed-
ings. In these circumstances, I believe that the 6-month proviso to
Section 10 (b) of the Act compels dismissal of the complaint.lo
S See also D. L Bradley Plumbing Company, 131 NLRB 943, enfd. 298 F. 2d 427
(C A. 7) ; Leece-Neville Company, 140 NLRB 56; Florida All-Bound Box Company,
138 NLRB 150.
9 The Recommended order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, its officers, agents, successors, and assigns, shall:
io See the dissenting opinion in Paramount Cap Manufacturing Company, 119 NLRB
785, 788
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on November 6, 1962, by Gene T. Hickey and David J. Bellnier,
the Regional Director for the Third Region of the National Labor Relations Board,
herein called the Board, issued a complaint on February 28, 1963, against Newton
Falls Paper Mill, Inc., Respondent herein, alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act. In its duly filed answer Respondent, while admitting certain
allegations of the complaint, denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
in Watertown, New York, on April 10 and 11, 1963. All parties were represented
and afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs with me. Briefs were filed by the parties on May 10,
1963.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of each of the witnesses appearing before me,' I
make the following:
i Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon has de-
meanor as I observed it at the time the testimony was given Cf. Retail Clerks Inter-
national Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680,
1682, and footnote 3; Bryan Brothers Packing Company, 129 NLRB 255. To the extent
that I indicate that I do not rely upon or reject in part or entirely the testimony of any
given witness, it is my intent thereby to indicate that such part or whole of the testi-
mony, as the case may be, is discredited by me Jackson Maintenance Corporation, 126
NLRB 115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2).
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Newton Falls Paper Mill, Inc., the Respondent herein, is a New York corporation
with its plant and principal office and place of business located at Newton Falls,
New York, where it is engaged in the manufacture, sale, and distribution of paper
-products. In the course and conduct of these operations Respondent annually pro-
duces products valued in excess of $50,000, of which products in excess of $50,000
were shipped from said plant directly to States of the United States other than the
State of New York. During the same annual period Respondent purchased and
caused to be delivered to its Newton Falls plant wood pulp and other goods and
materials valued in excess of $50,000. Of the foregoing so purchased wood pulp,
goods, and materials valued in excess of $50,000 was transported to said plant directly
from States other than the `State of New York.
It is conceded by the pleadings and I accordingly find and conclude that Respond-
ent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , AFL-CIO, is conceded to be a labor
organization within the meaning of the Act and I so find and conclude.
III. THE ISSUE
The substantiality of evidence supporting the allegations that two employees were
discharged for union activities and that the claimed reasons were pretexts.
IV. THE UNFAIR LABOR PRACTICES
A. The organizing activities of the employees
Beginning in late 1961 a number of employees in Respondent's maintenance depart-
ment, with employee Gene T. Hickey as their spokesman, met with members of
management to discuss various matters pertaining to rates, hours, and overtime.
Their first expression of serious interest in a labor organization, however, occurred
in the winter of 1962. Under the active leadership of employees Hickey and David J.
Bellnier, the latter having sought the assistance of the Union's representative, Richard
Piche, application cards were distributed among the employees and many membership
signatures were thus procured.
Thereafter on March 6, 1963, a meeting of the maintenance employees was
arranged by employee Bellnier. This meeting took place at the Twin Lakes Hotel
in nearby Star Lake, New York, and was attended by approximately 40 employees,
all but three or four being from-the maintenance department. The meeting was ad-
dressed by Piche of the Union, and both Hickey and Bellnier were active in matters
of introductions and the passing out of union cards to those who had not yet joined.
No one representing management attended this meeting. It had, however, been pre-
viously publicized by an announcement on a bulletin board at the plant and employee
Hickey had announced it individually to the employees on the job. Assistant Plant
Engineer John MacAleese testified to an awareness of this meeting, and a brother-
in-law of Supervisor Karl T. Ehlers was known to have been in the group attending
That Respondent was aware of its employees' union interest is further evidenced
by the fact that Mill Manager Gordon Black had spoken to the employees a week
or two before the union meeting and had told them that although he was quite
aware of their problems "he wished we would extend the courtesy to [President]
Hynes to wait until he came back from his vacation before we had any meeting or
took any action on these problems." 2
Upon his return from Florida, President Hynes called a meeting of the main-
tenance employees on April 20, 1962. Shortly before this meeting Assistant Plant
Manager MacAleese had told Bellnier that he thought it would be foolish for the
men to organize.3 Thereafter, at the meeting President Hynes elaborated on the
favors he had done for the men and told them that they did not have to sneak off
2 The credited , undenied testimony of employee Hickey On cross-examination of Black
I sustained an objection by Respondent's counsel to a question as to this meeting because
the question was beyond the scope of the direct examination . Furthermore, I do not
rely upon Black's testimony for reasons I shall set forth in more detail hereafter.
11 do not credit MacAleese's version of this statement to the effect that he stated it
would be foolish to organize one department
NEWTON FALLS PAPER MILL, INC. 1475
to have union meetings , for he would provide them with a hall. He went on to
discuss wages and classifications with them and the possibility of making changes
in working conditions particularly as it applied to Sunday work.4
B. The discharge of David J. Bellnier
David J. Bellnier, a piper in the maintenance department and previously identified
as one of the two employees responsible for the organization of the maintenance
employees, was at work on Sunday, September 2, assigned to standby duties as a
representative of the maintenance division. He was charged with the responsibility
of proper maintenance of the plant equipment, facilities, and machinery when the
plant was otherwise on a reduced weekend schedule.
As work was slack and Bellnier had no specific assignments to then perform
which had not already been covered, he availed himself of the opportunity to con-
struct for himself a "barrel rack," this being a cubicle framework of pipe, several
feet high and wide, used to support a barrel or tank, usually for residential fuel oil
or water storage.
To make his rack Bellnier used pieces of scrap pipe lying about the floor of the
pipe shop, making certain that the pipe he used was not stored on the pipe storage
rack or marked for some future use. In constructing this rack Bellnier also availed
himself of used elbows which were lying on a nearby bench and which could ad-
mittedly be reused. He also used the company welding machine for making neces-
sary pipe joints. Although welding was not among Bellnier's assigned duties and a
welding machine was not part of his working equipment he was familiar with its
use, had done some welding on the job in the past, holding a certificate from a welding
training school.
As Bellnier was putting the finishing touches to his handiwork Mill Manager
Black came upon him and inquired what he was doing. Bellnier explained to him
that he was making a barrel rack out of scrap pipe from the pipe shop. Black left
and returned 5 minutes later and accused Bellnier of taking unfair advantage of
the Company by using the welding machine, which he might burn up, and by using
new pipe. After Bellnier again explained to Black that he was using scrap pipe he
was ordered to punch out and not to return until he had reported to Assistant Plant
Engineer MacAleese. Shortly thereafter , as Bellnier was leaving, Black remon-
strated with him for "stealing pipe."
Before leaving the plant on that day Bellnier visited with MacAleese and told him
his troubles. MacAleese agreed to look into the matter over the Labor Day holiday
and to see Bellnier on the following Tuesday. When Bellnier saw him on that day,
September 4, MacAleese told him he had seen Black and that Black did not want
him to work. Whereupon MacAleese gave Bellnier his discharge slip upon which
it was stated as the reason therefor, according to MacAleese, "Services no longer
required." Black, however, in testifying concerning the discharge assumed full
responsibility and stated that Bellnier was discharged for performing personal work
on company time with new materials without permission.
C. The discharge of Gene T. Hickey
Gene T Hickey, a millwright in Respondent's employ since April 1957, was dis-
charged on July 9, 1962, by Assistant Plant Engineer MacAleese for having failed
to call in to report a Saturday morning absence caused by a mechanical failure
of his automobile when he was preparing to go to work.
Hickey was scheduled to do some work on Saturday, May 26, under MacAleese's
direction. When he failed to appear MacAleese called him at his home and asked
to see him in the afternoon. MacAleese at that time asked for and received Hickey's
excuse for his nonappearance and then asked him why he did not call in, to which
Hickey replied that he was not aware that this was required. Whereupon MacAleese
informed Hickey that he would have to ask him to look for another job, giving him
3 or 4 weeks to do so. When Hickey was unsuccessful in his efforts during this
period to find other work he asked for another couple of weeks to look and
suggested that he might be transferred to some other department in the plant. This
suggestion was rejected. Upon the expiration of the additional grace period, on
July 9, MacAleese, although conceding at the hearing that Hickey was then "working
up to par," that is to say, he was giving "a fair day's work for a fair day's pay," dis-
* The foregoing account of the Union's organization and related events is a synthesis of
the credited testimony of employees Bellnier and Hickey.
727-083-64-vol. 144-94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged Hickey, stating on his discharge slip, as had been stated on Bellnier's,
"Services no longer required."
D. Analysis and conclusions
1. As to Employee Bellnier
It is Respondent's vigorous contention that Bellnier was discharged because he
used good materials and company equipment for personal use on company time
without permission. The General Counsel, on the other hand, contends that this
reason was but a pretext for the real reason, namely, Bellnier's union activity. For
the reasons which follow I am persuaded to General Counsel's viewpoint.
Bellnier was the leading light of the organizing movement. He made the first
contacts with the Union, passed out the cards, arranged for the meeting, introduced
the speakers, and thereafter continued, on company time, to whip up enthusiasm.
The Respondent was admittedly aware of the meeting and the attendant activities. A
notice was posted on the bulletin board, President Hynes gave a speech about it,
Assistant Plant Manager MacAleese testified he knew of it, Supervisor Karl Ehlers
testified that he witnessed the needling of Bellnier by other employees on the sub-
ject of his union activities, and Ehler's brother-in-law attended the meeting referred
to above.5 Quite apart, therefore, from the fact that Newton Falls has a population
of only 700, and all of Respondent's maintenance employees total less than 40, I
have no hesitancy in inferring upon the basis of all of the circumstances herein,
including Bellnier's prominence in an earlier employee meeting (supra), that
Respondent was quite as aware of Bellnier's conspicuous union activity as were any of
his fellow employees.
With this condition established, the reasons advanced for the discharge bear further
scrutiny. Bellnier and other employees 8 credibly testified to a time-honored prac-
tice among the employees of making various odds and ends of personal necessity with
company equipment out of scrap materials. Thus it appears that each spring
practically everyone in the shop fashions for himself a boat anchor; that Bellnier had
previously built a set of metal steps and a platform for his house trailer with the
knowledge of MacAleese and other supervisors; and, indeed, MacAleese testified,
contrary to the testimony of other company officials to be sure, that "there are several
employees who have lunch in the mill, and they like to make clothes poles or one
thing or another, and if we have scrap pipe available, they would be allowed to use
this during their noon hour." 'i
Mindful of the prerogatives and perquisites attached to rank, there is an abundance
of undenied, credible testimony (Bellnier's) that supervisors and officials participated
in this largesse at various times. Thus Master Mechanic Owens had built himself
a go-cart, Foreman Senters 8 had built a plow for his Jeep several years previously,
Supervisor Nolan a bumper for his Jeep. Similarly, Company President Hynes,
Plant Engineer Smith, and Personnel Manager Kozoil all had work done in their
homes by company employees and with materials taken out of company stock, it
nonetheless being subject to some form of accounting but certainly under circum-
stances broadly suggesting that they got the "trade discount."
The nature of the materials used by Bellnier was claimed to be of particular
significance to Respondent's decision to discharge. Thus the evil appears to have
been the use of new pipe, and had Bellnier used scrap pipe things might not have
gone so badly with him. On this point the record becomes a mass of confusion as
to what is new pipe, used pipe, and scrap pipe. Respondent appears to be contend-
ing that only used pipe can be scrap pipe-and that a piece of new pie, even a bent
5 The credited testimony of Bellnier and Ehlers and also admissions contained in the
testimony of Plant Manager MacAleese
O Clifford Coffey, Ivan Bullock, and Raymond Provost.
'I do not credit MacAleese generally and rely upon his testimony only when it is
corroborated by the testimony of credible witnesses or constitutes an admission contrary
to the Respondent's Interest Accordingly I reject his testimony to the effect that the
admitted use of materials and equipment was only permitted after hours
8 ,Claude Senters, working foreman and assistant master mechanic, assigns work to em-
ployees in his department and checks the quality of it and grants their requests for time
off Employees Hickey and Bellnier so testified Assistant Plant Manager MacAleese
also testified that he had discussed with Senters the subject of warning Hickey about his
work and that, according to MacAleese, Senters gave such a warning And Senters, him-
self, conceded that unlike the rank-and-file employees he was paid on a salaried rather
than an hourly basis Upon the foregoing I conclude and find Senters to be a supervisor
within the meaning of the Act
NEWTON FALLS PAPER MILL, INC. 1477
piece, is not scrap because it can be cut down and used again. Indeed at one point in
Mill Manager Black's testimony a straight piece of any kind of pipe was deemed
never to be scrap .9 This much is clear, and I so find and conclude : Bellnier was
using short pieces of discarded pipe without reference to its being new or used.
It was for Assistant Plant Engineer MacAleese to supply the key to the so-called
pipe problem . Thus he testified , as quoted above, that employees were permitted to
fashion themselves clothes poles out of scrap pipe . In the area of human knowledge
dealing with the nature and construction of clothes poles it would not exaggerate to
state that they are made from straight pipe. If then, according to MacAleese,
employees are permitted to use straight pipe for such purposes ( and it is hard to
visualize a clothes pole constructed of any other form of ,pipe ), then by that very
fact alone Respondent 's basis for discharging Bellnier falls . He was discharged, it
seems, for doing what MasAleese states he would be permitted to do.
Employee Raymond Provost 's credited statement best summarizes the whole situa-
tion, namely that in all of his 25 years as an employee he found that company policy
on the use of scrap materials to be lenient.
And finally there are the letters of recommendation given to Bellnier by his super-
visors following his discharge . Thus Foreman Curtis Fletcher characterizes him as
a good worker, willing to do any task he is given and "I would be happy to have
him back in our employ." Similarly , Supervisor Nolan could "truthfully and
cheerfully" recommended him as a thoroughly dependable and conscientious man in
regards to his ability as a piper , and would highly recommend him to anyone desiring
his services . And in the same vein Assistant Plant Engineer MacAleese and Assistant
Coating Superintendent Ehlers paid high respect to Bellnier 's abilities.10
Suffice it to say that all of the foregoing considerations make it abundantly clear
that David Bellnier was the victim of decidedly disparate treatment . Having found
that under all the circumstances his union activities were known to Respondent, and
that Respondent was not known to have been favorably disposed to the self-
organization of its employees , I find and conclude that the reason for the disparate
treatment inflicted upon Bellnier was his union activity and that the suggested reason,
contrived as the record reveals it, was but a pretext to conceal the real purpose of
Respondent's action. I accordingly find that by its conduct in this respect Respondent
discriminated against David Bellnier in violation of Section 8(a)(1) and (3) of
the Act.
2. As to Employee Gene T. Hickey
Respondent, through the testimony of its Assistant Plant Engineer MacAleese,
contends that Hickey was discharged because of his failure , 6 weeks before he was
finally terminated , to report in when absent . Throughout the testimony of Mill
Manager Black there are also repeated references to Hickey 's earlier transgressions,
none of which were shown to have been the subject of reprimand at the time they
occurred-if they did occur.ll
Hickey, like Bellnier, was most prominent in the Star Lake union meeting and
his activities there, and throughout the plant, were equally noticeable . Prior to his
employment with Respondent in 1957 he had been employed at the St. Regis Paper
Mills, and was president of the union there for the 2 years prior to his employment
with Respondent . Four months before his discharge employee Hickey had dis-
cussed this union background and his experiences with Foreman Senters.12
Foreman Senters was called as ,a rebuttal witness by General Counsel but he did
not testify in denial of this conversation . Senters, in fact, did not testify at all.
91 do not rely on Black's testimony herein except as it may constitute an admission
against Respondent 's interest or is otherwise corroborated by the testimony of credible
witnesses . I also rely on it to the extent that it manifests inherent contradictions in
Respondent 's contentions.
10 Neither Fletcher nor Nolan were called to testify. Both MacAleese and Ehlers testi-
fied but neither indicated a desire to retract anything they had stated in their recom-
mendations Plant Engineer Smith , who also provided Bellnier with a favorable rec-
ommendation , sought in the course of his testimony to qualify and hedge his earlier
recommendation . I do not rely upon Smith 's explanations nor upon the recommendation
itself.
11 Upon my observation of Black and the review of his testimony I am not disposed to
credit him . Throughout his testimony are instances of hedging and evasion that are not
indicative of reliable recollection Thus on cross-examination he repeatedly sought to
evade the questions concerning the use of new, as distinct from used , pipe , and when
asked if he had seen others use company equipment for personal use gave a series of
evasive answers before being directed to answer the specific question
12 The credited undenied testimony of employee Hickey.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel, after establishing on the record what I have found to be Senters'
supervisory status (supra footnote 8), sought to introduce in lieu of Senters' testi-
mony, a pretrial affidavit which General Counsel claimed to be admissible as an
admission by Respondent (through its supervisor) against its interest.
Assuming Senters to be a supervisor, as claimed, and found, the question remains
whether this be the legal variety of admission that may be thus inserted into the
record. The rule on this subject is clearly set forth by Judge Wyzanski in U.S. v.
United Shoe Machinery Corp., 89 F. Supp. 349, at 351, thus:
It has sometimes been erroneously said that extrajudicial admissions are
receivable against a party as an exception to the heresay [sic] rule and that the
reason for the exception is either because in that party's eyes the statement
must at one time have seemed trustworthy or because it is only fair to put upon
that party the burden of explaining his own declaration. But the masters of
the law of evidence now agree that this is not the correct rationale [citing
Wigmore, Evidence, 3d ed., 1048.]
Where the natural person has an agent who makes a statement to a third
person, the statement is the principal's if the agent was authorized to make the
statement or was authorized to make on the principal's behalf true statements
concerning the subject matter. Restatement, Agency, § 286.
As there is nothing in the record to suggest that Respondent ever authorized Senters
to make any statement in Respondent's behalf, I accordingly rejected Senters' state-
ments as evidence.13
Practical and equitable considerations provide further basis for my refusal to
accept Senters' affidavit as evidence. Statements were attributed to him by other
General Counsel witnesses. Senters was available to testify, to affirm, to deny, or
to explain. Instead, his direct testimony was limited to avowing his pretrial state-
ment and Respondent was powerless to cross-examine him on anything except the
mechanics by which the statements were procured. This, I believe, deprives Re-
spondent of the valuable right to adequately confront and cross-examine witnesses
appearing against it. And indeed if permitted to become standard practice would
reduce the hearing of cases to a submission of files and pretrial statements. As I am
aware of nothing in the law of evidence that would permit curtailment of basic
rights in this fashion I would reject Senters' statement for this further reason.
Upon consideration of the evidence presented, including the statements found
upon credible evidence to have been made to Senters, I conclude and find as I did
in the case of Bellnier, that Respondent was aware of Hickey's union activities.
The complaints leveled at Hickey and relied upon as basis for discharging him
are even less substantial than those directed against Bellnier. Thus, except for
Black, whose testimony I reject, nobody seems to have had any complaint against
Hickey as of the day he was discharged.14 And apart from the unreported absence,
which was usually punishable, according to MacAleese, by a reprimand or a few
days' suspension, but never a discharge," Hickey was guilty of a "poor attitude,"
illustrated by earlier "soldiering" on the job. This feeling on the part of the Com-
pany, it appears, was the outgrowth of Hickey's outspoken remarks at an earlier
employee meeting and his several observations to management, including Black,
that the employees were given raises only at the expense of less overtime oppor-
tunities. Illustrative of Respondent's feelings toward Hickey was Black's statement
to him "I know your pedigree and everybody that works with you knows you are
very two faced about the whole thing and everybody that works here knows your
pedigree." 16
"Compare Barker's East Main Corp, 136 NLRB 494, 495, 513 See also N L R.B. v.
Quest-Shon Mark Brassiere Co, Inc., 185 F. 2d 285, 289 (C.A 2) ; Page Boy Company,
Inc., 107 NLRB 126; Cabinets, Inc., Subsidiary of Air Control Products, Inc., 130 NLRB
1378 ; Sealtest Southern Dairies Division, National Dairy Products Corporation, 126
NLRB 1223, 1225
14 It will be noted that in footnote 8 where I find Senters to be a supervisor I refer to
testimony by MacAleese that Senters had warned Hickey on his workmanship This find-
ing is viewed by me merely as an admission by MacAleese, whom I do not credit gen-
erally, that Senters was empowered to issue warnings. I do not thereby find that Hickey
was in fact warned by Senters On the contrary, in the absence of testimony by Senters
on this point when called as a witness, I find that he did not warn Hickey.
15 An employee with a %ery bad absence record was discharged in 1961 for failing to call
in. No other such instance could be recalled by Respondent 's witnesses.
1e The credited testimony of Hickey.
NEWTON FALLS PAPER MILL, INC. 1479
What occurred to Hickey is quite clear. Having failed to endear himself to
management not only by his persistent efforts to increase employee benefits, but by
his sponsoring of the unionization of the shop, Respondent seized upon the first op-
portunity to eliminate him. In the process Respondent, through MacAleese whom
I do not credit, seeks now to reach back and pick out incidents of poor workmanship
that it had never alluded to before by way of either warning or comment. Further-
more, Hickey had admittedly done good work and displayed "proper attitude" for
the 6 weeks following his failure to report his absence and up to the date of his
termination. Under such circumstances Respondent's continued determination to
discharge him could have no other reasonable connotation than that of reprisal for
his union activity. I accordingly find that Respondent by thus discharging Gene
Hickey discriminated against him in violation of Section 8(a) (3) and (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section IV, above, occurring in con-
nection with the operations of the Company described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
VI. THE REMEDY
Since it has been found that Respondent, by discharging David J. Bellnier and
Gene T. Hickey, discriminated against them in violation of Section 8(a)(3) of the
Act and has thereby interfered with, restrained, and coerced its employees in viola-
tion of Section 8(a)( I) of the Act, I shall recommend that Respondent cease and
desist therefrom and from infringing in any manner upon the rights of employees
guaranteed in Section 7 of the Act.17 I shall recommend that Respondent offer to the
aforementioned employees immediate and full reinstatement to their former or
substantially equivalent positions 18 without prejudice to their seniority or other
rights and privileges. I shall also recommend that Respondent make whole each of
the aforementioned employees for any loss of earnings they may have suffered
because of the discrimination against them, with backpay computed in the customary
manner 19 and with interest added thereto at the rate of 6 percent per annum?9
I shall further recommend that the Board order Respondent to preserve and make
available to the Board upon request payroll and other records to facilitate the check-
ing of the amount of backpay due and the rights of employment.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Association of Machinists, AFL-
CIO, by discharging or in any other manner discriminating against employees in
regard to their hire or tenure of employment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2 Take the following affirmative action which it is found will effectuate the
policies of the Act.
(a) Offer David J. Bellnier and Gene T. Hickey immediate rand full reinstatement
to their former or substantially equivalent positions.
17 N L R B v. Lamar Creamery Company, 246 F. 2d 8 (C A. 5).
18 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
'IF. W. Woolworth Co., 90 NLRB 289
20 Isis Plumbing & Heating Co ., 138 NLRB 716.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole David J. Bellnier and Gene T. Hickey in the manner set forth
in the section entitled "The Remedy."
(c) Preserve and, upon request , make available to the National Labor Relations
Board, or its agents, for examination and copying , all records necessary for the
determination of the amount of backpay due and the right of reinstatement under
this Recommended Order.
(d) Post at its Newton Falls , New York, plant copies of the attached notice
marked "Appendix ." 21 Copies of the said notice, to be furnished by the Regional
Director of the Third Region, shall , after being duly signed by the Respondent, be
posted immediately upon receipt thereof , in conspicuous places, and be maintained
for a period of 60 consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered , defaced, or covered by any other material.
(e) Notify the said Regional Director , in writing , within 20 days from the receipt
of the Trial Examiner's Intermediate Report, what steps the Respondent has taken
to comply therewith.22
' In the event that this Recommended Order be 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 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"
zz 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Association of Ma-
chinists , AFL-CIO, by discharging or discriminating in regard to their hire and
tenure of employment or any term or condition of employment of any of our
employees.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist the above -named Union , or any other labor
organization , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities except as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer David J. Bellnier and Gene T. Hickey reinstatement to their
former or equivalent job.
WE WILL make whole David J. Bellnier and Gene T. Hickey.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members in good standing of International Association of Machinists,
AFL-CIO.
NEWTON FALLS PAPER MILL, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed
Forces.
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 , Fourth
Floor, The 120 Building, 120 Delaware Avenue , Buffalo, New York , Telephone No.
TL 6-1782, if they have any question concerning this notice or compliance with its
provisions.