Packaging Corp. of America

National Labor Relations Board - Board Decisions

Sep 28, 1964

148 N.L.R.B. 1363 (N.L.R.B. 1964)

PACKAGING CORP. OF AMERICA (DENVER CARTON PLANT) 1363
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations described in section 1, 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
It having been found that the Respondent has engaged in certain unfair labor
practices , it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire 'record in
this case , I make the -following:
CONCLUSIONS OF LAW
1. Automatic Sealing Service, Inc., and the employer-members of Printers League
Section, Printing Industries of Metropolitan New York, Inc., are engaged in industries
affecting commerce within the meaning of Section 8 (b) (4) (ii) (B) of the Act.
2. New York Paper Cutters' & Bookbinders ' Local Union No. 119, International
Brotherhood of Bookbinders, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening, coercing, and restraining employer-members of the Printers
League Section , Printing Industries of Metropolitan New York, Inc., with an object
of forcing or requiring them to cease doing business with Automatic Sealing Service,
Inc., Respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(b) (4) (ii) (B) and 2,(6) and (7) of
the Act.
4. By inducing and encouraging employees of employer-members of Printers
League Section, Printing Industries of Metropolitan New York, Inc., to engage in
strikes or refusals in the course of their employment to perform services with the
object of forcing such employer-members to cease doing business with Automatic
Sealing Services , Inc., the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (4) (i) (B ) 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 omitted from publication.]
Packaging Corporation of America (Denver Carton Plant) and
Richard D . Gabrys. Case No. 27-CA-1562. September 28, 196 .
DECISION AND ORDER
On July 9, 1964, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
148 NLRB No. 134.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Examiner's Decision, the exceptions and the brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the exception noted
below.'
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, and orders that the Respondent,
Packaging Corporation of America (Denver Carton Plant), its of-
ficers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following ad-
ditions and modifications :
1. Substitute for paragraph 1(a) and 1(b), the following:
"(a) Threatening to deprive and depriving its employees of em-
ployment benefits in reprisal for their engaging in protected concerted
activities for the purpose of their -mutual aid or protection.
"(b) In any like or related manner interfering with, restraining,
or coercing its employees in their right to engage in self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as amended."
2. Substitute the attached Appendix for the Trial Examiner's
recommended notice.
1In view of the fact that the refusal to entertain a grievance was not alleged as a vio-
lation in the complaint , and because it is not necessary to reach that issue to fashion an
order adequate to remedy the unfair labor practices clearly committed , we do not adopt
any part of the Trial Examiner's discussion of that issue , nor his findings , conclusions,
or recommendations with respect thereto.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten to deprive or deprive our employees of
employment benefits because of their engaging in protected con-
certed activities for the purpose of their mutual aid or protection.
PACKAGING CORP. OF AMERICA (DENVER CARTON PLANT) 1360'
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the right to
self organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all of 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 amended.
PACKAGING CORPORATION OF AMERICA,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 609 Railway Exchange Building, 17th and Champa Streets,
Denver, Colorado, 80202, Telephone No. 297-3551, if they have any
question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The General Counsel's complaint, dated April 3, 1964, based on a charge filed by
an individual on February 27, 1964, alleged in substance that the Respondent
threatened to deprive, and deprived, its employees of certain employment benefits in
reprisal for certain of them having engaged in concerted activities for the purpose
of their mutual aid and/or protection, and thereby violated Section 8(a)(1) of
the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein
called the Act. The Respondent in its duly filed answer denied having engaged in the
alleged unfair labor practices. A hearing before Trial Examiner William E. Spencer,
with all parties participating, was held at Denver, Colorado, on May 21, 1964.
Upon consideration of the entire record in the case, from my observation of the
witnesses, and consideration of the brief filed with me by the Respondent, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, is engaged in the business of manufacturing
cardboard containers, and maintains a place of business and plant in Denver,
Colorado. During a representative 12-month period, it manufactured, sold, and
shipped from its Denver plant finished products valued in excess of $50,000 to States
other than Colorado.
II. THE UNFAIR LABOR PRACTICES
A. The situation
At times material herein the Respondent had a bargaining agreement with a labor
organization covering its production employees. Not covered in this agreement was
Respondent's practice throughout 1963 of deducting from the wages of all its
employees a contribution to the United Fund. On about December 29, 1963, a
group of 13 out of a total of some 60 employees signed papers amounting to a
petition stating that they wanted the deductions from their wages for the United Fund
discontinued. This petition they gave to their union representative, Heberling, who,
in turn, presented it to management.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 2, 1964, E. W. Peiker, Respondent's general manager, called a meeting
of factory employees in the plant and addressed them concerning the petition and
other matters. According to Richard D. Gabrys, the General Counsel's principal
witness and one of the 13 employees signing the petition, Peiker strode in front of the
employees, pacing quite hurriedly; asked if they had enjoyed their vacation and said
that he had not enjoyed his because of his receipt of the petition; said that the com-
pany had always operated on an informal basis, that he considered the matter of
contributions to the United Fund an individual matter, and that employees could
discuss their contribution with him on an individual basis; tore up the 2 sheets of
paper containing the 13 signatures and threw them at his feet; said that the action of
the 13 employees in signing the petition, "have resulted in some of your privileges
being denied you in the future"; and then stated that toilet privileges would be in
order only during the 10-minute break mornings and afternoons, and that employees
could no longer use the lunchroom for smoking between the break periods. Gabrys
testified, and it was generally admitted, that prior to January 2, employees had been
extended toilet and smoking privileges outside the break periods. Subsequent to that
date employees confined their smoking to the break periods but, as Gabrys admitted,
they continued to have access to the toilets according to their requirements. Accord-
ing to Gabrys, Peiker concluded his remarks by saying, "I think all of you know
who they are"-referring to the 13 who signed the petition-and, "If you don't like
it, you can just get the hell out."
Peiker admitted that he told the employees that he had not enjoyed his vacation
because of the petition; that he regarded the matter of United Fund contributions
an individual matter and employees could make appointments individually to discuss
the matter with him; that he saw "no purpose" in the petition and did not "recognize
it as any petition"; that he tore up the sheets of paper on which the 13 signatures
appeared and threw them upon the floor; that he discussed what he regarded an
abuse of smoking and toilet privileges; stated that these privileges would be restricted
to break periods in the future; and that, "If there are some of you here who don't
like it, all right, that is your privilege, but, by God, if it continues, there's going to be
some new faces." He denied that his announcement of restrictions on toilet and
smoking privileges was connected in any way with the United Fund petition. He
testified, and was corroborated in this by W. G. Williams, Respondent's produc-
tion manager, that the latter on learning that he was to address the employees on
January 2, suggested that inasmuch as he was having this meeting he should utilize
the occasion for reprimanding employees for their abuse of toilet and smoking
privileges, and advise them that in the future the rules on break periods would be
strictly enforced.
Several employees called as witnesses for the Respondent, some of whom signed
the United Fund petition, testified in effect that Peiker did not link the restriction
on toilet and smoking privileges with the petition, did not single out or refer to the
petition as the reason for the new restriction, and made no threats with respect to it.
B. Conclusions
There can be no doubt that collective presentation of a grievance, not in conflict
with an existing bargaining contract, is protected concerted activity within the mean-
ing of the Act. The protected right to present such a grievance would be an empty
thing if the protection began and ended with the presentation. Implicit is the duty
of management to receive and to give reasonable consideration to such a grievance.
Peiker obviously felt affronted that a group of his employees would address him as a
group rather than individually, and through the formality of a petition, in the matter
of the mandatory contribution to the United Fund. His action in rebuking the
13 employees who signed the petition and in tearing it up and throwing it on the floor,
accompanied by his fiat that they should see him individually or not at all in such
matters, was in and of itself coercive and an unlawful interference with their right
to act jointly in matters affecting the conditions of their employment not covered
by the collective agreement. The fact that Peiker, when he addressed the employees
on January 2, was totally uninformed of the protection afforded concerted activity
by the Act and was therefore innocent of intent or purpose to violate a law-he testi-
fied to that effect and I credit this-does not of course relieve the Respondent of its
responsibility for his action. I find, therefore, without looking further, that the
Respondent, by its refusal to entertain the collective grievance presented to it by
13 of its employees, its precipitate, angry, and contemptuous rejection of it, and
admonition that it would consider such a matter only when approached by its em-
ployees individually, engaged in conduct violative of Section 8 (a) (1) of the Act.
3 further find that Peiker's announcement of new restrictions on toilet and smoking
privileges afforded Respondent's employees, following immediately after his con-
PACKAGING CORP. OF AMERICA (DENVER CARTON PLANT) 1367
temptuous rejection of the petition , was intended to have and had the reasonable
effect of impressing on these employees that they could not engage in collective
activity of a like nature with impunity but, on the contrary , would be met with
reprisals . It matters not that the curtailment of toilet and smoking privileges was to
correct what the Respondent may well have considered violations of its rules in the
matter, and that such restrictions and curtailments were managerial prerogatives:
the fact remains that over a substantial period of time the employees had enjoyed,
without hindrance , a wide latitude in such matters , and were now told , in an angry
and preemptory manner, that this must stop , or they would face discharge . Assum-
ing that Peiker did not say explicitly that this curtailment of erstwhile privileges
resulted from the action of the 13 employees in filing their grievance-though
Gabrys, a generally credible witness , testified he did-the timing of the announce-
ment , its enmeshment with Peiker 's angry rejection of the grievance , and the
vehemence of Peiker 's announcement , would have about the same effect as such an
explicit statement , and I do not think that the juxtaposition of the two matters was
accidental .' The fact that employees summoned to the witness stand by the Respond-
ent testified that they did not regard Peiker's announcement as a reprisal for the
concerted activity of the 13 in presenting their petition, does not alter or modify this
conclusion , such testimony on subjective states of mind experienced in a time.past
being valueless in assessing the true significance of the statements made and the action
taken. Accordingly , it is found that the Respondent by juxtaposing its announce-
ment of restrictions on privileges previously enjoyed by its employees with its rejec-
tion of the collective grievance of 13 of its employees , with the intent , purpose,
and effect of coercing them in the exercise of their right to present grievances and'to
engage in collective activity within the meaning of the Act, violated Section 8(a)(1)
of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II above, occurring in con-
nection with the operations of the 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 com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that the Respondent engaged in conduct violative of Section 8 (a) (1)
of the Act, I shall recommend that it cease and desist therefrom and post notices
designed to effectuate the purposes and policies of the Act. While it is true that
Respondent's violations embrace only the one occasion and in that sense are
"isolated ," there being no general pattern of violations or a tendency to engage in
violation of the Act, the matter of employees ' right to engage in concerted activity
for their mutual aid and/or protection is too basic in the general design of the Act,
and the violations here registered are too grave , to render the imposition of such a
remedy as is here proposed needless and purposeless . On the contrary, it is necessary
to dissipate the effects of the unfair labor practices and to prevent future abuses of a
like nature.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent , Packaging Corporation of America, is an employer within
the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By rejecting consideration of a grievance filed with it jointly by certain of its
employees, warning them that it would consider such matters only if presented
individually, and announcing a restriction of certain privileges of employment
previously enjoyed by its employees, with the intent , purpose, and effect of coercing
its employees in the exercise of their right to engage in concerted activities for the
purpose of their mutual aid and /or protection, the Respondent interfered with,
restrained , and coerced its employees in violation of Section 8(a)(1) of the Act.
r
1 Contrary to Respondent ' s argument in its brief , this has nothing to do with Respond-
ent's undoubted right to make and enforce nondiscriminatory rules governing the conduct
of its employees ; it has to do with Respondent 's utilization of such managerial preroga-
tives for unlawful ends.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. 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
pursuant to Section 10(c) of the Act, it is recommended that Packaging Corporation
of America , its officers , agents, successors and assigns , shall:
1. Cease and desist from:
(a) Refusing to consider a grievance not in conflict with an existing bargaining
agreement , filed with it as a result of collective action by its employees , or some
of them; restricting the filing of such grievance to individuals ; utilizing the restriction
of privileges of employment enjoyed by its employees in retaliation for the filing
of collective grievances , and/or to discourage such activities.
(b) In any like or related manner interfering with, restraining or coercing its
employees in their right to present grievances not in conflict with an existing bargain-
ing agreement , or to engage in other concerted activities for the purpose of their
mutual aid and/or protection.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its Denver , Colorado , place of business, copies of the notice marked
"Appendix ." [ Board 's Appendix substituted for Trial Examiner 's Appendix.] 2
Copies of said notice , to be furnished by the Regional Director for Region 27,
Denver, Colorado , shall, after being duly signed by a representative of the Respond-
ent, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted . Reasonable
steps shall be taken to insure that such notices are not altered , defaced , or covered
by any other material.
(b) Notify the Regional Director for Region 27, in writing, within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to
comply herewith.3
2 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."
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."
Struksnes Construction Co., Inc. and International Union of
Operating Engineers, Local No. 49, AFL-CIO. Case No. 18-CA-
1696. September 28, 1964
DECISION AND ORDER
On March 10, 1964, Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief and the Charging Party
filed a brief in support of the Trial Examiner's Decision.
148 NLRB No. 136.