Pharmacy Paper Box Co.

National Labor Relations Board - Board Decisions

Mar 21, 1957

117 N.L.R.B. 713 (N.L.R.B. 1957)

PHARMACY PAPER BOX CO. 713
the clerical employees from the circulation department unit." As
the Petitioner seeks only a unit of circulation department clericals,
and does not have a sufficient showing of interest to support an elec-
tion in a unit embracing all clerical employees, we will not direct an
election among any of the clerical employees.
We find that the following employees of the Employer constitute
units appropriate for the purposes of collective bargaining:
1. All employees of the news-editorial department, including the
day and night news editors, the day and night telegraph editors, the
assistant sports editor, the day and night picture editors, the State
editor, the women's editor, the society editor, and the art editor, but
excluding the Sunday editor, the managing editor, the executive edi-
tor, city editors, the day sports editor, the editor of the editorial pages,
the head librarian, and all other supervisors as defined in the Act.
2. All employees of the circulation department, excluding office
clerical employees, employees presently represented by other labor
organizations, honor box attendants, the circulation manager, the as-
sistant circulation manager, and all other supervisors as defined in
the Act.
[Text- of Direction of Elections omitted from publication.]
n The Dispatch Printing Company, Incorporated , supra; cf. The Chicago Dally News,
Inc., 98 NLRB 1235.
Samuel Karasik, Nathan Karasik, Philip Karasik, Harry A.
Karasik, and Simon Karasik , d/b/a Pharmacy Paper Box Co.,
a Partnership and United Packinghouse Workers of America,
AFL-CIO.1 Case No. 13-CA-2085. March 21,1957
DECISION AND ORDER
On July 24, 1956, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in this proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent Company filed excep-
tions and brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Murdock,
Rodgers, and Bean].
1 The AFL and CIO having merged, we amend the identification of the Union 's affiliation.
117 NLRB No.110.
714 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case,2 and hereby adopts the findings,3 conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
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:
A. The Respondent, Samuel Karasik, Nathan Karasik, Philip Ka-
rasik, Harry A. Karasik, and Simon Karasik, d/b/a Pharmacy Paper
Box Co., Chicago, Illinois, its partners, officers, agents, successors, and
assigns , shall :
1. -Cease and desist from :
(a) Discouraging membership in United Packinghouse Workers of
America, AFL-CIO, or any other organization of its employees, by
discriminating in regard to the hire and tenure of their 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
labor organizations, to join or assist United Packinghouse Workers of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively 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 or all of 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 employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Harryette Elam immediate and full reinstatement to
her former or substantially equivalent position, without prejudice to
her seniority or other rights and privileges; and make her whole, in
the manner set forth in section V of the Intermediate Report entitled
2 The Respondent's request for oral argument before the Board is hereby denied as the
record, exceptions , and brief adequately present the issues and positions of the parties.
3 We do not pass upon the Trial Examiner's dictum that under Section 8 (c) of the
Act it is necessary to consider only whether statements made to employees contain a
threat of reprisal , and that it is unnecessary to consider whether such statements "are
phrased in futuro" Here, the complaint did not allege that the Employer violated
Section 8 (a) (1) of the Act by the statements made to its employees . Instead, the
General Counsel introduced the statements in question only for the purpose of showing
a motive for the discharge of Harryette Elam.
Further, we do not adopt any finding or possible inference drawn by the Trial
Examiner to the effect that Elam's production on the punch press was still on the in-
crease late in August 1955. However , this does not affect our ultimate conclusions herein.
PHARMACY PAPER BOX CO. •715
"The Remedy," for any loss of pay she may have suffered by reason of
the Respondent's discrimination against her.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
and the rights of employment under this Order.
(c) Post in conspicuous places in the Respondent's plant in Chicago,
Illinois, including all places where notices to employees are custom-
arily posted, copies of the notice attached to the Intermediate Report
marked "Appendix A." 4 Copies of said notice, to be furnished by the
Regional Director for the Thirteenth Region, shall, after being duly
-signed by the Respondent's representative, be posted by it, as aforesaid,
immediately upon receipt thereof, and maintained for at least sixty
(60) consecutive days thereafter. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
-or covered by any other material.
(d) File with the Regional Director for the Thirteenth Region,
within ten (10), days from the date of this Order, a report in writing
setting forth in detail ,the steps which the Respondent has taken to
-comply herewith.
4 This notice shall be amended by changing the Union 's affiliation as reflected herein,
and by substituting for the words "The Recommendations of a, Trial Examiner" the
words "A Decision and Order ." In the event that this Order is enforced by a decree of
a United States Court of Appeals, there shall be further substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order "
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on October 14 , 1955, and amended on November 29,
1955 , by United Packinghouse Workers of America , CIO, herein called the Union,
the General Counsel of the National Labor Relations Board , herein called the Gen-
eral Counsel 1 and the Board, respectively, by the Regional Director for the Thirteenth
Region (Chicago, Illinois ), issued a complaint dated April 6 , 1956 , against Samuel
Karasik , Nathan Karasik , Philip Karasik , Harry A. Karasik , and Simon Karasik
d/b/a Pharmacy Paper Box Co., a partnership , herein called the Respondent , alleging
in substance that the Respondent discriminatorily discharged or laid off employee
Harryette Elam for the reason that she engaged in concerted activities and joined
and assisted the Union and thereby engaged in unfair labor practices affecting com-
merce within the meaning of Section 8 ( a) (1) and ( 3) and Section 2 (6) and (7)
of the National Labor Relations Act, 61 Stat . 136, herein called the Act. Copies of
the complaint , the charges , and the notice of hearing were duly served upon the
Respondent and the Union.
The Respondent duly filed its answer wherein it admitted certain allegations of
the complaint but denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held on May 1 and 2 , 1956, at Chicago , Illinois,
before a duly designated Trial Examiner . The General Counsel and the Respondent
were represented at the hearing by counsel. Full opportunity to be heard, to ex-
amine and cross-examine witnesses , and to introduce evidence bearing upon the
issues was afforded all parties . Both parties argued orally at the conclusion of the
' This term specifically includes the counsel appearing for the General Counsel at the
bearing.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing. On May 28, 1956, a brief was received from the Respondent and from
the General Counsel.
Upon the entire record in the case and upon his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material herein has been, a partnership duly
organized under and existing by virtue of the laws of the State of Illinois, having its
principal office and plant in Chicago, Illinois, where it is, and has been, engaged in
the manufacture of setup paper boxes. The Respondent in the course, conduct, and
operation of its business causes, and at all times material herein has caused, large
quantities of a finished product described above to be furnished and sold to the
Curtiss Candy Company. During the calendar year 1955, the value of the finished
product so furnished and sold to the Curtiss Candy Company was valued at approxi-
mately $300,000.
The Curtiss Candy Company is an Illinois corporation engaged in the manufacture
of confectionery. During the course of its business, the Curtiss Candy Company
annually purchases from outside the State of Illinois materials valued in excess of 5
million dollars. The value of finished products shipped by the Curtiss Candy Com-
pany from its Chicago, Illinois, plant to points and places outside the State of Illinois
is valued in excess of 10 million dollars annually.
The Respondent conceded, and the Trial Examiner finds, that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Packinghouse Workers of America, CIO, is a labor organization admitting
to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The facts
For the past 30 years the Respondent has manufactured paper boxes exclusively
for the Curtiss Candy Company without written contract covering said work from
its branch plant located on the sixth floor of the Curtiss Candy Company building
in Chicago, Illinois, for which space the Respondent has never had a lease nor paid
any rent. Each week on Friday Curtiss Candy Company supplies the Respondent
with a copy of its manufacturing schedule for the coming week and the Respondent
produces boxes in accordance with that schedule. The Respondent's employees at
this branch plant are hired through the Curtiss employment department on the first
floor of the building and are paid the same minimum wage rate as the Curtiss em-
ployees. They use the same building elevators, cafeteria, and other facilities as the
Curtiss employees. In other words, Respondent's branch plant in the Curtiss build-
ing is to all intents and purposes an integrated department of the Curtiss operations.
In addition to this branch plant which is operated by Partner Nathan Karasik and
his plant superintendent, Edward Jagusch, Respondent's main plant under the op-
erating hands of the other partners is located elsewhere in the city of Chicago. The
record does not disclose what operations are involved there. The present case in-
volves only the branch plant located in the Curtiss Candy Company building.
Sometime about June 1955,2 the Union began an attempt to organize the employees
of the Curtiss Candy Company. On or about June 24-25, employee Harryette Elam
together with 3 or 4 others of the Respondent's employees attended a union meeting
at the union hall and became interested in organizing the employees of the Respond-
ent. At a second meeting held about a week thereafter for the employees of the
Respondent, Elam was elected chairman of the organizing group for the Respondent's
employees. Elam and the others then began soliciting the Respondent's other em-
ployees to join the Union, which effort Elam continued until the date of her discharge
on October 21.
According to Partner Nathan Karasik, hereinafter referred to as Karasik, Curtiss
"fed" the Respondent business throughout the year largely so that the Respondent's
facilities would be available to supply boxes for the traditional holiday periods when
the Respondent's production was a necessity for Curtiss Candy Company. In order
2 All dates herein are in the year 1955 unless otherwise specified.
PHARMACY PAPER- BOX CO. 717
to retain as much Curtiss business as possible, the Respondent in the summer of 1955
devised a punch press which perforated the cover of a paper box thereby permitting
dealers to break the cover in such a way that the box top could be used for counter
display purposes.
That summer the Respondent experimented by connecting its Rapid Rap machine,
which automatically folded and taped cardboard into rectangular candy boxes and
in addition pasted labels onto the cover thereof, with their new punch press machine
which by hand feeding perforated the cover as before mentioned. The Rapid Rap
machine, once the cardboard, tapes, labels, glue, etc., were placed in automatic
feeds, was entirely an automatic operation requiring the attention of an attendant
only to see that nothing went wrong mechanically and to stop the machine if
mechanical defects occurred. The punch press, however, was manually operated
requiring an operator to insert the covers into the machine until the cover itself
tripped an electrical device which caused the press to operate and perforate the
cover, to remove the perforated cover and to thereafter "nest" the perforated cover,
i. e., place the covers one inside the other in a sort of nest, at which point another
operator tied the nested covers preparatory for delivery to the Curtiss operations.
Elam began her employment with the Respondent at a date not given in this
record at a rate of 93 cents per hour. She then learned to nest in addition to her
then duties and was raised to 98 cents per hour.
When the aforementioned experiment was attempted, Elam was selected by Jagusch
to operate the punch press because of her proven abilities. The automatic Rapid
Rap machine can be regulated at various speeds from 1,100 boxes per hour to 2,100
boxes. The experiment started, of course, with the Rapid Rap machine operating
at its lowest speed. After Elam had a few weeks of experience on the punch press,
Respondent was able to increase the Rapid Rap machine to its maximum speed of
2,100 boxes per hour. In the week of June 18, Elam's rate of pay was raised to
$1.10 per hour because of her proficiency in operating the punch press. Whenever
for any reason Elam was unable to operate the press, the Respondent had to reduce
the speed of the Rapid Rap machine to its minimum for anyone who replaced Elam
as the operator of the punch press. During oral argument, counsel, in referring to
Elam, stated: ". . because of the efficiency of the girl, she was irreplaceable."
The record fully justified counsel's compliment.
According to Respondent witnesses Karasik and Jagusch, sometime in August,
after the Respondent had knowledge that the Union was attempting to organize the
employees of Curtiss but claimed to be without notice that the attempt also included
the employees of the Respondent, Karasik testified that he noticed a decline in the
production of Saf-T-Pop covers 3 and inquired of Jagusch as to the reason therefor.
According to this same evidence, Jagusch told Karasik that "Harryette [Elam] was
occasionally late, was slow getting to her machine after breaks, and lunch, and he
[Karasik] said we can't afford to slow the machine down for one girl, and if it was
necessary we would have to leave her go at the first opportunity if she did not im-
prove." Karasik's testimony was almost identical to that of Jagusch quoted above.
This evidence will be discussed in the "Conclusions" of this report.
On September 27 the Union filed a petition for certification with the Board in
Case No. 13-RC-4601 covering the Respondent's employees which was duly served
upon the Respondent. On October 8 the Respondent and the Union executed a
consent-election agreement providing that the Board should conduct an election
among the Respondent's employees on October 21 to determine whether the Union
represented a majority of the Respondent's employees within the appropriate unit.
On or about October 13, Karasik began calling all the Respondent's employees
into his office in groups of from 3 to 8. To these groups Karasik explained the
relationship between the Curtiss Candy Company and the Respondent, that the
Respondent had no contract or lease from Curtiss but was merely a tenant at will
in the building. He explained that Curtiss also made boxes itself which were more
inexpensive so far as Curtiss was concerned than those made by the Respondent.
Karasik reminded the employees that the Respondent gave them free Christmas
dinners and stated that he did not care who joined the Union but inquired what
more could the Union do for them except to collect dues from them every month
and be of no use to them. To one such group Karasik stated that if the Respondent
"got a union," then Curtiss would throw him out. To another he said that "If the
Union came in, that he would not be, probably would not be in business for longer
than a month, because if Curtiss found out he had a union, they would refuse to get
The punch press operation was used exclusively on Saf-T-Pop covers.
'718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boxes from him because Curtiss was a nonunion plant." Karasik's own description
of these meetings confirmed these findings .4
In addition to these group meetings in his office, Karasik also called employee
Paladino into his office alone and asked her if she knew anything about the Union
and if anyone had approached her about it. Paladino answered both questions in
the negative although Elam had solicited Paladino's membership in the Union at
least twice.
By telegram dated October 18, the Acting Regional Director in Chicago ordered
the consent election scheduled for October 21 postponed pending the handling of a
charge filed by the Union on October 14 charging that the Respondent had discharged
on October ' 11 one David Underwood because of his membership in the Union.
Subsequently the Regional Office found that this charge lacked merit.
On Thursday, October 20, the Respondent received oral notification that Curtiss
was laying off 1 shift of employees and had reduced its production of Saf-T-Pops by
.44 percent which necessarily caused the Respondent to plan to reduce its production
of Saf-T-Pop boxes by 44 percent also. This Thursday telephonic notification was
not official as, in the past, Curtiss had made changes between these oral estimates
.and the actual mimeographed form which is official and which is distributed to the
various departments of Curtiss and to the Respondent on Friday mornings of each
week. Karasik and Jagusch discussed this drop in production and determined to lay
off 3 employees and to move the punch press from the Rapid Rap machine to a hand
machine which approximated the slowest speed of the Rapid Rap, i. e., 1,100 boxes
per hour, for reasons of economy in the event that the cutback was confirmed by the
official figures the following day. Karasik then ordered the office girl, Selma Cole-
man, to "pull out the applications of the last 3 girls hired." Coleman thereupon
pulled the applications of employees Ceola Gibson, Mary Sue Caldwell, and Leatha
Brown which she gave to Karasik who in turn gave them to Jagusch. Later that
day Jagusch told Coleman that these three girls were to be laid off. There was then
some discussion between them as to whether it would be all right for Coleman to
send Caldwell's check to her by another employee as Caldwell was absent that day.
Coleman then telephoned to Caldwell but, as she was not in, gave a message to
Caldwell's roommate that Caldwell was being laid off for lack of work.5
On Friday, October 21, between 7:45 and 8 a. in., employee Paladino spoke to
Jagusch and told him that she heard that Harryette Elam was the union steward
in the plant and that Lorene Baker was her assistant steward. Jagusch answered that
he thought that the steward was somebody else or that he had someone else in mind.
VKarasik acknowledged that Jagusch told him of Elam's position with the Union
."Probably sometime Friday. That Friday."
About 8:20 a. in. that day the Respondent received a telephone call that Elam
was ill and would not be in that day, which message was relayed to Jagusch a
Shortly after 10 o'clock that Friday morning Jagusch instructed Coleman that
some changes had been made in the layoff and that they had decided to let Elam
go and to keep Leatha Brown because Elam was "late quite a bit."
Subsequently Jagusch telephoned and left a message for Elam that she had been
laid off for lack of work. She has never since been reinstated.
According to the Respondent's witnesses, Leatha Brown had been chosen to re-
place Elam on the punch press machine. That same morning Brown attempted to
operate the punch press machine and in pushing her very first cover into the machine
succeeded in seriously cutting her thumb.
On October 28 Elam applied for her unemployment compensation. On this
application form Elam checked "Lack of work" as the reason she lost her job with
Respondent. i
+ Karasik's testimony of his statements at these group meetings with employees was
as follows : "I did mention that if Curtiss Candy Company lost-I mean won the elec-
tion-in other words , if they were not unionized downstairs , and Pharmacy Paper Box
Co. would be unionized up on our floor , I said bow long do you think we would be in
the building after explaining our situation with them . I told them that we are there
not on any leasehold , that we have been with them all these years and that we are there
11for the purpose of the stuff we manufactured there. .. .
5 Respondent maintains that this telephone call was actually made on Friday as was
the pulling of the applications . Caldwell , however, verified the Thursday date as the
time of her notification
8In her testimony Coleman placed this call on Thursday but that was obviously a mis-
statement for all parties ' agreed that Elam was at work on Thursday but not at work
on Friday.
PHARMACY PAPER BOX CO. 719
On November 29, 1955, the Union amended its original charge and for the first
time charged that the discharge of Harryette Elam was in violation of Section 8 (a)
(3) of the Act.
B. Conclusions
The theory of the General Counsel as to this case is very simple. On Thursday,
October 20, Respondent decided for economic reasons to shut down 1 of its units
and to lay off the last 3 girls hired, to wit, Ceola Gibson, Mary Sue Caldwell, and
Leatha Brown. Then on Friday, October 21, within a matter of a couple of hours
after learning that its "irreplaceable employee," Harryette Elam, was the Union's
steward in the plant. the Respondent, in Jagusch's undenied words, "changed its
plans" and discharged Elam in lieu of Brown. Undenied facts appear to make a
strong case that Elam was discriminatorily selected for discharge in place of Brown
because of her activities on behalf of the Union.
"But," answers the Respondent, "we decided in August, long before we had any
information as to Elam's union activities to discharge her because she was 'con-
tinually late', in getting to her machine which could have had a demoralizing effect
upon the rest of the employees in the shop. All we did on October 21 was to carry
out our August decision to discharge Elam because the cutback by Curtiss in Saf-T-
Pop orders gave us our `first opportunity' to replace Elam. Although we did learn
about Elam's union activities just before her discharge, that had nothing to do with
our decision to discharge her, for that decision was made in August or, anyway, on
Thursday before we learned of her union activities on Friday."
Both these theories are quite convincing, if true. Respondent's theory eliminates
the remotest possibility of discrimination in the discharge of Elam for the General
Counsel conceded that, despite the fact that the Respondent's plant was a small shop
employing at the most only 35 or 40 persons and despite the fact that the Respondent
knew that the Union was trying to organize the employees in the building, the
General Counsel had no direct evidence proving that the Respondent knew of Elam's
union activities until employee Paladino told Jagusch on Friday, October 21, that
Elam was the union steward in this shop and this only an hour or so before her actual
discharge.
In order to test the Respondent's theory, it is necessary to do a little analyzing
of the known facts. Connecting the Rapid Rap machine with the new punch press
in the summer of 1955 was admittedly an experiment. The success of the experiment
depended upon the punch press operator who handled the sole manual operation in
the experiment. Jagusch personally selected Elam for that position. Elam proved
the choice to have been excellent for within a matter of weeks she had not only
increased the speed of production from the Rapid Rap's slowest speed of 1,100 boxes,
per hour to its maximum of 2,100 per hour and, in addition, was performing the
further operation of "nesting" the completed box covers. Thus she was successfully
performing two separate operations at the machine's maximum capacity. No other
operator on the punch press ever became sufficiently proficient on that operation
alone to get beyond the minimum speed of the Rapid Rap machine.
The Respondent was well aware of Elam's ability for, in the words of their
attorney:
Mr. WISE: There is also in the record that because of the efficiency of the
girl she was irreplaceable. We couldn't get somebody or otherwise you would,
ask why didn't you just leave her go, fire her at once. Her speed was such that
we could not get a girl like that, and we had to go and wait until production
slowed down by less work, and shift an automatic machine to a hand machine,
so as to be able to eliminate her.
TRIAL EXAMINER: That is one of the interesting features of this case. Why
the Respondent wanted to get rid of a girl who was so efficient and who, as you
put it, was irreplaceable. Now that is one of the factors which entered into'
this case. And that is one of the factors which makes my job so tough.
Mr. WISE: It was a situation where we just couldn't get a replacement for
her, and though we wanted to get rid of her, so all we could do was put up.
with her until an opportunity arose to replace her. .. .
In his testimony Jagusch also paid tribute to Elam's efficiency as an employee. Dur-
ing the week of June 18 the Respondent did the same by raising her rate of pay per
hour from 98 cents (93 cents base pay plus 5 cents for nesting) to $1.10 for her-
operation of the punch press. The record fully sustains the Respondent 's state-
ment that Elam was "irreplaceable."
As previously noted, Karasik testified that in late August he noticed a drop in the
production of the Saf-T-Pop covers (the punch press operation) and inquired as to-
the reason therefor. Other than Karasik's word there is no proof of any such decline-
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in production in this record. In fact, it appears more logical that, instead of a
decline, production on the punch press was still on the increase for it required
several weeks of operation before Elam was able to handle Rapid Rap' s maximum
speed. In those few weeks, of course, production rose from 1,100 to 2,100 boxes
per hour.
But be that as it may, the explanation, according to the witnesses for the Respond-
ent, for this so-called decline in production was that Elam was "continually" arriv-
ing at her machine late in the morning, after lunch, as well as after the morning
and afternoon coffee breaks at the plant. According to Jagusch, within a week or so
after attaining top speed Elam's lateness to work began to increase, "invariably"
she was the last girl at the machines, she came in late "more frequently than average
anyway." Jagusch "imagined" that Elam averaged 2 days late per week "and prob-
ably closer to 3." Elam acknowledged that "occasionally" she had been late.
Company records do not confirm the testimony of Jagusch. Elam's timecards
prove that in the last 20 weeks of her employment, beginning during the week
ending June 11, she had been late, i. e., punched the clock 1 or-more minutes after
8 a. in., 17 times for a total of 130 minutes of which 46 minutes were accumulated
on one occasion (August 1). In addition, for the final 7 weeks of her employment
Elam checked in late only 4 times for a total of 17 minutes of which 8 minutes were
accumulated on October 5. Hence, if anything, Elam's tardiness record improved
before her discharge. Clearly Jagusch's testimony was exaggerated and extrava-
gant. It is obvious that she was not late 2 or 3 times per week and the record so
proves. The records, in fact, confirm Elam's testimony.
Elam acknowledged that on occasion she had been delayed on the elevators in
returning from the coffee breaks on the infrequent occasions she went with others
to the cafeteria during the morning or afternoon break. But, as she indicated,
these same elevators also delayed others of the Respondent's employees in returning
from the breaks for she was not the only employee who occasionally went to the
cafeteria on the second floor during these breaks.
According to the testimony of Karasik, he noted this drop in production in the
latter part of August. The timecards for the last 3 weeks of August prove that
Elam was late only 3 times for a total of 19 minutes which, over that period of
time, is hardly enough to have affected production even if the press had been shut
down completely for that whole time. However, the evidence shows that the
press was not shut down on the occasions when Elam was late, nor was the speed
of the machine reduced because somebody else would operate the press throwing
the boxes he or she could not handle onto a table beside Elam's workplace. Upon
her return Elam would not only continue to perforate the covers coming on the
assembly line from the Rapid Rap machine but would also work in those covers
which had had to be temporarily put aside on her worktable. Hence on these
occasions there would be no loss of production?
The record here is conclusive that tardiness among the Respondent's employees
was not unusual at the plant. In fact, the Respondent admitted that there was a
rule in the plant that, while the Respondent did not condone such tardiness, it
allowed its employees 1 tardiness of 3 minutes per week without any reduction in
pay. However, if an employee was late twice during the week or was more than
3 minutes late on any I occasion, then the Respondent docked or reduced that
employee's pay by 15 or more minutes. The Respondent's explanation for this
rule was that the elevator service in the building was so poor that some such rule
was a necessity. The promulgation of this rule indicates that tardiness among all
the Respondent's employees was far from uncommon . The record proves that
Elam was docked in pay only 3 times over her last 17-week period of employment.
Further proof that tardiness among all the Respondent's employees was rather
common is the fact that, in order to get the plant operating in the morning and
after the various breaks, the superintendent and his foreman-mechanic quite regu-
larly had to operate machines until the regular operators arrived. Nor was it
unusual for Karasik himself to have to operate a machine for the same reason in
addition to the other two mentioned above. Unless operators were tardy or absent,
there would have been no need for company supervisors to operate.
In other words, there is nothing in this record which tends to corroborate the
oral testimony that there was a noticeable drop in the production of the Saf-T-Pop
covers. Additionally the record affirmatively indicates that, if 'there were such a
Strangely enough, according to the same testimony, Jagusch apparently did not
mention mechanical difficulties in this experimental tieup of the two machines as a cause
of the so-called decline in production although Karasik himself testified that "a lot of
times they have mechanical trouble "
PHARMACY PAPER BOX CO. 721
drop in production at that time, then such a drop was not in any way attributable to
Elam or her alleged tardiness.
Furthermore, if the Respondent's testimony regarding the August decision to
discharge the then "irreplaceable" Elam should be true, it is highly probable that
the Respondent would have instructed Elam to be on time or would have warned
her about the possible loss of her employment in an effort to improve her attendance
record. Actually the record proves that in only 3 of the 17 weeks for which
records are in evidence was Elam so much as docked 15 minutes' pay. Although
there is nothing with which to compare Elam's attendance record, Elam's record
does not appear to have been bad. Apparently the Respondent did not consider
her record bad either for the testimony of the Respondent proves, and the Respond-
ent only claims, that Elam was criticized for lateness only once during this entire
period. On that one occasion Jagusch testified that he "remarked" to Elam on a
date prior to the latter part of August: 8 "We start at 8 o'clock like the rest of the
girls. . If it happened again a couple of more times that if she didn't get down
on time, I would have to try to break someone else in on the machine." For an
employee who allegedly was personally causing a decline in plant production, this
warning appears mild. Nor did Jagusch try to break anybody else in on the punch
press machine. More significant; however, is the fact that the Respondent never
issued another warning to Elam, thereby rather clearly indicating its satisfaction
with the improvement in her record. This was in accord with what the timecard
records proved. Elam herself denied that she was ever criticized for lateness. On
all the facts here, the Trial Examiner must accept her denial.
Even under the Respondent's evidence, the August decision was to discharge Elam
at the first opportunity "if she did not improve" in her tardiness record. Respondent's
records prove that she did improve as she was late less frequently after August than
prior thereto. This improvement would appear to have canceled out any alleged
decision taken in August.
On Thursday, October 20, when the Respondent knew of the cutback in the
production of the Saf-T-Pop covers, Karasik asked for and received the applications
of the last three employees hired: Ceola Gibson, Mary Sue Caldwell, and Leatha
Brown. Although Selma Coleman, the office girl who impressed the Trial
Examiner as an efficient and honest girl despite her obvious misstatement as to the
day on which Elam was absent on account of sickness, referred to heretofore, and
Karasik disagreed as to whether Karasik had asked for the three applications on
Thursday as Coleman testified or on Friday as Karasik testified, they both agreed
that Karasik asked for and received the applications of Gibson, Caldwell, and
Brown. Furthermore these two witnesses both agree that Karasik never asked for
the application of Elam although such a request would have been regular procedure
at the time of a discharge .9
Furthermore it is undenied that Jagusch on Thursday, October 20, informed
Coleman that Gibson, Caldwell, and Brown were to be laid off. Employee Caldwell
was so informed that same day and arrangements were made to get her check to her.
It is further undenied that, after admittedly learning of Elam's union activities,
Jagusch informed Coleman on Friday, October 21, that "a change" had been made
and that Elam was to be discharged instead of Leatha Brown. Clearly, therefore,
Respondent originally missed his "first opportunity" to discharge Elam when that
decision was taken on Thursday to lay off 3 other employees and Elam was substi-
tuted as I of the 3 to be laid off only after the Respondent learned of her active
union status.
The facts make it quite definite that: (1) The Respondent made no decision in
August to discharge the "irreplaceable" Elam; (2) even if such a decision were made
to discharge Elam unless her tardiness record improved, the fact remains that her
tardiness record did improve after August so that the alleged decision of August
would have been nullified; (3) when the decision to lay off 3 girls for economic
reasons was taken on Thursday, October 20, Elam was not 1 of the employees to be
laid off originally; and (4) Elam was substituted as 1 of the employees to be laid
off in a "change of plan" caused by the fact that Respondent learned that Elam was
a shop steward for the Union in the plant. Thus it is clear that Elam would not
8 As Jagusch testified that he told Karasik of this "warning" at the time of the August
decision, the warning must necessarily have been prior thereto
9In his testimony Karasik attempted to explain this omission on the ground that there
was no "need" for the application of Elam as the decision had been made previously
during the month of August. He also attempted to explain that he requested the applica-
tion of Brown so as to check Brown's qualifications as a replacement for Elam.
423784-57-vol. 117-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been discharged but for her position in and activities on behalf of the Union.
Therefore, the Respondent discharged Elam in contravention of Section 8 (a) (3)
and (1) of the Act. The Trial Examiner so finds.
One further contention of the Respondent must be mentioned here. Respondent
claims, and Elam admitted, that when she applied for unemployment compensation
a week after her discharge, Elam had marked as the cause of her loss of her last
position a box marked on the application "Lack of work." "Lack of work" was
the reason given by the Respondent to Elam for her discharge at the time of that
discharge on October 21. Thus Elam was only repeating to the unemployment
compensation officials what she had been officially told by the Respondent. Under
these conditions it would seem that the Respondent would be estopped from attempt-
ing to make use of the fact that Elam accepted Respondent's word for the cause of
her discharge as a defense to a discriminatory charge. Occasionally in these cases
it takes the employee some time to find proof that the reason given by the employer
as the reason for the discharge was not in fact the true reason therefor. In this
case it was not until November 28, 1955, that the Union had become convinced
that the discharge of Elam was in fact discriminatory and not for the reason given
by the Respondent: i. e., lack of work. To permit the Respondent in this case to
take advantage of the fact that Elam at first accepted the word of the Respondent as
to the cause of her discharge would be to permit the Respondent to profit by its
own wrongdoing. This defense is without merit.
C. Interference, restraint, and coercion
The General Counsel opened his oral argument in this case as follows:
Mr. VON ROHR: Thank you. To begin with, Mr. Examiner, I have a few
comments to make with respect to the statement that Mr. Karasik made to
groups of employees when he called them into his office. Now, the General
Counsel, prior to the issuance of the complaint, considered the matter as to
whether or not those statements constituted an independent violation of Section
8 (a) (1). In view of the Board's holding that a prediction of what might happen
is just a prediction , and nothing else, statements to that effect have been held by
the Board to be free speech , and we have so considered Mr. Karasik 's statement
to the employees when they called them into the office.
TRIAL EXAMINER: Do I understand that the General Counsel is not contend-
ing that Mr . Karasik's statements to the employees constituted a violation of
Section 8 (a) (1)?
Mr. VON ROHR: No, sir, they are not alleged as an 8 (a) (1) in the com-
plaint. However, they were introduced for the purpose of showing a motive for
the discharge of Harryette Elam, and on that basis are certainly admissible.
Now, Mr. Karasik did not say: "If the Union comes in, I will shut the plant.';
In that case it would have been a definite threat and certainly the General Coun-
sel would be obliged to consider it a violation of Section 8 (a) (1). However,
he explained to the employees what might happen; the way Mr. Karasik put it,
according to the testimony of witnesses was that he told them that in the event
a union came into the plant , Curtiss Candy Company might not like it and there-
fore he might have to close the plant . I believe that that was the substance of
his statement . The statement made by Mr. Karasik indicates a definite hostility
to the Union. Those statements indicated that he did not want the Union in the
plant, and that he did not want the employees to have anything to do with the
Union . In effect that was his purpose of calling them into the office . He indi-
cated that he did not want them to vote for the Union and he certainly made his
feelings clear that he did not want the Union.
TRIAL EXAMINER: You maintain that there was no implied threat or anything
in those statements , is that it?
Mr. VON ROHR : Mr. Examiner , I can simply state that whether there is an
implication or not in those statements . perhaps there might be-it was not
alleged in the complaint , and, therefore , I cannot ask you to find that they were
independently violative of Section 8 (a) (1).
Accordingly, no finding will be made here that Karasik's statements to the groups
of employees to the effect that, if the Respondent "got a union," Curtiss Candy Com-
pany would throw Respondent out of the building and that "if the Union came in,
that [the Respondent ] would not be, probably would not be in the business for longer
than a month , because if Curtiss found out that [the Respondent ] had a union, they
would refuse to get boxes from [the Respondent ] because Curtiss was nonunion"
were violations of Section 8 (a) (1) of the Act.
PHARMACY PAPER BOX CO 723,
Under Section 8 (c), the so-called free speech section of the Act, the question of
whether these statements are protected or not should depend upon whether the state-
ments contained a "threat of reprisal" tending to intertere with, restrain , or coerce
the employees in their guaranteed rights to "form , join, or assist" labor organizations
and to bargain through representatives of their own choosing , etc., and not on whether
the statements are phrased in f uturo.
While the Trial Examiner agrees with General Counsel that the statements indi-
cate a "definite hostility to the Union " and "perhaps there might be" at least an
implied threat contained therein, he believes that General Counsel's statement in,
oral argument forecloses him from passing on the issues presented thereby.
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 of the Respondent described in section I, 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 the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Harryette Elam by discharging her on October 21, 1955,
the Trial Examiner will recommend that the Respondent offer to Harryette Elam im-
mediate and full reinstatement to her former or substantially equivalent position,
without prejudice to her seniority or other rights and privileges, and make her whole
for any loss of pay she may have suffered by reason of said discrimination by pay-
ment to her of a sum of money equal to that which she would have earned as wages,
from the date of the discrimination against her to the date of the offer of reinstate-
ment, less her net earnings during such period, in accordance with a formula set
forth in F. W. Woolworth Co., 90 NLRB 289.
,In the opinion of the Trial Examiner, the unfair labor practices committed by the
Respondent in the instant case are such as to indicate an attitude of opposition to
the purposes of the Act generally. In order, therefore, to make effective the inter-
dependent guarantees of Section 7 of the Act, thereby minimizing industrial strife
which burdens and obstructs commerce , and thus effectuate the policies of the Act,
it will be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Packinghouse Workers of America, CIO , is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discharging Harryette Elam on October 21, 1955, thus discriminating in
regard to her hire and tenure of employment because of her membership in and
activities on behalf of United Packinghouse Workers of America, CIO, thereby
discouraging membership in United Packinghouse Workers of America , CIO, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
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.
[Recommendations omitted from publication. I
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Packinghouse Workers of
America, CIO , or any other labor organization by discriminating in any man-
ner against our employees in regard to their hire or tenure-of-employment or
any term or condition of their employment.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization, to form labor or-
ganizations , to join or assist United Packinghouse Workers of America, CIO,
or any other labor organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the pur-
poses 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 employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Harryette Elam immediate and full reinstatement to her
former or substantially equivalent position , without prejudice to her seniority
or other rights or privileges , and will make her whole for any loss of pay she
may have suffered as the result of our discrimination against her.
All our employees are free to become or remain members of United Packinghouse
Workers of America, CIO, or any other labor organization.
PHARMACY PAPER Box Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
International Hod Carriers, Building and Common Laborers
Union of America , Local #341 and John Allan Grant
J. H. Pomeroy and Company, Inc. and John Allan Grant. Cases
Nos. 19-CB-273 and 19-CA-909. March 02, 1957
SUPPLEMENTAL DECISION AND DETERMINATION
On April 30,1954, the Court of Appeals for the Ninth Circuit entered
a decree enforcing a Decision and Order by the Board of March 3,
1954, which had been issued pursuant to a settlement agreement in this
proceeding. Thereafter, a supplemental proceeding was held before
David F. Doyle, Trial Examiner, to determine the amount of back
pay due Grant under paragraph A (2) (e) and paragraph B (2) (c)
of the court's decree.
On September 5, 1956, the Trial Examiner issued his Supplemental
Intermediate Report in the above-entitled proceeding, a copy of which
is attached hereto, finding that back pay in the sum of $272.03 was
due Grant for the year 1953 and that this amount had been computed
correctly, agreed upon by the parties, and tendered in payment by the
Respondents. The Trial Examiner further found that the issue of
Respondents' back-pay liability to Grant for the year 1954 was not
properly before him, but that, in any event, the General Counsel had
failed to establish by a preponderance of the evidence that either Re-
spondent Company or Respondent Union was liable for back pay for
the year 1954. Thereafter, the General Counsel filed timely exceptions
to the Supplemental Intermediate Report, together with a supporting
brief, and Respondents filed reply briefs.
117 NLRB No. 114.