Quality Packaging Products, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1972

198 N.L.R.B. 1084 (N.L.R.B. 1972)

1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quality Packaging Products, Inc. and General Drivers
and Helpers Local No . 823 affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case
17-CA-4995
August 28, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 25, 1972, Trial Examiner Robert E. Mullin
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order," as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below
and hereby orders that Respondent, Quality Packag-
ing Products, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order, as herein modified.
Substitute the attached notice for the Trial Exam-
iner's notice.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 N LRB 544,
enfd . 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
General Drivers and Helpers Local No. 823
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, or any other union, by discharg-
ing or otherwise discriminating against our
198 NLRB No. 153
employees because of their union or concerted
activities.
WE WILL NOT interrogate any employee con-
cerning that individual's union activity, or that of
any other employees, in a manner constituting a
violation of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with loss
of jobs or closing of the plant if a majority
become members of, or assist, a labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights to self-organization, to form, 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 concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities.
WE WILL offer Adam Bluma and Clifford
Klepper immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and make them whole for any loss of
pay suffered as a result of the discrimination
against them.
QUALITY PACKAGING
PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 610 Federal Building, 601 East 12th
Street, Kansas City, Missouri 64106, Telephone
816-374-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E . MULLIN, Trial Examiner : This case was heard
QUALITY PACKAGING PRODUCTS, INC. 1085
on April 6, 1972, in Iola, Kansas, pursuant to a charge duly
filed and served,' and a complaint issued on March 20,
1972. The complaint, as amended at the opening of the
trial, presents questions as to whether the Respondent
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. In its answer, and amended
answer, duly filed, the Respondent conceded certain facts
with respect to its business operations, but it denied all
allegations that it had committed any unfair labor
practices.
At the trial, the General Counsel and the Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, and
to file briefs. The parties waived oral argument and on
April 26, 1972, both the General Counsel and the
Respondent submitted briefs.
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Kansas corporation with a plant and
principal place of business at Iola in that State , is engaged
in the manufacture and sale of paper products and
sandwich shop supplies for the fast food industry. In the
conduct of its operations, the Respondent annually
purchases goods and material valued in excess of $50,000
directly from sources located outside Kansas . In the course
of a year, the Respondent sells and distributes products
valued in excess of $50 ,000 to customers in 43 States.
Upon the foregoing facts, the Respondent concedes, and
the Trial Examiner finds, that Quality Packaging Products,
Inc., is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers Local No. 823, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, herein called
Teamsters , or Union, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
About December 26, 1971, Adam J. Bluma, an over-the-
road driver for the Respondent, contacted a representative
of the Teamsters and asked assistance in organizing the
Company's truck drivers. A day or two later, Dallas
Walker, an assistant business agent for Local 823, met with
Bluma and planned an organizational meeting with the
drivers. On December 30, Walker met with the Respon-
dent's drivers at a truck stop in Chanute, Kansas, where
Bluma's wife operated a cafe known as Bluma's Restau-
rant.' All of the Respondent's seven drivers were present
and all signed authorization cards in the Teamsters at that
time . At the conclusion of the meeting, Walker mailed a
letter to Frank L. Ball, executive vice president of the
Respondent, wherein he set forth the Union's claim to
represent all of the over-the-road drivers and requested
recognition as the bargaining agent for the drivers in such a
unit.
Insofar as the record discloses, the only other experience
which the Respondent' s management had had with umon
or concerted activities occurred about a year earlier.
According to John O'Mara, a driver in the Respondent's
employ, late in November 1970, he and four other drivers
had a meeting with Vice President Frank Ball at which
they requested better wages and various fringe benefits.
Ball promised to give them an answer at 3 o'clock that
afternoon. When the drivers returned to his office at the
appointed hour, Ball told them that all five were dis-
charged, effective at once, and thereupon handed them
their final checks. About a month later, Ball rehired
O'Mara, but, according to the latter, he did so only after
asking O'Mara: "Did you learn your lesson?" O'Mara
further testified that at this same time , Ball told him he had
concluded that Otis Tippy, another one of the drivers
involved in the demand for more pay, had been what he
described as the "instigator of the deal" and that Tippy
would never be hired again. According to O'Mara, Tippy,
in fact, was never rehired. O'Mara's testimony as to this
incident was credible and it was in no way denied or
contradicted by any witness for the Respondent.3
Frank Ball acknowledged having received the Union's
request for recognition on about January 1, a Saturday. He
testified that on the following Monday, he discussed it with
Jack Ball, the president of the Respondent who was also
his brother.
O'Mara testified that on Sunday, January 2, he went to
the Respondent's office to check his schedule for the
following week and that while there he had a conversation
with Frank Ball. According to O'Mara, he told Ball that he
had signed a umon card. O'Mara testified that thereafter
Ball asked whether anyone else had done so and, when he
told the vice president that all the drivers had signed cards,
Ball stated "You know we fired everybody a year ago,
didn't you learn your lesson then?" According to O'Mara,
Ball then asked who was the "instigator" of the organiza-
tional campaign and when he (O'Mara) declined to answer,
Ball declared "It was Bluma, wasn't it?" O'Mara testified
that in concluding their conversation, Ball stated that
"Jack [Ball] and him ... would never see a union, he
would sell . . . out first."4 Frank Ball conceded that he
had a conversation with O'Mara at the time and place in
question, but testified that it was the employee who
initiated the discussion of the Union. He denied having
interrogated O'Mara as to his union activities or those of
anyone else. However, he acknowledged having heard
The charge was filed on January 24, 1972 the transcript is corrected in accordance therewith
2 On pp 48 and 53, the transcript incorrectly refers to this place as 9 The quotations in the foregoing paragraph are from O'Mara's
Loomis' Restaurant In his brief, the General Counsel moved that this testimony
reference be changed to read "Bluma's Restaurant " No objections having a The preceding quotations in this paragraph are from O'Mara's
been raised by the Respondent to this proposal, the motion is granted and testimony
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Mara state, on this occasion, that all seven of the
Company's drivers had signed union authorization cards.
When on the stand, O'Mara acknowledged having
introduced the subject of the Union in his conversation
with Ball. His ensuing testimony as to the balance of the
discussion had with Vice President Ball was credible and
withstood an able cross-examination by counsel for the
Respondent. Whereas Ball generally denied having interro-
gated the employee as to his own or any other employee's
organizational activities, these denials were unpersuasive.
It is the conclusion of the Trial Examiner that O'Mara was
a credible witness as to this particular incident and that the
conversation with Ball occurred substantially as O'Mara
testified.
Jack Ball testified that at some time early in the week of
January 2, his brother Frank informed him of the receipt of
the Union's demand for recognition. He also testified that
at some time, either then, or later in the week, his brother
told him about the conversation with O'Mara and of the
meeting which the drivers had had with the union
representative. Jack Ball conceded that it was "possible"
that Frank could have told him that, according to O'Mara,
all seven of the drivers had signed union cards .5
On January 3,6 the Teamsters filed a representation
petition wherein that Union sought an election for a unit
made up of all the drivers in the Respondent's employ. At
some point thereafter the Respondent agreed to an election
which would be held on February 14.7
In a dismissal letter dated January 7, the Respondent
discharged Clifford N. Klepper. In another letter, dated
January 8, it discharged Adam J. Bluma. The General
Counsel alleges that both discharges were in violation of
Section 8(a)(3) of the Act. This is denied by the Respon-
dent.
About January 31, Paul Nance, one of the drivers, had a
conversation with Jack Ball at the warehouse for Brice
Wholesalers in Wichita, Kansas .8 According to Nance,
during the course of their meeting,9 Ball asked him how he
felt about "things." 10 Nance testified that he inquired as to
whether Ball meant the Union and the latter answered in
the affirmative. According to Nance, he told the president
that he had signed a union card and although he was not
certain as to how he would vote, he did want to see some
changes. Nance testified that Ball concluded their conver-
sation by telling him that the Company could do better for
the employees without the Union. Jack Ball acknowledged
that he had had a conversation with the employee at the
time and place in question. According to Ball, Nance asked
that he call a meeting of the drivers to settle their
differences before anything came up for a vote, but that he
told the employee that that would be impossible at that
time (presumably because of the pending election), even
though previously he had always felt that he should sit
down and talk with anyone that worked for him. Although
Ball generally denied having interrogated Nance about his
5 The quotation is from the testimony of Jack Ball
6 All dates that appear hereinafter are for the year 1972, unless otherwise
noted
r There is nothing in the record to indicate that this election was ever
held. Presumptively, subsequent to the filing of the unfair labor practice
charge on January 24, the Regional Director postponed all further
proceedings in the representation case
union activities, he did not specifically deny the conversa-
tion as related by Nance. The Trial Examiner concludes
that during the course of that discussion, Ball did question
Nance as to the Union and thereby opened up the
discussion about which both of them testified.
Nance testified that on February 6, a Sunday morning,
he was in the plant office with Frank Ball when the subject
of the Union came up again. According to Nance, Ball told
him that the Company did not need the trucks it was using
at the time and that it could go back to making its
shipments via Capital Truck Line, a common carrier that it
had used at some point in the past. Nance further testified
that before Ball concluded the conversation he stated that
"two of the union instigators were no longer with us."
Frank Ball did not deny the substance of the conversation
which Nance attributed to him. According to Ball, Nance
came to the office on that particular Sunday to get a travel
advance prior to leaving on a scheduled trip and that after
he had given the employee the money, he told him that
such favors would be difficult to offer the drivers in the
event they went ahead with their plans for a union.
According to Ball, in concluding the conversation, he told
Nance, "I am sure that in the future . . . I will not be able
to open up the cash box on Sunday and do you a favor
such as you've asked me to do today."
B. The Alleged Violations of Section 8(a)(3);
Findings and Conclusions in Connection Therewith
1. Adam J. Bluma
Bluma was a truckdriver in the Respondent's employ
from August 2, 1971, until January 8, 1972. As noted
earlier, in the latter part of December he contacted Union
Organizer Dallas Walker and thereafter arranged for a
meeting of the Respondent's employees at which all of the
drivers, including Bluma , signed cards in the Teamsters.
To the facts in connection with his termination we will
now turn.
On January 6, Bluma incurred a back injury while on
duty. Early on the following morning he left Iola on a trip
that was scheduled to last until January 9. When he
reached McPherson, Kansas, he visited a doctor who
advised him that he should not drive until his back injury
improved. Bluma thereupon telephoned Frank Ball,
explained his difficulty and told him that he would
endeavor to complete his deliveries if no replacement could
be secured. Ball told Bluma that he was aware of his
situation and thereafter arranged for another driver who
was in Wichita at the moment with an empty truck to drive
to McPherson and exchange units with Bluma . As a result,
that afternoon Bluma began the returnjourney to Iola, this
time with an empty trailer. He arrived at the plant dock
about 7 p.m.
The normal practice for a returning driver required that
he detach the trailer at the plant warehouse, and then
8 President Jack Ball apparently was at this location in Wichita, a
substantial portion of the time What business connection , if any, the
Respondent had with Brice , other than that of supplier or customer, does
not appear in the record
9 At the time , Nance was in the process of unloading an order at the
Brice Warehouse
10 The quotation is from Nance's testimony
QUALITY PACKAGING PRODUCTS, INC. 1087
deliver the tractor to the Ryder Truck Lease Station some
10 blocks away where the tractor would be serviced prior
to another departure. The process of detaching the trailer
from the tractor required cranking a "dolly" down into
position so that the trailer would be supported after the
tractor was driven away. While this was an operation that
could be performed by one man, it required a considerable
amount of physical exertion.
Bluma testified that on arriving back at the plant on the
evening of January 7, there were no warehouse employees
at the scene, and, because of his physical condition, he did
not detach the trailer and return the tractor to the Ryder
station. Instead he backed the trailer into the lot and left it,
along with the tractor, and then departed for his home.
About 9 a.m. the following morning Frank Ball tele-
phoned Bluma. He testified that he found that Bluma was
still in bed at the time but that he talked with him then
because he was concerned as to whether the employee
would be able physically to make a trip to Ohio what was
scheduled to leave the following Monday. Later that
morning, Ball telephoned Bluma again and told him that
the trip to Ohio would start at 8 a.m., on January 10, rather
than 6 a.m., as originally scheduled. At no time during
either of these conversations did Ball question Bluma as to
why he had not returned the tractor to the Ryder station
the evening before.
When Bluma reported for duty on the following Monday
morning, Ball handed him a dismissal letter, dated January
8, which stated that the employee was being terminated,
effective at once, for having failed to comply with a
company rule that on coming back from a trip the driver
should return the tractor to the Ryder station. Bluma
testified that at this point he tried to explain to Ball that on
Friday evening, due to his back injury, he had been unable
to "dolly" the trailer down and return the tractor toRyder.
According to Bluma, Frank Ball's only response was,
"rules are rules and there was no excuse for violating
them."
The rule to which Frank Ball referred was embodied in a
five-page statement of company policies which became
effective on January 3. Copies of this document had been
handed to each driver on December 22, when he received
his last paycheck before Christmas. The preceding Septem-
ber, Ball had called a meeting of the drivers at which time a
representative of Ryder had emphasized his company's
desire that each tractor be returned to the Ryder station
immediately after a trip so that it could be serviced prior to
further usage; After the September meeting, there ap-
peared on the drivers' bulletin board the following
announcement:
Leave your trailer here and your tractor at Ryder
Station at the end of each of your runs.
Frank Ball conceded that subsequent to December 22
when the new rules were given to the employees along with
their paychecks, no meeting was held with the employees
to emphasize their significance. He also acknowledged that
at no time between September and January had the
employees been told that failure to comply with such rules
would be grounds for dismissal.
Bluma credibly testified that he left his tractor at the
company dock about six different times during the period
from September to January and that on none of these
occasions had he been warned or threatened with dis-
charge.ii Similarly, Paul Nance credibly testified that
during the past year he left his tractor at the plant about 12
times , either because he returned to Iola late, or because
the warehouse crew needed the tractor for moving other
trailers. John O'Mara likewise testified, credibly, that
during approximately the same period he left his tractor at
the plant about six times . In none of the foregoing
instances was any driver warned or disciplined for having
breached the rule about returning the tractor to the Ryder
station.
Frank Ball conceded that about 8 or 9 p.m. on January 7
he saw Bluma's tractor and trailer parked at the warehouse
and that he noticed it again in that same location about 8
a.m. the following morning . Notwithstanding this knowl-
edge, at 9 a.m. on Saturday, when he had a telephone
conversation with Bluma , he never mentioned the matter
of the tractor not having been returned to Ryder. Instead,
the entire conversation, according to Ball 's own testimony,
was concerned with whether Bluma's physical condition
would permit him to handle a trip scheduled to depart the
following Monday morning. Later that morning , Ball had a
second conversation with Bluma , and, again, no mention
was made by the company official of any alleged
derelection on the employee's part. Instead , Ball merely
confirmed with Bluma that the trip scheduled for Monday
morning would depart at 8 a.m. rather than 6 a.m.
Frank Ball testified that after these conversations with
Bluma he had a three-way telephone conference with
President Jack Ball and Larry Manion 12 and at that time it
was decided to dismiss Bluma for having violated the plant
rule about returning tractors to the Ryder station. Both
Jack Ball and Frank Ball denied that the matter of union
membership was discussed at any time during their
deliberations. However, both conceded, as found earlier
herein, that they had been apprised through Frank Ball's
conversation with O'Mara on January 2 that recently all of
the drivers had signed union cards.
The General Counsel contends that the termination of
Bluma was in reprisal for his union activities, an allegation
that is denied by the Respondent in its entirety. It is the
conclusion of the Trial Examiner that the General
Counsel's allegation is well founded for the reasons which
appear below.
In its brief the Respondent asserts , correctly, that the
General Counsel has the burden of proving discrimination,
and that the Respondent does not have the burden of
establishing the contrary. Indiana Metal Products Corp. v.
N. L. R. B., 202 F.2d 614, 616 (C.A. 7). See also N. L. R. B. v.
Kaiser Aluminum & Chemical Corp., 217 F.2d 366, 368
(C,A. 9); N. L. R. B. v. McGahey, 233 F.2d 406, 413 (C.A.
4); N. L. R. B. v. Soft Water Laundry Co., 346 F.2d 930, 936
11 However , Bluma conceded that prior to doing so, in each of those personnel for moving other trailers around during the loading process
instances, he discussed the matter with Harold Hoffman, supervisor of 12 Ball described Manion as a member of the corporate board of
loading at the warehouse , and that each time Hoffman told him to leave the directors and the Respondent 's credit manager
tractor at the warehouse so that it could then be used by warehouse
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(C.A. 5). Moreover, the burden of proof never shifts from
the General Counsel and the Respondent does not have
the burden of proving that it discharged an employee for
the reason which it asserts. As was said by a court of
appeals in an early case, so long as the provisions of the
Act are not violated, an employer may discharge an
employee for "a good reason, a poor reason or no reason at
all." Budd Mfg. Co. v. N.L.R.B., 138 F.2d 86, 90 (C.A. 3),
cert. denied 321 U.S. 773. At the same time, it is also true,
that an employer does not ordinarily discharge an
employee for "no reason at all," and that support for a
finding of unlawful motivation " is agumented [when] the
explanation of the discharge offered by the respondent
[does] not stand up under scrutiny." N.LR.B. v. Bird
Machine Company, 161 F.2d 589, 592 (C.A. 1).
Bluma was dismissed , without warning, for the alleged
breach of a recently promulgated rule which, according to
the credible testimony of three drivers, in the past had
never been scrupulously observed. Nevertheless, on Janu-
ary 8, after a conference of the board of directors, the
decision was made to terminate Bluma , summarily. It is
relevant to note that at that time Jack and Frank Ball had
received the Union's request for recognition and from
O'Mara they had learned that all of their drivers had
signed union cards. Approximately 13 months earlier when
O'Mara and four other dnvers had banded together and
sought a pay raise and other benefits, they were dismissed
within a matter of hours.13 On January 2, when O'Mara
disclosed to Frank Ball that all the drivers had signed cards
for the Teamsters, Ball reminded him: "You know we fired
everybody a year ago, didn't you learn your lesson then?"
In this same conversation, Ball questioned O'Mara as to
who was the "instigator" of the organizational campaign
and when the employee declined to answer, Ball volun-
teered "It was Bluma, wasn't it?" Thereafter, Ball told
O'Mara that his brother, Jack Ball, would never see a
union, he would sell. . . out first."
The timing of the discharge immediately after all the
drivers selected the Union provides persuasive evidence of
discrimination. N.L.R.B. v. Tennessee Packers, Inc., 390
F.2d 782, 784 (C.A. 6); N.L.R.B. v. Delight Bakery, Inc.,
353 F.2d 344, 345 (C.A. 6) As one court stated: "[i]t
stretches credulity too far to believe there was only a
coincidental connection between [the discovery of the
employee's activity] on behalf of the Union . . . and the
abrupt termination of [his] employment...." Angwell
Curtain Co. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7).
The celerity with which the Respondent' s management
moved to dismiss Bluma , an employee whose work record
had not been questioned prior to the alleged violation of
the plant rule that had been promulgated so recently, was
not a normal reaction. Here, the Respondent's "demand
for strict compliance [with the rule on returning tractors to
the Ryder station] . . . is more consistent with antipathy
for union activity than concern over the plant rules."
N.L.R.B. v. General Industries Electronics Company, 401
F.2d 297, 301 (C.A. 8). It is the conclusion of the Trial
Examiner, on the facts present here, that the purported
concern of the Respondent 's officials with Bluma's having
failed to comply with the rule on tractors was a pretext and
that the real reason for the employee 's precipitate termina-
tion was his union activities . N.LR.B. v. General Industries
Electronics Company, 401 F.2d 297, 301 (C.A. 8); N.L.R.B.
v. D'Armigene, Inc., 353 F.2d 406, 409 (C.A. 2); Saginaw
Furniture Shops v. N.LR.B., 343 F.2d 515, 518 (C.A. 7);
Time-O-Matic, Inc. v . N.LR.B., 264 F.2d 96, 102 (C.A. 7).
Consequently, the Trial Examiner concludes and finds that
by its discharge of Bluma, the Respondent violated Section
8(a)(3) and (1) of the Act.
2. Clifford N. Klepper
Klepper was employed as a truckdriver from January
1971 until January 7, 1972. Along with all the rest of the
drivers for the Respondent, Klepper attended the Team-
sters meeting on December 30, 1971, and signed an
authorization card.
Klepper had an excellent driving record. At the trial
Frank Ball described him as the "best driver we had." 14
Nevertheless, he was discharged on January 7, allegedly for
having taken the wrong tractor on a trip to New Orleans.
Klepper testified that on December 30 he went to the
shipping office to check the schedule for the following
week. At that time he saw that he was posted to leave on
Monday morning for a trip to New Orleans with Trailer
No. 5. Klepper credibly testified that at that time the
schedule had no specific tractor assigned to that trip. At
the scheduled hour on the following Monday morning,
January 3, Klepper went to the Ryder station, secured a
tractor and then returned to Respondent's warehouse
where he found Trailer No. 5, loaded and ready. Klepper
testified that at 7 a.m. when he was ready to depart, no
supervisory personnel were present and that he made no
attempt to contact them anywhere else because the orders
and all the necessary papers for the trip were in their
customary place at the rear of the trailer.
On the afternoon of January 3, and while enroute to
New Orleans, Klepper telephoned Frank Ball's office, in
keeping with a plant requirement that a driver make a daily
report on his position. When he did so, Ball came on the
telephone and immediately asked which tractor Klepper
had. The latter told him that it was No. 18734. Ball
thereupon declared, according to Klepper, "I thought so
... You know that [tractor] goes to California and
California only." Klepper told him that he was unaware of
any such restriction on the tractor. According to the latter,
Ball then asked him when he would be back and when
Klepper told him that he would return to Iola by Friday
night, Ball told him "If you are back by Friday night,
everything will be all right."
Ball's testimony as to this conversation was in substantial
accord with that of Klepper. Ball testified that Tractor No.
18734 was scheduled to leave for California on Saturday
morning, January 8, and in the telephone conversation he
told Klepper that he (Klepper) would be in trouble unless
he was able to return by Friday night. Ball conceded that
13 Whereas this incident , having occurred in November 1970, and shed light on the true character of matters working within the limita-
beyond the Sec 10(b) period, may not serve as the basis for an unfair labor tions . . " Local Lodge No 1424, ]A M v N.LR.B, 362 U S. 411, 416
practice finding , it is relevant background evidence that "may be utilized to 14 The quotation is from Frank Ball's testimony.
QUALITY PACKAGING PRODUCTS, INC. 1089
Klepper assured him that he would return by Friday
evening.
Klepper did, in fact, return by Friday evening. At that
point, a letter of dismissal, dated Friday, January 7, and
signed by Ball had already been prepared. However, it was
not actually given to Klepper until the following Monday
morning when he reported for work, and Ball handed him
the letter, along with his final check. In the letter Klepper
was notified that effective as of January 7 he was
dismissed:
for failure to comply with written and posted policies
and schedules, namely "taking a tractor that was
previously posted and scheduled for two other trips."
At the trial Frank Ball testified that at the time Klepper
left Iola on January 3, Tractor No. 18734 was scheduled
for a trip to Kansas City on Tuesday and for another to
California starting on Saturday. A truck schedule for the
week of January 2 was offered in evidence. Much of this
schedule was filled out on a typewriter. This included the
assignment of Klepper to New Orleans and Houston and
of various other drivers to other trips for that week. A
Kansas City trip was assigned to a driver named Blasen-
gym on Monday and there was another column set aside
for trips to Northern California. In addition to the
foregoing, all of which was typewritten, there appeared on
the exhibit various additional notations in a handwritten
script. Thus, after Blasengym's name there appeared in
pencil the number "18734," and in the column for
Northern California there appeared the names of drivers
Nance and Ross and a scheduled departure of 6 a.m. on
January 9 with Tractor No. 18734. Klepper testified that at
the time he examined the schedule prior to departure for
New Orleans there were no such notations written on the
sheet, and that it listed the trailer assigned to each driver,
but had no assignments of the tractors. Klepper's testimo-
ny was credible. Moreover, he further testified, credibly,
that until his telephone conversation with Ball on the
afternoon of January 3 he had never been told that Tractor
No. 18734 could be used only for California trips.
No. 18734 had a heavy duty engine and, from Frank
Ball's testimony it is clear that this tractor had been
secured principally for the cross-mountain hauling neces-
sary on trips to the West Coast. On the other hand, it is
likewise clear that it was used on other trips as well. From
Ball's testimony alone it would appear that on January 3,
No. 18734 was assigned to a Kansas City haul. Even more
significantly, Klepper testified that on three earlier occa-
sions he had used that same tractor for other trips, none of
which was to California, and no one had ever criticized
him. Frank Ball conceded that there were no written rules
on the use of No. 18734.
Although the Respondent contends that Klepper was
discharged for having caused it substantial inconvenience
by taking the wrong tractor to New Orleans, at the trial,
Frank Ball had considerable difficulty in attempting to
explain the alleged inconvenience which Klepper had
caused the Respondent. According to the schedule, which
Ball claimed had been prepared before Klepper's depar-
ture, the California trip for No. 18734 was not posted to
begin until 6 a.m. on Sunday, January 9. Since Klepper
returned on Friday, January 7, this allowed over 24 hours
for any necessary servicing of the tractor at the Ryder
station. From Ball's own admission when on the stand, it is
apparent that the Respondent's inconvenience resulted
from Ball's assumption that Klepper would never complete
the round trip to New Orleans and Houston before Friday
night. Thus, notwithstanding Klepper's promise, made to
Ball in their telephone conversation, that he would be back
by Friday, Ball testified that he concluded this would be
impossible since it had never been done before. Ball
testified that, in accordance with that assumption, early in
the week the shipping office proceeded to reschedule trips,
trucks, and drivers. Consequently, it was obviously
somewhat surprising to Ball when Klepper, in fact, did
return by Friday evening.
Notwithstanding Klepper's return, precisely as he had
promised, the Respondent had already prepared a dis-
charge notice. Jack Ball testified that the decision to
terminate this driver was reached on the morning of
January 7.
The Respondent's precipitate action in discharging,
without warning, an employee whom its vice president
described as the Company's best driver, was "not natu-
ral." 15 As found earlier herein, Klepper credibly testified
that at the time he examined the drivers' schedule there
was nothing to indicate that Tractor No. 18734 was
unavailable for general usage that week. On January 3,
when Klepper telephoned the home office and Frank Ball
found that Klepper had this tractor, he assured Klepper
that if he returned by Friday night "everything will be all
right." Nevertheless, the following Friday morning, the
Respondent made the decision to discharge this employee,
for the alleged inconvenience he had caused by tak-
ing Tractor No. 18734. Within the next 24 hours the
Respondent terminated Adam Bluma, another driver, as
has been found earlier herein, for discriminatory reasons,
and on February 6, when Frank Ball had a conversation
with Paul Nance in which the Union was discussed, Ball
commented that "two of the union instigators [are] no
longer with us." In view of the foregoing findings, it is the
conclusion of the Trial Examiner that the reason offered
for the termination of Klepper was a pretext and that the
real motive for his discharge was that he had signed a
union card only a few days earlier. N.L.R.B. v. General
Industries Electronics Company, 401 F.2d 297, 301 (C.A. 8),
and cases cited supra.
C. The Alleged Violations of Section 8(a)(1);
Findings and Conclusions in Connection Therewith
As found earlier herein, in the conversation about the
union campaign between employees O'Mara and Frank
Ball on January 2, the Respondent's vice president, after
reminding O'Mara that the preceding year his concerted
activities had resulted in his discharge, asked the employee
15 Cf, E Anthony & Sons v N L R B, 163 F 2d 22, 26 (C A D C.), cert summarily, without preliminary warning, admonition or opportunity to
denied 332 U S 773, where the court there said, in sustaining the Board's change the act or practice complained of Such action on the part of an
finding of a discriminatory termination "these employees had been long- employer is not natural "
time, responsible and faithful employees. All were discharged
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. didn't you learn your lesson then?" This was an
obvious threat that union activities could lead to O'Mara's
dismissal for a second time. As such it constituted
interference, restraint, and coercion within the meaning of
Section 8(a)(1) of the Act. It was also a violation of that
section of the Act, for Ball, during that same conversation,
to question O'Mara as to whether his coworker Bluma was
the "instigator" of the Teamsters campaign, and to close
the conversation with the declaration that his brother, Jack
Ball, the Respondent's president ". . . would never see a
union, he would sell ... out first." 16
On January 31, Jack Ball questioned employee Paul
Nance as to his attitude toward the Union and, after the
employee conceded that he signed an authorization card,
the Respondent's president told him that the Company
could do better for the employees without a labor
organization representing them. In the light of the
Respondent's unlawful discharges of Bluma and Klepper
earlier in the month, Ball's interrogation of Nance was
coercive, and a violation of Section 8(a)(1). Similarly, it
was a violation of that section for Ball to offer the
employee an implied promise of benefit, as he did in this
conversation, by suggesting that the Company would do
better for the drivers without a union.
On February 6, in a conversation with employee Nance,
during which the Union was discussed, Vice President Ball
intimated that the Respondent might resume using a
common carrier, which he named, for its shipments and
deliveries. Since such a move would eliminate the need for
the Respondent's trucks and its corps of drivers , Ball's
statement was tantamount to a threat to close the business
rather than deal with the Union and, as such, was coercive
within the meaning of Section 8(a)(1).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
Adam J. Bluma and Clifford N. Klepper, thereby discour-
aging membership in the Union, the Respondent has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
16 Frank Ball's statement was an obvious threat to close the business in
the event of unionization It was not a permissible "prediction as to the
precise effects he beheve[d ) unionization [would I have on [the I Company "
N L R B v Gissel Packing Co, 395 U S 575, 618.
17 There was testimony that, by letter dated March 31, 1972, the
Employer offered Klepper reinstatement, with a request that he respond by
noon of the following day This letter was not submitted in evidence
Consequently, it is not clear whether the letter constituted a valid and
unconditional offer of reinstatement that would terminate the Employer's
backpay obligation In any event, at the time of the hearing on April 6,
1972, Klepper had not been reinstated Left unanswered was the question,
inter aha, as to whether the employee was given a reasonable opportunity to
conclude any interim employment that he had secured The Board has held
that where a discriminatee is employed elsewhere at the time of a
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , the Trial Examiner will
recommend that the Respondent be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminatonly
terminated Adam J. Bluma and Clifford N. Klepper, the
Trial Examiner will recommend that the Respondent be
ordered to offer both of these employees immediate and
full reinstatement without prejudice to their seniority or
other rights and privileges , and make them whole for any
loss of earnings they may have suffered from the time of
their discharge to the date of the Respondent's offer of
reinstatement . 17 The backpay for the foregoing employees
shall be computed in accordance with the formula
approved in F. W. Woolworth Company, 90 NLRB 289,
with interest thereon computed in the manner and amount
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716,
717-721. It will also be recommended that the said
Respondent be required to preserve and make available to
the Board , or its agents, on request , payroll and other
records to facilitate the computation of backpay due.
Since "a discriminatory discharge of an employee .. .
goes to the very heart of the Act" (N.LR.B. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (C .A. 4), it will be recommend-
ed that the Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, the
Trial Examiner hereby issues the following recommend-
ed: 18
ORDER
Respondent, Quality Packaging Products , Inc., its
officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against any
employee because of activity on behalf of, or membership
in, General Drivers and Helpers Local No. 823 affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization.
(b) Interrogating any employee concerning that individu-
reinstatement offer, the offer should accord the employee the right to give
his new employer reasonable notice , up to 2 weeks, before returning to work
for his former employer Block-Southland Sportswear, 170 NLRB 976,
981-982, enfd. 420 F.2d 1296 (C.A D C.), Thermoid Company, 90 NLRB
614, 616 But see * N L R B v Betts Baking Company, 428 F .2d 156. 158-159
(C A. 10) Under the circumstances, this matter may be left for the
compliance stage of this proceeding
is In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
QUALITY PACKAGING PRODUCTS , INC. 1091
al's union activity, or that of other employees, in a manner
constituting a violation of Section 8(a)(1) of the Act.
(c) Threatening its employees with loss of jobs or closing
of the plant if a majority become members of, or assist, a
labor organization.
(d) 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 organiza-
tion, to bargain collectively through representatives of their
own choosing, or engage in concerted activities for the
purpose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Adam J. Bluma and Clifford N. Klepper
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges and make them whole in the manner
set forth in the section of this decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary, or appropriate, to analyze the amount of
backpay due.
(c) Notify immediately the above-named individuals, if
they are presently serving in the Armed Forces of the
United States of their right to full reinstatement upon
application after discharge from the Armed Forces, in
accordance with the Selective Service and the Universal
Military Training and Service Act.
(d) Post at its plant in Iola, Kansas, copies of the
attached notice marked "Appendix." 19 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
authorized representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
mg all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this decision,
what steps the Respondent has taken to comply herewith 20
19 In the event that the Board 's Order is enforced by a Judgment of a 20 In the event that this recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read:
Order of the National Labor Relations Board" shall read "Posted Pursuant "Notify the Regional Director for Region 17, in writing , within 20 days
to a Judgment of the United States Court of Appeals Enforcing an Order of from the receipt of this Order , what steps the Respondent has taken to
the National Labor Relations Board." comply herewith"