Rock City Paper Box Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1945

64 N.L.R.B. 1527 (N.L.R.B. 1945)

In the Matter of ROCK CITY PAPER Box CODIPANY, INC. and NASHVILLE
PAPER PRODUCTS AND SPECIALTY WORKERS UNION No. 513, SUBORDI-
NATE TO INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS UNION
OF N. A., A. F. OF L.
Case No. 10-C-16414.Decided December 27, 1945
DECISION
AND
ORDER
On March 20, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled 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 out in the copy of the Intermediate Report
attached hereto. Thereafter, on February 3, 1945, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
Oral argument before the Board It Washington, D. C., was not
requested and none was had.
The Board has considered the rulings made by the Trial Examiner
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 respondent's exceptions and briefs, including its
brief filed with the Trial Examiner, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the modifications set forth hereinafter.
1. The Trial Examiner found that by acts and statements of the
respondent, more fully set forth in the Intermediate Report, including
its unilateral action in effecting a wage increase, the respondent inter-
fered with, restrained, and coerced the employees in the exercise of
rights guaranteed in Section 7 of the Act in violation of Section 8 (1)
thereof. We agree with such finding of the Trial Examiner save as
his finding is based on the respondent's conduct in effecting the wage
increase. In view of our agreement with the Trial Examiner, as set
forth, we find it unnecessary to determine whether the respondent's
conduct in effecting the wage increase violated Section 8 (1) of the
Act. We find that the respondent violated Section 8 (1) of the Act
by the acts and statements of the respondent, other than its conduct
in effecting the wage increase, set forth in the Intermediate Report.
64 N. L R B, No. 250.
1527
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. At the hearing before the Trial Examiner, counsel for the Board
and the respondent stipulated that no adverse inference should be
drawn from the fact that the respondent's general manager, A. W.
Saxon, who became ill during the hearing, failed to testify. In view
of this stipulation, we do not rely on Saxo'n's failure to testify in
making any of our findings herein.
3. The Trial Examiner rejected the respondent's contention that the
employees in its folding department and in its set-up department sep-
arately constitute an appropriate unit and that the two departments,
contrary to the allegation in the complaint, do not together constitute
an appropriate unit. In support of its contention, the respondent
relies, as the record establishes, upon the following factors :
(a) All employees in the folding department are paid at an
hourly rate. The set-up department is on a piece-work rate
generally ;
(b) The two processes, folding and set-up, are conducted in in-
dependent units, operating on separate floors, with separate pro-
duction and pay-roll records;
(c) In the period of the National Recovery Act, set-up and fold-
ing operations were classed as separate industries, separate rec-
ords were required, and different price records were ordered;
(d) This separateness is still recognized in that there are sep-
arate national trade associations and the respondent belongs to
both, and
(e) Originally, separate schedules of minimum wages were
established by the Department of Labor, although the rates have
now been equalized.'
However, the record also establishes, and we find
(a) that the respondent's entire production and labor policy is
under the unified direction and control of General Manager Saxon
and Superintendent Richardson;
(b) that the respondent exaggerated the differences in the skills
required in the two departments. While such skills are somewhat
different, they are not sufficiently different to preclude ready trans-
fer of employees from one department to the other. The vast
majority of the employees receive the minimum rate of 40 cents
an hour. New employees, with no experience, start at that rate ;
and
1 The respondent also sought to show that different skills are required in each department
and that employees cannot readily change from machines in one department to the other.
As hereinafter found, the record does not support such claim insofar as it asserts that the
skills required in the two departments are so different as to preclude transfer of employees
from one department to another on a practical basis
ROCK CITY PAPER BOX COMPANY, INC. 1529
(c) that the history of bargaining in this industry indicates the
appropriateness of a single unit.2
Under the circumstance, we find, in accordance with established prece-
dent, as did the Trial Examiner, that all the respondent's employees
comprising those in its set-up and folding box departments, exclusive
of clerical and supervisory employees, constitute an appropriate
bargaining Unit .3
THE REMEDY
Having found that the respondent has independently violated Sec-
tion 8 (1) of the Act and also Section 8 (5) thereof, we must order the
respondent, pursuant to the mandate of Section 10 (c), to cease and
desist therefrom. The respondent's whole course of conduct discloses
a purpose to defeat self-organization and its objects among its em-
ployees. As we have found above, the respondent has, since September
1944, interfered with, restrained, and coerced its employees in the
exercise of their self-organizational rights, by various acts and
statements, including its unlawful refusal to bargain with the Union.
Because of the respondent's unlawful conduct and its underlying pur-
pose, we are convinced that the unfair labor practices found are per-
suasively related to the other unfair labor practices proscribed and
that danger of their commission in the future is to be anticipated from
the respondent's conduct in the past 4 The preventive purpose of the
Act will be thwarted unless our order is coextensive with the threat.
In order, therefore, to snake more effective the interdependent guar-
antees of Section 7, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens and obstructs
commerce and thus effectuates the policies of the Act, we shall order
the respondent to cease and desist from in any manner infringing upon
the rights guaranteed in Section 7 of the Act.
As recommended in the Intermediate Report, we shall also order the
respondent to take certain affirmative action designed to effectuate the
policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
2 George O. Baker, general representative of the Union, credibly testified without contra-
diction that in his experience in organizing plants in this industry a single unit was gen-
erally used, even when there were more than to departments in a plant He cited, as
examples, one plant with four separate departments, folding, corrugated, fiber, and board,
located in three separate buildings ; another plant with three departments, set-up, folding
and corrugated ; and lastly ; a plant with three departments, folding, tablet, and milk
bottle cap.
8 Matter of Acme Paper Box Co , Inc, 20 N. L It. B. 146; Matter of Lengsield Brothers,
Inc., 38 N. L. It. B. 951.
1 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
1530 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Board hereby orders that the respondent, Rock City Paper Box Com-
pany, Inc.; its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner interfering with, restraining or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Nashville Paper Products and
Specialty Workers Union No. 513, Subordinate to International Print-
ing Pressmen and Assistants Union of N. A., A. F. of L., or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act;
(b) Refusing to bargain collectively with Nashville Paper Products
and Specialty Workers Union No. 513, Subordinate to International
Printing Pressmen and Assistants Union of N. A., A. F. of L., as
the exclusive representative of all its employees at its Nashville plant,
excluding clerical and supervisory employees, in respect to rates of pay,
wages, hours, or other conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Upon request, bargain collectively with Nashville Paper Prod-
ucts and Specialty Workers Union No. 513, Subordinate to Interna-
tional Printing Pressmen and Assistants Union of N. A., A. F. of L.,
as the exclusive representative of all its employees at its Nashville
plant, excluding clerical and supervisory employees, in respect to rates
of pay, wages, hours, or other conditions of employment;
(b) Post at its plant at Nashville, Tennessee, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A." 5
Copies of said notice, to be furnished by the Regional Director of the
Tenth Region, shall, after being duly signed by the respondent's rep-
resentative, be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced or
covered by any other material;
(c) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AIR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
5 Said notice, however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "Recommendations of a Trial Examiner" and substituting in lieu
thereof the words "A Decision and Order "
ROCK CITY PAPER BOX COMPANY,- INC.
IN'T'ERMEDIATE REPORT
1531
Messrs. Da-9i M. Byrd and Thomas T. Purdons, for the Board
Mr. Cecil S'irns , of Nashville, Tenn., for the respondent
Mi. Geoigo O. Baker, of Atlanta, Ga. and iii F Al. Gobluudl, of Nashville,
Tenn, for the Union
S'rviua ENT OF THE CAST
Upon an amended charge duly filed by Nashville Paper Ptoduets and Specialty
Workers Union No. 513, Subordinate to International Printing Pressmen and
Assistants Union of N. A, A. F of L, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Director for
the Tenth Region (Atlanta, Geoigia), issued its complaint, dated January 3, 1945,
against Rock City Paper Box Company, Inc., Nashville, Tennessee, herein called
the respondent, alleging that the respondent had engaged in and was engaging
in lmfaii labor practices within the meaning of Section 8 (1) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein
called the Act. Copies of the complaint together with notice of hearing thereon,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) from on or about October 1, 1944, has urged, persuaded,
threatened, and warned its employees to refrain from joining or remaining,
members of the Union, and has questioned employees about their membership
in and activity on behalf of the Union; (2) on or about November 7. 1944, and
at all times thereafter, respondent refused and continues to refuse to bargain
collectively with the Union as the exclusive representative of the employees in
an appropriate unit; and (3) by such acts, respondent has interfered with,
restrained, and coerced its employees in the exercise of the lights guaranteed
in Section 7 of the Act.
Prior to the hearing, the respondent filed its answer, dated January 17, 1945,
admitting the allegations of the complaint with respect to the nature of its
business and denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Nashville , Tennessee , on January
18 and 19, 1945, before the undersigned, Sidney L. Feller, the Trial Examiner
duly designated by the Chief Trial Examiner . The Board and the respondent
were represented by counsel, and the Union by representatives. All parties
participated in the hearing. Full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was afforded
all parties. Respondent rested at the close of the Board's case except for a
statement by its counsel received as evidence . At the close of the hearing, counsel
for respondent moved to exclude and strike from the record all testimony con-
cerning a conference between the parties on November 15, 1944, and certain
telephone calls resulting therefrom. This motion is treated hereinafter. There-
after counsel for the respondent and the Board argued orally before the under-
signed.. Both counsel filed briefs.
Upon the entire record in the case,' and from his observation of the witnesses,
the undersigned makes the following
1 At the conclusion of the evidcnLe, counsel for the Bond moved to amend the complaint
and the answer to conform to the proof The other parties stated that they had no objec-
tion to the granting of the motion By error the Trial Examiner's ruling granting said
mol,on floe,, not appear in the transcript of the testimony The motion 1c allowed
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Tennessee corporation, having its principal office and place
of business at Nashville, Tennessee. It is engaged in the manufacture, sale, and
distribution of set-up and folding paper boxes and related products?
Respondent, during the 11 months' period ending November 11, 1944, pur-
chased raw materials costing approximately $150,000, of which approximately
82 percent was shipped to its plant from outside Tennessee. During the same
period it sold set-up boxes valued at approximately $90,000 and folding boxes
valued at approximately $135,000 Approximately 43 percent of respondent's
total sales as delivered to points outside Tennessee Since Novenib. r 11, 1944,
there has been no substantial change in respondent's business
The undersigned finds that respondent is engaged in commerce within the
inearling of the Act.
H. THE ORGANIZATION INVOLVED
Nashville Paper Products and Specialty Workers Union No. 513, Subordinate
to International Printing Pressmen and Assistants Union of N. A., affiliated
with the American Federation of Labor, is a labor organization admitting to
membership employees of the respondent -
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Organizational activity began at respondent's plant in the late summer of
1944. Some union cards were signed in August, but the Union secured most
of its adherents in September and October.
All operations at respondent's plant were and are under the control and direc-
tion of General Manager A. W. Saxon and his assistant, Superintendent W. L.
Richardson. The Board introduced the testimony of a group of employees con-
cerning conversations they had had with Saxon and Richardson concerning the
Union and union activities. Grace Miller testified that shortly after union
organization started at the plant, Richardson asked her whether she had a union
card. She told him that she did not have one. Dicie Moore stated that in
September 1944, Richardson asked her whether she had joined the Union. He
addressed a similar inquiry to Virgie Hamilton in the early part of October.
The day before this hearing commenced he asked Virgie Hamilton and Dorothy
Aldred whether they knew or had heard anything about the Union. Both replied'
in the negative.
Richardson attended the hearing. He did not take the stand to deny the state-
ments attributed to him Cross-examination of the witnesses was generally
uirected to eliciting statements from the witnesses that they were not intimidated
by Richardson's inquiries The undersigned credits the statements of the wit-
nesses and finds that Superintendent Richardson questioned employees con-
cerning their union' affiliation and union activities and that his activity began
at the commencement of organizational efforts and continued until the hearing.
Daffo Shivers testified that General Manager Saxon, sometime in October
1944, asked her and another worker whether anyone had been around to see them
about signing anything. He told them not to sign anything until they saw him
2 Set-up boxes are of the rigid type and are ready for immediate use, e. g., shoe, pencil,
hosiery, and gift boxes Folding boxes must be folded befoie use, e. g, suit and cake boxes,
folding cartons, and fuse boxes.
ROCK CITY PAPER BOX COMPANY, INC. 1533
about it. The testimony indicates that Saxon was referring to union cards and
that the workers so understood him. Carrie Hann testified that she joined the
Union on August 23. A short time thereafter , while she was working at her
machine, Saxon told her that he had heard that she was the ringleader of the
Union When she denied this, Saxon replied that he did not think she "would
do [him] that way " She admitted on cross-examination that she had pre-
viously asked Saxon's advice about the Union and the possibility of there being
an initiation fee if she joined later instead of joining immediately when there
was no such fee. At that time, Saxon told her that he did not think the Union
would succeed because organizational efforts in the past had failed.
Saxon also had a conversation concerning the Union with Willie Huffaker.
Huffaker stated that Saxon told him that the employees were making a mistake
in joining the Union because if the Union were successful it would demand wage
increases which the War Labor Board would not approve . Then it would call
a strike and everyone would lose during the ensuing shutdown . Huffaker fixed
the date of this talk in October.
Saxon heard the testimony of witnesses Shivers, Hann , and Huffaker. How-
ever, at the close of the Board's case , counsel for respondent stated that Saxon
had become ill. No continuance was requested . There is no evidence whether
Saxon would or would not have testified if his health had permitted' In any
event, the undersigned from his observation of the witnesses and the evidence
as a whole , credits their testimony and finds that Saxon did discuss with them
the Union and their affiliation with it.
Huffaker also testified , without contradiction , that in September 1944, Richard-
son approached him and told him that three employees were going to see a
lawyer in order to take steps to secure the return of union cards they had
signed and that Huffaker could go with them if he wished to do likewise.
Huffaker refused to do so. Richardson responded that Huffaker had a right to
do that.
A week before this hearing Richardson told Huffaker not to sign up any more
union cards at the plant , even on his own free time , stating , as Huffaker testified,
that "he didn't think it looked right to get them inside the plant ." Huffaker
admitted that he had signed some cards during working hours. However, the
effect of Richardson 's ruling was not to penalize Huffaker for any misconduct, but
to seriously interfere with the self -organization of respondent ' s employees and
the right of employees to participate in organizational activity on their free time.
Richardson 's action was an unlawful interference with that right .' The inter-
ference was particularly serious in this case since Huffaker was an old employee
( 30 years with respondent ) and a leader in the Union.
In the fall of 1i 44, respondent applied to the War Labor Board for permission
to effect general wage increases . Guy E Byassee , sales manager , testified that
lie began compiling data for the application on September 6. The application was
typed on September 20 and was filed October 10. Approval was obtained Decem-
ber 5, 1944, and the respondent began to put increases into effect as soon as ap-
proval was obtained . The testimony of Byassee indicates that approximately
one-third of respondent ' s employees had received increases as of the date of this
hearing . He also testified that respondent had made a similar application for
permission to effect wage increases in May or June 1943 . Approval was obtained
in September or October 1943, and increases were granted. There were two
or three other supplementary requests filed subsequently.
3It was stipulated that no inference adverse to respondent would be drawn from Saxon's,
failure to testify
4 Matter of Peyton Packing Company, Inc. 49 N. L. R B 828, enforced 142 F. (2d) 1009
(C. C. A. 5), cert. den 65 S. Ct 66
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's most recent application for permission to grant wage increases
was made at a time when the organizational campaign was at its height. The
undersigned is convinced from the evidence in this case that the respondent did
not want the Union to gain a foothold in its plant and chose to file its applica-
tion at the time it did in an effort to forestall union organization.
This conclusion as to the purpose of the wage increase application is supported
by a study of the contents of a statement that Richardson read to all the em-
ployees whom he summoned to a special gathering on respondent's premises be
tween November 3 and 13, 1944. It is as follows :
We have called you together to express our views in regard to a matter
that has been presented to many of you individually; the question of union-
,izing our plant.
In justice to ourselves as well as you we should state our policy so that
you can have both sides of the facts, then we know you are capable of making
your own decisions As American citizens you have a perfect right to join
any organization you see fit, whether it be Labor, Church of Fraternal, and
far be it from us to attempt to deprive you of that right Having faith in
your ability to use your own mind all we do is to ask you to consider the
policy of the concern you rue working for, as follows.
This concern is 46 years old and has been under the same management for
43 years. During this time there has been a great many people worked here
and we have yet to hear of any case of mistreatment of an employee.
Owing to war conditions we have a great many employees who have not
been with us long enough to properly value the treatment our employees get,
but there are quite a few who have been with us over a period of years who
know they have never been neglected in time of trouble. We believe, too,
that our employees have had as steady work during times of depression as
any concern in Nashville as we have never taken advantage of laying them off
when we could possibly avoid it. i\Iany of you who have only been here a
short while know you have been kept on the job when your production for
a few days was not really needed; that was cooperation on our part
We have tried to run our factory as one big family feeling that the interest
of the employee was out interest We feel that the Dian who creates a job
for you is entitled to your cooperation, for unless there is cooperation by both
the man who creates the job and the Dian who does the job neither can suc-
ceed. We know our employees realize this fact, and we believe that in time of
trouble next to your doctor your employer is your best, friend who can and will
do more for you than anyone else
Government regulation meant to keep down inilal ion has tied our hands in
some respects by freezing our prices to our customers at 1041 levels and
freezing wages. We have been, in many cases, forced to pay from 15 to 50%
niore for material; and notwithstanding the freeze on wages did get through
permission to better some of the wages We have asked the Labor Board per-
mission to submit a new wage scale, and an incentive clan in the way of a
bonus for those who rue on their jobs every day torn period of time We have
asked our Association to help us get this plan through and have reason to
believe it will be granted at least to a substantial extent
In conclusion we want you to know yoni job does not depend on whether
you join a union or do not join. As long as you do your duty no one has a
right to discharge you Bear these facts in nand :
1. You have a maid of your own and mile capable of using it
2 Your employer is your best friend it von will let Lim be
ROCK CITY PAPER BOX COMPANY, INC. 1535
3 Your employer is closer to you than anyone else because your interests
are his, and his interests are yours because your livelihood is there.
4. If you have a grievance go straight to your employer who can correct it.
5. You can help your employer make things better by making suggestions.
G. Whether or not you join the union has nothing to do with keeping your
job You have the right to join if you want to, and voa also have the right
not to join Your decision either for or against the union will not'have the
slightest effect on keeping your job
A study of the statement indicates that. in the main, it is an appeal for re-
tention of the existing system of bargaining on an individual basis. While em-
ployees were told that they were free to join it union if they wished, that was
clearly not the underlying purpose of the meeting. At least two employees,
FIuffaker and Gargus, received the impression that iespondeut did not want them
to join a union " Moreover, Riclmrdson stressed, as evidenc? of respondent's con-
cern for the welfare of the employees, its recent new wage scale submitted to the
War Labor Board The undersigned finds and concludes from a study of the
wage application, Richardson's statement to the employees, and other relevant
evidence. that respondent endeavored to effect wage increases unilaterally-in an
effort to hinder and defeat the self-organization of its employees in violation of
the Act
The undersigned finds and concludes that by the questioning of employees con-
cerning the Union and union activities, by the prohibition of FIuffaker's organiza-
tional activity on his own free time, by its unilateral action in effecting a wage
increase, by Richardson's statement to the employees, and by the totality of such
action, respondent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act
B The refusal to bargain collectively
1. The appropriate unit
Respondent is engaged in the manufacture , sale , and distribution of set-up
and folding paper boxes and related products Manufacturing operations are
conducted at a plant in Nashville, Tennessee The plant consists of two
buildings of two floors each and these buildings are connected by a central
delivery chute. The set-up department is located on the upper floors, the
folding department on the lower floors There is a common storage room
for both departments and one clerical unit, although records of the depart-
ments are kept separate . There is a common printing press department which
prints wrappers , but approximately 95% of that work is for the Folding
Department.
The Board contends that `All employees of respondent employed at its Nash-
ville plant , exclusive of clerical and supervisory employees , constitute a unit
appropriate for the purpose of collective bargaining . . .' Respondent con-
tends that a single unit is inappropriate and that the Set-up Department and
the Folding Department each constitute a separate and appropriate unit.
In support of its position respondent pointed to the following factors :
(a) All employees in the Folding Department are paid at an hourly
rate The Set-up Department is on a piece-work rate generally.
(b) The two processes , folding and set-up, are conducted in independent
units, operating on separate floors , with separate production and pay-roll
records.
Gargus did not hear the statement in its entirety
N 7 R B v Croscn Can Company, 138 F. (2d) 263 (C C A 8), cert den 321 U S 769
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Different skills are required and employees cannot readily change
from one group of machines to the other.
(d) In the period of the National Recovery Act, set-up and folding
operations were classed as separate industries, separate records were re-
quired, and different price records were ordered.
(e) This separateness is still recognized in that there are separate na-
tional trade associations and respondent belongs to both.
(f) Originally, separate schedules of minimum wages were established
by the Department of Labor, although the rates have now been equalized.
Counsel for the Board relied on the following points in support of the con-
tention for a single unit:
(a) All production and labor policy is under the unified direction and
control of General Manager Saxon and Superintendent Richardson.
(b) Respondent had exaggerated the differences in the skills required
in the two departments. The vast majority of the employees received the
minimum rate of 40 cents an hour. New employees, with no experience,
start at that rate.
(c) The history of bargaining in this industry indicates the appropriate-
ness of a single unit. George O. Baker, General Representative of the
Union testified that in his experience in organizing plants in this industry
a single unit was generally used, even when there were more than two
departments in a plant. He cited, as examples, one plant with four sepa-
rate departments, Folding, Corrugated, Fiber, and Board, located in three
separate buildings; another plant with three departments. Set-up, Folding
and Corrugated ; and lastly, a plant with three departments, Folding, Tablet,
and Milk Bottle Cap.
The Board, in its brief, cited many cases where a single unit was either
expressly or tacitly recognized by the Board. Of the cases cited, Matter of Acme
Paper Box Co., Inc.' and Hatter of Lengsfield Brothers, Ine.e are especially in
point.
The undersigned finds that a single unit, as sought by the Board, is an appro-
priate unit for collective bargaining in respondent's plant. Respondent has
stressed factors relating primarily to its marketing and pricing problems. These
are clearly outweighed by other considerations. Approximately 115 persons are
employed in the production departments ; 80 in the Folding Department and
35 in the Set-up Department. The vast majority of these employees receive
the same salary. They are supervised by the same staff. Richardson's state-
ment to the employees assembled as a single unit, together with his reference
in the statement to "one big family", supports the conclusion herein reached
that a single unit is appropriate.' The employees themselves recognized their
similarity of interests by uniting in a single group. Board precedent and the
practice in the industry also favors recognition of a single unit.
Counsel for respondent claimed that it would be inappropiiate to include piece-
rate and hourly-rate employees in one unit, stating that their interests were
diverse and that employees in one group could not adequately represent the
interests of the other group in bargaining negotiations. These purported diffi-
culties in representation have been exaggerated.
The undersigned finds that all the employees of respondent employed at
the Nashville plant of the respondent, exclusive of clerical and supervisory
employees, at all times material herein constituted and they now constitute
7 20 N L R B 146
8 38 N L R B 951
ROCK CITY PAPER BOX COMPANY, INC. 1537
a unit appropriate for the purposes of collective bargaining with respect to rates
of pay, wages, hours, or other conditions of employment, and that said unit
insures to employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuates the policies
of the Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges that on or about November 7, 1944, and at all times
thereafter, respondent refused to bargain collectively with the Union as the
exclusive representative of its employees in the appropriate unit.
In support of its contention that the Union represented a majority of the
employees, the Board offered in evidence signed union cards. These cards,
whose validity was not challenged, indicate that 57 employees whose names
appeared on respondent's pay-roll of November 8 had signed these cards. On
that date there were 106 in the appropriate unit.
The undersigned finds that on and at all times after November 7, 1944, the
Union was the duly designated representative of a majority of the employees
in the aforesaid appropriate unit, and that by virtue of Section 9 (a) of the
Act, the Union was at all times material herein and is the exclusive representative
of all the employees in such unit for the purpose of collective bargaining in respect
to rates of pay, wages, hours, or other conditions of employment.
3 The refusal to bargain
F. M. Gebhardt, local president and representative of the Union, testified
that he first attempted to secure recognition of the Union by respondent on or
about November 1, 1944. He then had an interview with General Manager Saxon.
Gebhardt told Saxon that he was organizing the plant and thought he repre-
sented a majority. He asked Saxon what he, Saxon, was going to do. Saxon
asked for a proposal. Gebhardt replied that he did not have one with him, but
that he could get one. The conference then ended.
Gebhardt next saw Saxon on the following Monday, November 6.9 At this con-
ference, Gebhardt demanded to know whether respondent would bargain with
the Union or consent to an election Saxon jumped up, said that was an unfair
question, and left the office without explanation. Gebhardt left a minute or
two later.
Saxon was physically unable to be present at the hearing at the conclusion
of the Board's case. The record, therefore, does not contain any testimony from
him shedding any light on the reasons for his precipitate action.
Thereafter, on November 7, the Union filed a petition for certification of rep-
resentatives. The petition alleged that the appropriate bargaining unit included
"All employees Except For clerical employees and supervisors with the au-
thority to hire and discharge." A field examiner employed by the Board com-
municated with the Union and the respondent and arranged for a conference.
This conference was held on November 15 at the offices of the attorney for the
respondent. The conference was attended by the field examiner, George O. Baker,
the General Representative of the Union, Gebhardt, and Cecil Sims, attorney for
the respondent. Both Baker and Sims stated, at the hearing, that they under-
stood that the purpose of the meeting was to ascertain whether there were any
disagreements between the Union and the respondent and, if possible, to re-
solve those differences.
' In his testimony, Gebhaidt incorrectly stated the date as November 7
670417-46-vol 64-98
1538 DECISIONS OF NA`rlOI\TAL LABOR RELATIONS BOARD
Baker has given a clear and uncontradicted account of what occurred at the
meeting. Sims asked Baker whether he represented a majority of the employees
at the plant. Baker replied that be (lid represent a majority of the production
and maintenance employees. No question was raised as to the appiopriateness
of a single unit. k check of the signed union cards was then made, Sims check-
ing the authenticity of the signatures Baker testified that the count revealed 66
union adherents out of a total of 102 in the unit Sims stated that he was satis-
fied that the Union had a majority and would communicate that fact to re-
spondent. He asked Baker to telephone him later that day The conference was
then closed -
Baker telephoned Sims at 3 p. ni Sims stated that he was still in conference
with respondent's officials and requested Baker to telephone later Sinis further
said that the question of the appropriate unit had been raised, that respondent
claimed that two units, one for each department.. were appropriate. Respondent
also questioned the Union's representation of a majority in each unit Baker
replied that one unit was appropriate, citing the Union's experience in other bar-
gaining negotiations However, he agreed to recheck his cards dud telephone later.
Baker again telephoned Sims about 4 p. m. He told Sims that his check in-
dicated that the Union represented a majority in each department. Baker quoted
Sims as replying that respondent would not bargain with the Union or agree
to a consent election. Sims did not t.dce the stand However, lie made a state-
mnent for the record concerning the conference and his subsequent telephone
conversations with Baker. It was stipulated that this statement and Sims'
responses to questions by counsel for the Board should be considered as evidence.
In his statement, Sims maintained that he told Baker that respondent insisted
on two units while Baker reiterated his previous stand that one unit was appro-
priate, and that this deadlock caused the breaking off of negotiations without a
check of Baker's tally The undeisigned finds that Sims' version is substantially
correct. Baker then ended the conversation by stating that he would decide on
his next step
On November 16, 1944, the Union requested withdrawal of its petition for
certification of representatives The request was approved on November 17, and
the petition was withdrawn without prejudice. The Union then filed a charge
which formed the basis for the present proceeding
On these facts, the Board contended that there had been a refusal to bargain
within the meaning of the Act Respondent contended that there had not been
a refusal to bargain, but a disagreement over the appropriate unit and that
respondent had advanced its contention in good faith. Respondent also con-
tended, in its answer, "that the union was not legally entitled to demand either
recognition or collective bargaining while its petition for election was still pend-
ing and undetermined and avers further that any failure on respondent's part to
recognize the Union as an exclusive bargaining agency while said petition was
pending was not a violation of any provision of said Act." In addition, counsel
for respondent, at the close of the hearing, 'made a motion to strike testimony
concerning the conference, ni which lie participated on behalf of respondent, and
his two subsequent telephone conversations with Baker, on the ground that they
concerned the settlement of litigation and should be excluded in analogy with
rules applicable to ordinary civil litigation
Respondent's good faith in raising the unit question can best be resolved by
consideration of respondent's complete labor relations activities Some of the
significant factors are:
1. The unfair labor practices of respondent which occurred before, during.
and aftei the conference between the parties. These practices were carried on
11 it lq uuuoi .npervisoi y oflicnals, but by General Manager Saxon and Superin-
ROCK CITY PAPER BOX COMPANY, INC. 1539
tendeq t Richardson, the very persons who formulated respondent's policy on
bargaining with the Union.
2. The negotiations between Saxon and Gebhardt. In their first conference,
Saxon asked Gebhardt for proposals, without raising any question as to the
Union's representation of a majority of the employees in an appropriate unit.
In their second conference, when Gebhardt pressed Saxon for a direct answer on
recognition of the Union, Saxon stated that that was an unfair question and
rushed out of the room. While these conferences were not extensive or complete,
the undersigned is convinced that Saxon made no effort to deal with Gebhardt
in good faith, but in fact tried to hinder and delay matters by a policy of evasion.
3. The raising of the issue of an appropriate unit after the conference. The
conference was arranged as a result of the petition filed by the Union in which the
alleged appropriate unit was set forth. Respondent had ample opportunity to
raise the issue with its attorney prior to the confeience, if it in good faith felt
there was any merit of it. Yet when the parties assembled, the only question
raised was as to the Union's representation of a majority in the unit set forth in
the petition. Only after a card check indicated that the Union had been designated
by a majority, was the issue raised.
The undersigned concludes that the question of the appropriateness 'of the
unit as set forth in the Union's petition was not raised in good faith, but was
part of respondent's program of evasion, delay, and unlaiNful conduct 10
The motion to exclude testimony as to the confeience between the parties
and the subsequent telephone conversations between Sinis and Baker is denied.
The conference was arranged by a representative of the Bo.n d as part of the
established procedure in investigating a petition for certification of representa-
tives." The chief purposes of such a meeting are to permit the Board agent
to obtain relevant information and asceitain the issues in disupte. It is not
equivalent to a settlement conference between private litigants in a civil action.
To refuse to admit evidence of the transactions at such a conference would
be wasteful and a disregaid of its purposes as envisaged by the Board.
Respondent's contention that the Union could not request recognition or
collective bargaining while its petition was pending and that respondent could
not commit a violation of Section 3 (5) while the petition was pending musts
be rejected. The pendency of a proceedng before the Board does not constitute
a license to an employer to refuse to carry out his obligation to bargain col-
lectively."
The undersigned finds that on or about November 15, 1944, and at all times
thereafter, the respondent refused to bargain collectively with the Union as
the exclusive representative of its employees in the aforesaid appropriate unit,
thereby inteilering with, restraining. and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
I1 THE El•1'ECT OF THE UNFAIR LABOR PRACTLCiisS UPON COMMERCE
The activities of the iespondent set forth in Section 111, above, occurring
in connection with the operations of the respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
10 N. L R B V. Federbush Co, Inc , 121 F. (2d) 954 (C C A 2)
Ninth Annual Report . National Labor Relations Renal, page 9
"N. L R. B. v . National Seal Corp., 127 F. (2d ) 776 (C C A 2). Hatter of Sheba Ann
Fl ocks. I've, 5 N. L R B 12, 16 Hatter of Ellis- Klatsclicr d Co, 40 N L R B 1037, 1052.
0
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
, Since it has been found that the respondent has engaged in certain unfair
labor practices affecting commerce, the undersigned will recommend that it
cease and desist therefrom and take certain affirmative action to effectuate
the policies of the Act.
It has been found that the respondent has refused to bargain collectively
with the Union as the exclusive representative of the employees in the afore-
said appropriate unit. It will therefore be recommended that respondent
upon request bargain collectively with the Union.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. Nashville Paper Products and Specialty Workers Union No. 513, Sub-
ordinate to International Printing Pressmen and Assistants Union of N. A,
affiliated with the American Federation of Labor, is a labor organization
tii ithin the meaning of Section 2 (5) of the Act
2 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 in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
3. All the respondent's employees at its Nashville plant, excluding clerical and
supervisory employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4. Nashville Paper Products and Specialty Workers Union No .513. Subordi-
nate to International Printing Pressmen and Assistants Union of N A, A. F.
of L, at all times material herein was, and now is, the exclusive representative
of all the employees in the aforesaid appropriate unit within the meaning of
Section 9 (a) of the Act
5. By refusing, on or about November 15, 1944, and at all times thereafter, to
bargain collectively with Nashville Paper Products and Specialty Workers Union
N'o. 513, Subordinate to International Printing Pressmen and Assistants Union of
N. A., A. F. of L, as the exclusive representative of the employees in the afore-
said appropriate unit, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act.
6 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the respondent,
Rock City Paper Box Company, Inc., its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form labor organizations , to join
or assist Nashville Paper Products and Specialty Workers Union No. 513, Sub-
oidinate to International Printing Pressmen and Assistants Union of N. A.,
A. F. of L , or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing and to engage in concerted activities for the-
0
ROCK CITY PAPER BOX COMPANY, INC. 1541
purpose of collective bargaining, or other mutual aid or protection as guaran-
teed in Section 7 of the Act ;
(b) Refusing to bargain collectively with Nashville Paper Products and Spe-
cialty Workers Union No 513, Subordinate to International Printing Pressmen
and Assistants Union of N. A., A. F. of L, as the exclusive representative of all
its employees at its Nashville plant, excluding clerical and supervisory employees,
in respect to rates of pay, wages, hours, and other conditions of employment.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Nashville Paper Products and
Specialty Workers Union No. 513, Subordinate to International Printing Press-
men and Assistants Union of N. A, A. F. of L, as the exclusive representative
of all its employees at its Nashville plant, excluding clerical and supervisory
employees, in respect to rates of pay, wages, hours, and other conditions of
employment;
(b) Post at its plant at Nashville, Tennessee, copies of notice attached to the
Intermediate Report herein, marked "Appendix A." Copies of said notice, to
be furnished by the Regional Director of the Tenth Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent to
Insure that said notices are not altered, defaced, or covered by any other
material;
(c) File with the Regional Director for the Tenth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notify said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondents to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations file with the Board, Rochambeau
Building, Washington, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or objec-
tions) as he relies upon, together with the original and four copies of a brief in
support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a
copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten ( 10) days from the date of the order transferring
the case to the Board.
SIDNEY L. FELLER,
Trial Examiner.
Dated March 20, 1945.
1542 DECISIONS OF NATIONAL LABOR RELATfONS BOARD
NLRB 582
(9-1-44)
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recounueudations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the polices of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Nashville Paper Products and Specialty
Workers Union No. 513, Subordinate to International Printing Pressmen and
Assistants Union of N. A, A. F. of L., 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 All our employees are free to become or
remain members of this union, or any other labor organization.
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached; embody
such understanding in a signed agreement. The bargaining unit is:
All employees at the Nashvlle plant, excluding clerical and supervisory
employees.
ROCK CITY PAPER Box COMPANY, INC,
BV -------------------- ------------
Representative Title
Dated-----------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.