San Diego Paper Box Co.

National Labor Relations Board - Board Decisions

Mar 12, 1969

174 N.L.R.B. 1118 (N.L.R.B. 1969)

1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Diego Paper Box Company and Teamsters
Local 542. Case 21-CA-7729
March 12, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS AND ZAGORIA
On September 13, 1968, Trial Examiner Herman
Marx issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision Thereafter, Respondent filed exceptions to
the Decision and a supporting brief, and the
Charging Party filed an answering brief to
Respondent's exceptions to the Trial Examiner's
Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings.' conclusions,' and recommendations of the
Trial Examinee
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, San Diego Paper
'These findings and conclusions are based , in part , upon credibility
determinations of the Trial Examiner , to which Respondent has excepted
After a careful review of the record, we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of all the
relevant evidence Accordingly , we find no basis for disturbing those
findings Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d
362 (C A 3)
'Respondent excepts to the Trial Examiner ' s finding that Pinkerton
stated (to employee McGrath ), on the day of the layoff, that there was at
least 2 days work available for the department , contending that Pinkerton,
according to McGrath upon whose testimony the finding is based , stated
only that there was at least 2 days work left for McGrath rather than the
entire department We find merit in Respondent ' s exception , since a
careful reading of McGrath ' s testimony indicates Pinkerton ' s statement
referred only to the amount of work available for McGrath However,
since the Trial Examiner ' s finding in his Decision that work was available
for the corrugated department on the day of the layoff otherwise finds
ample support in the record , the Trial Examiner ' s apparently inadvertent
error with respect to McGrath ' s testimony in no way affects our agreement
with his findings that work was available for the department on the day of
the layoff or his ultimate findings herein
Box Company, San Diego, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
The complaint alleges that an employer, San Diego
Paper Box Company (herein the Company or
Respondent), has violated Section 8(a)(3) of the National
Labor Relations Act (herein the Act)' by laying off Il
employees because they engaged in union or other
activities protected by the Act, and has, by such conduct,
and by interrogating employees concerning their union
activities, membership and aims, abridged rights
guaranteed employees by Section 7 of the Act, thereby
violating Section 8(a)(1) of the statute 2
The Respondent has filed an answer which, in
substance, denies the commission of the unfair labor
practices alleged in the complaint
A hearing on the issues has been held before me as duly
designated Trial Examiner The General Counsel, the
Charging Party, and the Respondent appeared through
respective counsel and were afforded a full opportunity to
adduce evidence, examine and cross-examine witnesses,
and submit oral argument and briefs '
Upon the entire record, my observation of the
demeanor of the witnesses, and having read and
considered the briefs' filed with me since the close of the
hearing, I make the following
FINDINGS OF FACT
I NATURE OF THE RESPONDENT'S BUSINESS,
JURISDICTION OF THE BOARD
The Respondent is a corporation and maintains and
operates two plants, both in California, one located in
Spring Valle} and the other some 17 miles distant in San
Diego The firm is engaged at both plants in the
manufacture of corrugated and other paper boxes and
cartons; and is, and has been at all material times, an
employer within the meaning of Section 2(2) of the Act
In the course and conduct of its business operations, the
Company annually ships products valued in excess of
$50,000 from its said plants directly to customers located
outside the State of California By reason of such
shipments, the Company is, and has been at all times
material to the issues, engaged in interstate commerce
within the meaning of Sections 2(6) and 2(7) of the Act
Accordingly, the National Labor Relations Board has
jurisdiction over the subject matter of this proceeding
129USC 151, et seq
'The complaint was issued on October 24, 1967, and is based upon a
charge filed with the National Labor Relations Board on August 31, 1967,
and an amendment thereof filed on October 19, 1967 Copies of the
charge, the amendment thereof , the complaint, and a notice of hearing
have been duly served upon all parties entitled thereto The case was heard
on March 19 and 20 , 1968, at San Diego , California
'Upon the unopposed motion of the Respondent , a document attached to
the motion and referred to therein as Job No 7C3171 is received in
evidence as part of Resp Exh 13 , upon the Respondent ' s representation
that it inadvertently omitted the document from that exhibit at the hearing
'The proposed findings and conclusions contained in the Respondent's
brief are adopted only to the extent that they are set forth in the findings
and conclusions that follow below, and are denied in all other respects
174 NLRB No. 165
i
SAN DIEGO PAPER BOX CO. 1119
11. THE LABOR ORGANIZATION INVOLVED
The Charging Party in this proceeding, identified in the
record only as Teamsters Local 542 (and referred to
herein as the Union), is, and has been at all material
times, a labor organization within the meaning of Section
2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company's principal office is located at its San
Diego establishment where it manufactures "folding" and
"rigid" paper boxes Its Spring Valley plant also produces
folding boxes, but, in addition, in a separate division
called the corrugated department, manufactures
corrugated shipping containers upon order of other
enterprises The issues in this proceeding center on the
corrugated department, which had a complement of 12
employees on August 23, 1967.
At the times material here, the corrugated department
employees worked under the immediate supervision of a
foreman, Elbert E Pinkerton, who was subject, in turn, to
direction by Paul E Butler, who had managerial functions
at the Spring Valley plant (and has since transferred to
the Company's sales department). The responsibility for
hiring and discharging employees is vested in the
Company's personnel director, Curtis Cooper. The firm's
operations are subject to overall supervision by its
president, Sidney Chapman At all times material to the
issues here, Chapman, Cooper, Butler and Pinkerton were
agents of the Company, and supervisors within the
meaning of Section 2(11) of the Act
On or about July 31, 1967,' a corrugated department
employee named Ray Dano spoke to a business
representative of the Union at its office, seeking
information as to steps to be taken to organize the Spring
Valley employees, and the upshot of the discussion was
that the business agent explained the use of printed card
forms which, upon appropriate completion and execution,
would have the effect of designating the Union as
bargaining representative of the signatories, and gave
Dano a quantity of the forms for distribution among the
employees. Dano signed such a card on the date of his
talk with the business agent
Thereafter, Dano and other corrugated department
employees distributed authorization forms among
employees at the Spring Valley plant, soliciting execution
of the cards The precise dates of these activities do not
appear, but, as the record establishes, without material
dispute, the organizational efforts that followed Dano's
talk with the business agent began early in August and
continued at least into the middle portion of the month
Executed authorization cards in evidence bear early
August dates, one being dated August 9, and during a
lunch period in mid-August various corrugated
department employees spread word among employees at
the Spring Valley plant that there would be a union
meeting that evening at a nearby tavern, soliciting their
attendance, and that they execute authorization forms
which were handed to them The meeting was held, and
was attended by a majority of the corrugated department
personnel, but only by two employees from other
departments In all, 14 Spring Valley employees signed
'Unless otherwise specified, all dates mentioned hereafter occurred in
1967
authorization cards. Eleven of the signatories were
employed in the corrugated department, constituting
almost its entire labor force 6
The management was aware in August, prior to the
layoff, that efforts were under way to organize the
employees Chapman testified that there was "obviously"
some union activity going on, stating, also, that one could
tell that from the "atmosphere" at the plant, and that a
number of employees who had received authorization
forms had turned them over to Cooper. Butler, in fact,
had some discussions with corrugated department
personnel about unionization On one such occasion, a
leadman in that department, James Doyle, told him that
he and others were "starting to organize again" (there had
been some organizational activity earlier in the year), and
Butler made remarks to the effect that he "didn't like the
Union " And one day in mid-August, having observed
Dano give another corrugated department employee some
authorization cards at the plant shortly after lunch, Butler
followed Dano to his work station and, without the
latter's permission, took possession of some blank
authorization forms, removing them from a shelf or table
where Dano kept personal belongings such as his lunch,
and had deposited the cards Butler took the forms to his
office, but returned them to Dano about a half hour later,
telling the latter that he "could have the cards in the
building but not pass them out on company time "' On
another occasion, about a week before the layoff,
observing an authorization card on a clipboard used by a
corrugated department employee named Thomas
McGrath, Butler asked him if the card was his, and
whether he was "promoting the Union " McGrath replied
in the negative, but Dano, who was working with
McGrath, said that he (Dano) was promoting the
organization and offered Butler a card Butler said
nothing more and went on his way 8
B The Layoff
On August 23, shortly before quitting time, Pinkerton
assembled the entire corrugated department labor force,
except one, Wayne Halsey, who was absent that
afternoon, and Chapman told them, in substance, that the
department had been operating at a loss, that the
management had decided to discontinue performing
"larger" orders (because they had contributed to the loss,
according to the sense of Chapman's testimony),' that the
department was running out of work, and that for that
reason all in the department were being laid off, but, that
'The I i corrugated department signatories included Ronald Trujillo, who
was on temporary duty in that department in August at the time of the
layoff involved in this case, although regularly assigned to another
department
'Butler testified that while in possession of the cards, he telephoned a
representative of an employers ' association and inquired whether "it was
all right" for Dano to have the cards on the premises , and that the answer
he received was what he told Dano There was no reason , as Butler
conceded , why he could not have sought the advice without taking the
cards, but be that as it may , the legality of Butler's acquisition of the
cards , and of his admonition to Dano, is not in issue here , and I do not
pass on it
'I do not credit a denial by Butler that he "said nothing " to McGrath
about the card , and base the findings as to Butler ' s remarks on McGrath's
testimony Butler concedes that he saw the card on the clipboard , and that
being the case , the likelihood that he made some remark about it to
McGrath is enhanced by the fact of Butler's unauthorized removal of
Dano ' s cards, an act that went beyond a mere prohibition of the use of
"company time " for union activity , and indicates hostility by Butler
toward promotion of unionization in the plant
'The Company purchased the Spring Valley plant from a competitor in
1 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyone who wished to transfer to another department
should see Cooper about the matter. Chapman did not say
how long the layoff would last, although, as he testified,
he intended its duration to be two or three days
McGrath, who had been working on a task that in his
view would require several days of work for completion,
asked Chapman why that job could not be finished, and
Chapman thereupon inquired of Pinkerton how many days
of work were then available for the department Pinkerton
replied that there was enough for at least two days ' °
One of the employees affected by Chapman's
announcement, Betty Short, spoke to Cooper about a
transfer, with the result that she was transferred and lost
no time from work
Halsey, who was absent at the time of the
announcement , reported for work at his customary
starting time on August 24, and Cooper informed him at
that time of the layoff, but that he would be permitted to
work that day because he had not been aware of the
announcement Cooper also told Halsey that the reason
for the layoff was that "the orders were getting low" and
that the management was "cutting out some of the bigger
orders", and then asked Halsey "what he had to do with
this monkey business, the organization of the workers"
Halsey replied that he "wasn't personally passing out
cards or anything like that," and then, asked by Cooper
for his "opinion of the union," Halsey said that he was
for it as long as "we got our higher wages and benefits
like we should." Cooper remarked that everyone was
entitled to his own opinion, but that he did not "think the
union was a good idea "" Halsey lost no time from work
on August 24, and was told by Pinkerton during the
course of that day to return for work on Monday, August
28, and thus had a layoff status on August 25
On August 24, a customer of the Company telephoned
a requirement for "some boxes right away," and during
the course of the day, Cooper recalled two employees,
1966, and , according to Chapman , acquired , with the purchase , a type of
"larger" order that could not be produced efficiently in a combined
operation with the orders for smaller quantities of corrugated containers
previously produced by the Company
"Findings as to the remarks by Pinkerton and McGrath are based on
testimony by McGrath and another employee , Victor Berger Chapman's
testimony makes no reference to these remarks , but Pinkerton denied that
he had "any conversations" with any of the employees at the time of the
layoff announcement It is not clear whether this is intended as a denial
that Pinkerton gave the time estimate McGrath and Berger impute to him,
but, in any case , I am convinced that he did Chapman himself gave
testimony to the effect that he understood at the time of the layoff that
there were "a few days" of work available for the corrugated department
Moreover , as regards the credibility of McGrath and Berger ( and, indeed,
the other witnesses called by the General Counsel to make his case), it is
noteworthy that in an opening statement after the General Counsel had
rested, the Respondent ' s Counsel stated that the "testimony that we have
heard from the union witnesses ( meaning, obviously , those called by the
General Counsel ) so far as it goes, I believe , is substantially accurate "
"Cooper, who appeared to me to be reluctant to give details of his
conversation with Halsey , evidencing a disposition to give his conclusion as
to what the conversation "was around" rather than to quote it, testified
that its "gist" was that Halsey asked him whether he should "continue to
work" that day , in view of the layoff announcement , and that he (Cooper)
agreed , inasmuch as Halsey "was there " That , according to Cooper, is
"about all I can remember " This is something less than a firm denial by
Cooper that he interrogated Halsey, as the latter testified, in effect, about
his union activity and attitude I am persuaded from Cooper ' s demeanor
and the context of his testimony that his memory of the conversation is
better than he admits Quite apart from the concession at the hearing by
the Respondent's counsel that the testimony of the General Counsel's
witnesses " is substantially accurate ," I credit Halsey ' s account of the
conversation
Elzona Briske and Stella Egner, to work on the order
They worked for a portion of August 24, and their layoff
status ended with their return Three employees, Ronald
Trujillo, Ricky Samudio and Martha Germaine, resumed
work on August 25, but the circumstances of their return
do not appear In the early afternoon of August 25,
Pinkerton telephoned the remaining six laid off employees
who had not yet been notified to return, and told them to
do so on August 28. Five did so, and the sixth resumed
work on August 30.1 1
C Discussion of the Issues and Concluding Findings
The Respondent, claiming, in substance, that the reason
for the layoff was solely economic, as support for its
position, presented testimony that the corrugated
department's operations are unprofitable if the
department's labor costs exceed 18 percent of the gross
sales revenue from the products made there, and offered
documentary data aimed at proving that the department
(not the Respondent's entire enterprise, for which there
are no profit or loss figures in the record) sustained a net
loss of $42,419 in the fiscal year ending June 30, 1967,
and that in all but a few pay periods in 1967 labor costs
for the department exceeded budgetary allotments based
on the 18 percent factor "
There is no dispute concerning the corrugated division's
$42,000 operating loss, but whether the loss merits the
considerable emphasis the Respondent places on it is
another matter, quite apart from the fact that the wages
that would have been paid, but for the layoff, would not
have been much more than several hundred dollars, a
miniscule sum compared to $42,000'°
"The following is a complete list of the employees laid off, and a
specification of the respective days on which they lost time from work by
force of the layoff
Raymond Dano
J R Doyle
Thomas McGrath
Ronald Trujillo
William Waldruff
Ricky Samudio
Stella Egner
Elzona Briske
Martha Germaine
Wayne Halsey
Victor Berger
Aug 24 & 25, 1967
Aug 24 & 25, 1967
Aug 24 & 25, 1967
Aug 24, 1967
Aug 24, 25, 28,
& 29, 1967
Aug 24, 1967
Aag 24, 1967
Aug 24, 1967
Aug 24, 1967
Aug 25, 1967
Aug 24 & 25, 1967
"The Respondent also presented figures ( R Exh I ) reflecting the extent
to which labor costs exceeded , or fell below, budgetary allotments from
one pay period to another in the years 1963, 1964, 1965, and 1966 Its
brief notes that in much of 1966 , labor costs fell below the permissible
ratio , exceeding it in the latter part of the year, as in much of 1967, but
even if one assumes some relevancy for the 1966 figures because the last
fiscal year preceding the layoff began in 1966, one is hard put to it to find
a role in this case for the figures for 1963, 1964 , and 1965 That the
Respondent had a loss of some $42,000 from its corrugated department
operations for the fiscal year ending June 30 , 1967 is an uncontested fact,
and that being the case, the figures for the preceding years appear to me to
be immaterial in the absence of any evidence that the Respondent based
the layoff decision , either in whole or part, on the losses in those years
There is no such evidence, and, in fact, for reasons that will presently
appear , it is abundantly clear that financial loss was not the reason for the
layoff Thus 1 deem it unnecessary to make any added analysis of the labor
cost-gross sales revenue factor and the related figures
"In its brief (p 5), the Respondent estimates, and thus in effect concedes,
that its corrugated department wage cost for a complement of 12
employees ran to about $200 per day It may be borne in mind, in that
connection, that the layoff involved I I employees , six of them losing only
one day or less
SAN DIEGO PAPER BOX CO.
The fact is that despite the stress placed upon the loss,
the Respondent's own witnesses do not spell out a claim
that the loss was the reason for the layoff Chapman
himself, although at some pains to establish his awareness
of the loss from data given him by the Company's
accountant prior to the layoff, testified that the
information was not the reason for the layoff,15 but that
he took the action "because work slowed down because of
the change" (discontinuance of "larger orders") He gave
the employees much the same reason in the layoff
announcement According to Chapman's testimony, there
was, at that time, "practically no work in the house"
(corrugated department) Butler testified that the layoff
was "due to a lack of work," and that that was the only
reason, and Cooper, the Company's personnel director,
told Halsey on the first day of the layoff that the reason
for the action was that "the orders were getting low and
they (the Company) were cutting out some of the bigger
orders"
Profitable enterprises, as well as unprofitable ones, may
lay off employees in slack periods, and in view of the
claims of Chapman, Butler, and Cooper to the effect that
insufficient work was the reason for the layoff, and of the
fact, as Chapman conceded, that he intended the layoff to
last only two or three days, it appears to me that the
Respondent's elaborate (and uncontroverted)
documentation of financial loss in the corrugated
department, and of excessive labor costs there during
much of a period of some five years preceding the layoff,
is much beside the point The material question is, in
short, whether the employees were laid off solely because
there was insufficient work for them, or, as the General
Counsel maintains, whether an antiunion purpose underlay
the layoff decision
Focusing on that issue, the claim of insufficient work
for the department does not weather examination, wholly
apart from testimony by a number of employees
(McGrath, Doyle and Berger ) that at the time of the
layoff announcement, they were working on tasks that
would take some days to complete Foreman Pinkerton, it
will be recalled, told Chapman in the presence of the
employees that there was enough work available for the
department to last at least 2 days What is more,
Chapman himself gave testimony to the effect that he
understood from Butler at the time of the layoff that the
backlog of orders on hand would take "a few days" to
perform And it is noteworthy, too, that Chapman's
picture of the department as practically without work at
the time of his announcement is out of kilter with another
claim he makes, to be discussed in some detail later, to
the effect that he made the layoff department-wide,
instead of "laying off any one particular person," for fear
of being charged with discriminating against such an
individual because of union activity. That claim of itself
implies that work was available for all but a relatively
small proportion of the corrugated department labor
force
To cap the matter, the evidence establishes beyond cavil
that the Company received 12 written orders on August
23, the day before the layoff actually began The record
leaves one much in the dark as to important details of the
orders. The Respondent, to be sure, offered some excerpts
from a "sales service log book," showing the date and job
"The loss is reflected in a financial statement dated September 13, 1967,
some three weeks after the layoff, but Chapman testified that he was
aware of the loss prior to the layoff from "work papers" prepared by the
Company ' s accountant , and from discussions with the latter
1121
numbers of the orders, and the names of the customers
who placed them, and introduced production data spelling
out details of performance of some of the jobs after the
employees returned to work,16 but the orders themselves
were not produced, and the record contains no
information as to the aggregate volume of work required
by all 12, nor any evidence as to the time of day on
August 23 when any of them were received, or as to the
total work time required or used for their performance
The missing information is peculiarly within the
Company's knowledge, and within its power to produce,
and its failure to do so warrants an inference that such
information is against the Respondent's interest, and, if
produced, would support a conclusion that the Company
received the 12 orders prior to the layoff announcement,
which came, it will be recalled, shortly before quitting
time on that date, and negate Chapman's testimony that
there was practically no work for the corrugated
department at the time of the announcement "
Moreover, Chapman's claim that the management was
unaware of the orders at the time of the announcement
lacks both plausibility and candor He does not say when
they first came to his attention, nor do Cooper and Butler
state when they became aware of them, and Pinkerton
says he learned about them from Butler on August 25.
The orders amounted to "quite a bit of work," as
Pinkerton described them, and it is difficult to believe that
the management, sensitive to a diminishing business
volume for the corrugated division for some time prior to
August 23, as its case would lead one to believe, and
planning a general layoff for the department, effective as
of the customary starting time on the morning of August
24, because of a shortage of work there, according to its
claim, would not become aware at some point before the
layoff actually began, that a substantial volume of orders
for the department had come in on August 23
Significantly, too, when he made the announcement,
Chapman admittedly intended the layoff to last only 2 or
3 days, and this adds weight to a conclusion that at that
time he had some concrete notion of work that would be
available when the layoff was brought to an end.
The sum of the matter is that I do not credit
Chapman's claim that at the time of the layoff
announcement the corrugated department was practically
without work; and, on the contrary, am convinced, and
find, that as of that time, the Company, to Chapman's
knowledge, had sufficient work available to keep all
corrugated department employees occupied with the
normal performance of their usual functions throughout
the period Chapman intended the layoff to last.
It is a fact that despite Chapman's assertion that the
department was practically without work at the time of
the layoff announcement, and notwithstanding the
testimony given by Chapman and other management
personnel to the effect that substantially all employees in
the department were laid off because of insufficient work
for them, Chapman himself, at various points, in effect
admits that union activity among them was a factor in the
"See R Exh I I which contains production information for some seven
of the orders received on August 23 The orders may be identified by job
numbers listed in R Exh 12
where the party on whom rests the burden of evidence as to a
particular fact has the evidence within his control and withholds it, the
presumption is that such evidence is against his interest and insistence "
N L R B v. Ohio Calcium Company , 133 F 2d 721, 727 (C A 6) See
also Wigmore , Evidence , Sec 285 (3d ed 1940), and cases cited The duty
of going forward with evidence to support its proffered economic
justification for the discharge is obviously on the Respondent
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scope of the layoff What he says in that regard is that at
a meeting he held with Cooper and Butler on August 22
or 23 (or two or three days before the layoff, according to
Chapman at another point), they decided on a
departmentwide layoff, instead of following the
Company's standing policy of laying off help on the basis
of seniority, because some months earlier, it had been
charged with unfair labor practices involving the discharge
of an employee, and "we (Chapman, Butler and Cooper)
were apprehensive about laying off any one particular
employee which is our usual custom, because of the union
activity (in August, according to the sense of Chapman's
testimony) and not wanting to be cited with an unfair
labor practice citation."
It is hard to see why an economic layoff of one or more
employees in accordance with standing seniority policy
would expose the Company to an unfair labor practice
charge any more than a layoff of all employees in the
department (and the fact is that the charge in this
proceeding was filed only about a week after the layoff),
but, in any case, Chapman's explanation suffers from the
major malady of contradiction by Butler and Cooper
Butler testified that he had no knowledge that employees
were to be laid off prior to Chapman's announcement on
August 23, and never attended a meeting with Chapman
at which either a layoff or "the union" was mentioned.
And Cooper testified that he attended "meetings" with
Chapman at which a layoff was discussed, but that he
does not "believe" that Chapman expressed any fear that
an unfair labor practice charge might be filed against the
Company in the event that any employee were singled out
for layoff. What is more, according to Pinkerton, it was
Cooper, at a meeting with him and Chapman a day or so
before the layoff, who "suggested laying off the whole
department "
In the face of the material contradictions between
Chapman and other management personnel regarding the
layoff decision, I do not credit his account of the meeting
at which the decision was allegedly made, nor do I believe
his explanation of the scope of the layoff.
The very fact that the Respondent's explanation of the
timing and scope of the layoff does not weather
examination points to the existence of an ulterior motive
it is seeking to conceal. I am convinced that the
Respondent had such a motive, and that it is to be found
in the combination of circumstances that the
organizational efforts in August were primarily centered
in the corrugated department; that union activity in the
department was obvious to the management; that Butler,
at least, knew of no such activity in any other department;
and that the management was hostile to the organizational
activity among the corrugated department employees, as
evidenced by Butler's conduct in taking Dano's
authorization cards (an action that was wholly unjustified
by any legitimate right in the Company to prohibit the use
of "company time" for solicitation of card signatures),
and by Cooper's inquiry of Halsey, in a context of
granting him permission to work on the first day of the
layoff, as to what he "had to do with this monkey
business." These circumstances, in the absence of a
credible explanation by the Company of the timing and
departmentwide scope of the layoff, warrant a conclusion
that the widespread prounion sentiment in the department
underlay the layoff, and that it was aimed at discouraging
the employees there from seeking additional economic
benefits through unionization by demonstrating for them
that the volume of work available for them was
insufficient to give them full employment.
In fact, Cooper, who, according to Pinkerton, had
authored the idea of a departmentwide layoff, admitted, in
a conversation with an employee, William Waldruff,
within a few weeks after the layoff, that union activity
among the employees had been a factor in the layoff.
Waldruff, who had been one of those laid off, and had
subsequently been assigned to janitorial duties, came to
Cooper's office on the occasion in question to express his
dissatisfaction with the work given him and to discuss his
future job prospects. Cooper suggested that Waldruff quit
since he would be discharged in any case, and alter some
discussion of the course that would be preferable from
Waldruff's standpoint, the conversation turned to the
layoff, Waldruff asking Cooper, "Did the Union have
anything to do with our being laid off?" Cooper replied,
"Yes, as a matter of fact it did," and proceeded to say
that the employees were already receiving wages as high
as any paid by similar enterprises on the West Coast, and
"did not stand to gain anything by getting the Union in,"
and that "if you people hadn't gone to the Union then we
would have made a bigger effort to help you keep your
job and keep the orders up in the department, but since
you did go to the Union then we are not going to do
anything more to try to help you out "18
Some of Cooper's remarks are reasonably open to an
interpretation that a diminishing business volume for the
corrugated department for some time prior to the layoff
was in some measure due to a deliberate decision to keep
the volume at a smaller level than was necessary for some
reason related to union activity in the department The
Respondent offers no explanation of Cooper's reference to
the Company's failure to make "a bigger effort to .
keep the orders up," and it would serve no useful purpose
to speculate as to the full reach of this aspect of Cooper's
remarks. What is clear from his statements, read as a
whole in the light of the full record, is that the Company
had a punitive attitude toward the corrugated department
employees as a group because of the union activity among
them; and that he, in effect, admitted that the activity was
a factor in the layoff decision.
The conclusion that an antiunion purpose underlay the
decision is not negated by the fact that Chapman told the
employees that they should "see" Cooper if they wished a
transfer. This was not an offer of alternative employment;
but at best a suggestion that the employees look into it.19
"Findings as to the conversation are based on Waldrufrs testimony,
which I credit I have taken into account Waldrufrs interest , and the
obvious fact that one must exercise caution in accepting an interested
employee ' s claim that an employer admitted that he had an antiunion
motive for a personnel action The fact is, however , that Waldrufrs
testimony quoting Cooper on the subject of union activity and the layoff is
uncontradicted Cooper, although quoting himself to the same effect as
Waldruff on the subject of quitting and discharge , testified that he has no
recollection of anything else he said Moreover , as previously noted, the
Respondent 's counsel in effect conceded after the close of the General
Counsel's case that the testimony of the latter ' s witnesses ( including
Waldruff) " is substantially accurate "
"The suggestion had manifest ambiguity Chapman admittedly did not
tell the employees whether the transfers he had in mind were permanent or
temporary , nor did he say in his testimony which he visualized If what he
had in mind were available temporary assignments , one is led to wonder
why he did not tell the employees that the layoff would last only two or
three days - the duration he admittedly intended - and simply assign
them to temporary duties or direct Cooper or another supervisor to do so
If he visualized permanent transfers , it is difficult to reconcile such an
intention with the brief layoff he says he intended I note, also, that
Chapman was unresponsive and, in my judgment , evasive when , in reply to
a question whether he had permanent or temporary transfers in mind, he
testified that the one transfer, that of Betty Short, "as it turned out, was a
permanent transfer "
SAN DIEGO PAPER BOX CO. 1123
There is no evidence that openings were available for all,
nor do we know what disposition would have been made
of applications by those who, unlike Betty Short who did
talk to Cooper and was transferred, had engaged in union
activity at the plan t.20 The fact of Chapman's suggestion,
in sum, does not dispel the substantial evidence of the
Company's hostility toward union activity among the
corrugated department employees, nor dissipate the
conclusion that at the time of the layoff announcement,
there was enough work on hand for the department to
keep all employees there occupied with their usual duties
throughout the intended layoff period, nor alter the fact
that Cooper admitted to Waldruff that union activity
among the employees was a factor in the layoff
I take that view, also, of evidence that two women
employees were recalled on August 24 to work on an
order received by telephone that day, and that shortly
after the layoff announcement, Cooper asked one of the
laid off employees, Victor Berger, whether he wished to be
transferred to a job "on the receiving and shipping dock,
handling materials." The telephone order was a
requirement for "some boxes right away," or, in other
words, was an emergency request, and it is also evident
that the Company had a need to fill a vacancy on its
dock, and the fact that it sought to meet both needs in the
manner it did is not, in the context of the record as a
whole, inconsistent with the existence of a purpose, in the
general layoff announcement , addressed to the corrugated
department labor force as a group, to discourage prounion
activity and sentiment in the group 2i
I find, for the reasons stated, that an underlying
purpose of the layoff was to discourage the affected
employees as a group from seeking union representation,
and that by laying off the 11 employees in question, the
Company violated Section 8(a)(3) of the Act, and
interfered with, restrained and coerced employees in the
exercise of rights guaranteed them by Section 7 of the
Act, thus violating Section 8(a)(1) of the statute
The remaining issue is whether the interrogation of
Halsey by Cooper, and of McGrath by Butler, regarding
union activity was unlawful. It would be a mistake, in my
view, to treat the conduct in question as de minimis
because only two acts of interrogation and two employees
were involved The corrugated department labor force,
which was the primary focus of union activity at the
Spring Valley plant, was relatively small, consisting of
only about a dozen employees in August In the climate of
hostility toward union activity in this small group
generated by the management, the acts of interrogation
would have a natural tendency to inhibit the free exercise
of the employees' right of self-organization
The hostility is evidenced not only by the layoff, with
its ulterior purpose of discouraging the employees from
seeking union representation, but by other conduct that, it
is fair to conclude, made the Company's antiunion
attitude manifest to the employees interrogated. McGrath,
"The General Counsel makes a point of the fact that Betty Short was
the only corrugated department employee who had not executed an
authorization card, thus intimating that that was the reason why she lost
no time from work However, the record does not establish that the
Company knew that she had not signed a card
"Berger, who was among those recalled on August 25 to start work on
August 28, declined Cooper's offer upon his return The record is
insufficient for a determination whether the job on the dock was
substantially equivalent to that Berger held in the corrugated department
A resolution of that matter may have a bearing on the amount of back
pay, if any, that may be due Berger, and is reserved for disposition in the
compliance stage of this proceeding
who had signed an authorization card on August 1, and in
mid-August had "a stack" of such cards in his possession,
engaging in organizational activity among the employees
in that period, witnessed the seizure of Dano's cards by
Butler This incident and Butler's interrogation of
McGrath occurred within a space of a few days in or
about mid-August It is not clear which incident came
first, but, in any case, one may fairly infer that McGrath
felt inhibited by Butler's interrogation, for when Butler,
noticing an authorization card on McGrath's clipboard,
asked him whether he "was promoting the Union,"
McGrath replied in the negative. The circumstance that
Dano, who was working with McGrath on that occasion,
spoke up and said that he was promoting the Union,
offering Butler a card, does not alter the fact that
McGrath, as evidenced by his reply, felt some concern, at
least on that occasion, about Butler's inquiry into his
union activity.
The Respondent advances no good reason (nor any
reason, for that matter) for the inquiry by Cooper into
what Halsey "had to do with this monkey business," and
the fact that the inquiry was gratuitously harnessed by
Cooper to his explanation of the layoff to Halsey gives
added point to the conclusion that there was a causal
connection between "this monkey business" and the
layoff, and the use of the label "monkey business" to
describe the exercise of the employees' right of
self-organization appears to me to have been but another
expression of the Respondent's underlying hostility to that
exercise. In Halsey's case, too, it is fair to infer that he
had some concern about the query about his role in "this
monkey business" for he did not reveal that he had signed
an authorization card (on August 1), confining his reply to
a somewhat ambiguous statement that he "wasn't
personally passing out any cards or anything like that."
That he was concerned about the inquiry into his activity
is not negated by the fact that when Cooper followed that
question and Halsey's reply with a request for the
employee's opinion of the Union, he replied that he was in
favor of it if it brought him higher wages and benefits
Viewing the total record, I find that the Company
abridged Section 7 rights of employees, thereby violating
Section 8(a)(1) of the Act, as a result of Butler's inquiry
of McGrath whether the authorization card on McGrath's
clipboard was his, and whether the latter was "promoting
the Union", and of Cooper's interrogation of Halsey as to
what the latter "had to do with this monkey business,"
and as to his opinion of the Union.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
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 burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair
labor practices violative of Sections 8(a)(1) and 8(a)(3) of
the Act, I shall recommend below that it cease and desist
from the unfair labor practices found, and take certain
affirmative actions designed to effectuate the policies of
the Act.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Company discriminatorily laid
off Raymond Dano, J R Doyle, Thomas McGrath,
Ronald Trujillo, William Waldruff, Ricky Samudio. Stella
Egner, Elzona Briske, Martha Germaine, Wayne Halsey,
and Victor Berger, in violation of Sections 8(a)(1) and
8(a)(3) of the Act, and having found that each of these
individuals was thereafter reinstated to his (or her) former,
or a substantially equivalent, position, I shall recommend
that the Company make each such person whole for any
loss of pay the said person may have suffered by reason of
the said layoff for the duration of such individual's layoff,
as found above, together with interest thereon at the rate
of 6 percent per annum, as provided below, and that the
said loss of pay be computed in accordance with the
formula and method prescribed by the Board in F W
Woolworth Company, 90 NLRB 289, and include interest
at the rate of 6 percent per annum as provided in Isis
Plumbing & Heating Co , 138 NLRB 716, to which cases
the parties to this proceeding are expressly referred
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following.
CONCLUSIONS OF LAW
1 San Diego Paper Box Company, is, and has been at
all material times, an employer within the meaning of
Section 2(2) of the Act
2 Teamsters Local 542 is, and has been at all material
times, a labor organization within the meaning of Section
2(5) of the Act
3 By discriminatorily laying off I I employees, as found
above, the Company has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act
4. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the said Company
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and 2(7) of the Act
RECOMMENDED ORDER
(a) Make Raymond Dano, J R Doyle, Thomas
McGrath, Ronald Trujillo, William Waldruff, Ricky
Samudio, Stella Egner, Elzona Briske, Martha Germaine,
Wayne Halsey, and Victor Berger whole in the manner
and according to the method set forth in section V, above,
entitled "The Remedy."
(b) Preserve until compliance with any order for back
pay made by the National Labor Relations Board in this
proceeding is effectuated, and make available to the said
Board and its agents, upon request, for examination and
copying, all payroll records, social security records,
timecards, personnel records, job orders, and production
records relevant to a determination of the amount of
backpay due
(c) Post in conspicuous places at the Company's place
of business in Spring Valley. California, including all
places where notices to employees are customarily posted
there, copies of the notice attached hereto Copies of the
said notice, to be furnished by the Regional Director for
Region 21 of the National Labor Relations Board, shall,
after being duly signed by an authorized representative of
the Company, be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days
thereafter in such conspicuous places. Reasonable steps
shall be taken by the said Company to insure that said
notices are not covered, altered or defaced by any other
material 22
(d) Notify the said Regional Director, in writing, within
20 days of the receipt of a copy of this Decision, what
steps the Respondent has taken to comply therewith 23
"In the event that this recommended order is adopted by the National
Labor Relations Board , the words "a Decision and Order" shall be
substituted for the words "the Recommended Order of a Trial Examiner"
in the notice In the additional event that the Board's Order is enforced by
a decree of the United States Court of Appeals "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
paragraph 2(d) thereof shall be modified to read "Notify the said
Regional Director, in writing , within 10 days from the date of this order,
what steps the Respondent has taken to comply therewith
APPENDIX
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that San Diego Paper Box
Company, its officers, agents, successors, and assigns,
shall
I Cease and desist from
(a) Discouraging membership of its employees in
Teamsters Local 542, or in any other labor organization,
by discharging, laying off, or otherwise denying
employment to, any employee, or in any other manner
discriminating against any employee in regard to his hire
or tenure of employment or condition of employment.
(b) Interrogating any of its employees as to any
employee's activities, membership, or interest in, support
of, or adherence to, any labor organization, in a manner
constituting interference, restraint, or coercion, in
violation of Section 8(a)(1) of the Act
(c) Or in any like or related manner interfering with,
restraining, or coercing employees in the exercise of any
of the rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action which I find
will effectuate the policies of the Act
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that.
WE WILL NOT discourage membership of any of our
employees in Teamsters Local 542, or in any other
labor organization, by discharging, laying off, or
otherwise denying employment to, any employee, or in
any other manner discriminating against any employee
in regard to his hire, tenure of employment, or any
term or condition of employment
WE WILL NOT interrogate any of our employees as to
any employee's activities, membership, interest in,
support of, or adherence to, any labor organization, in
a manner constituting interference, restraint or coercion
in violation of Section 8(a)(I) of the said Act
WE WILL NOT in any like or related manner interfere
with, restrain or coerce any of our employees in the
exercise of any of the rights guaranteed them by
Section 7 of the said Act
SAN DIEGO PAPER BOX CO
WE WILL make Raymond Dano, J R Doyle,
Thomas McGrath, Ronald Trujillo, William Waldruff,
Ricky Samudio, Stella Egner, Elzona Briske, Martha
Germaine, Wayne Halsey, and Victor Berger whole for
any loss of pay they may have suffered by reason of
our discrimination against them, together with interest
on the sum due each
All of our employees are free to join, or to refrain from
joining, any union
SAN DIEGO PAPER Box
COMPANY
(Employer)
1125
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.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California 90014, Telephone
688-5229
Dated By
(Representative ) (Title)