Scott Paper Co.

National Labor Relations Board - Board Decisions

Jan 15, 1970

180 N.L.R.B. 732 (N.L.R.B. 1970)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott Paper Company and Truckdrivers,
Warehousemen and Helpers Local Union No. 340
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case I-CA-6486
January 15, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 4, 1969, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 , the briefs, and
the entire record in this case , and adopts the
findings, conclusions, and recommendations of the
Trial Examiner , as modified herein.
At the hearing, after the General Counsel rested
his case , and after the Trial Examiner had granted
General Counsel's motion to strike paragraphs I
through 4 of Respondent's affirmative defense set
forth in its Answer, the Trial Examiner ruled that
the matters contained in paragraph 5 of
Respondent ' s affirmative defense could not be
litigated in this hearing because these matters had
been specifically raised before the Board in the
Employer ' s request for review of the Regional
Director ' s decision that certain laid-off employees
were not eligible to vote in the representation
election , and were found by the Board to be without
merit.
However, because the Trial Examiner "felt that
there was much to be said for the position asserted
by Respondent on this issue ," he allowed
Respondent to make an offer of proof in support of
paragraph 5 of its affirmative defense . Respondent
was allowed to present all evidence on this issue,
which it would have presented but for the Trial
Examiner's adverse ruling , and the General Counsel
was given full right of cross-examination and
rebuttal. The Trial Examiner then rejected this offer
of proof as evidence, and did not consider it in his
decision.
While we affirm the Trial Examiner's ruling that
he was bound by the Board's earlier determination
in this matter, we further find that the offer of
proof, even if accepted and considered, would not
affect the results herein.
On May 25, 1968, the Board issued its Decision
and Direction of Election' in this matter, directing,
in part, that employees who did not work during the
critical payroll period would still be eligible to vote
if they were "temporarily laid off." Many of
Respondent's operations were temporarily shut
down from about March 24, 1968, to about May 27,
1968. The election was held on June 26, 1968, with
163 ballots being cast for the Union, 139 against it,
and 5 challenged ballots.
Continuously since the timely filing of its
objections to election, Respondent has asserted that
some 30 employees were denied their right to vote
by the Board . Respondent's fifth affirmative defense
contends that this is so because (1) these employees
were in temporary layoff status and thus were
presumptively eligible to vote, and (2) they were not
given timely notice of the election. The parties have
stipulated that these employees were not given
timely notice, and thus the sole remaining question
is whether Respondent came forward with sufficient
evidence to show that they were temporarily laid off
within the meaning of the Board's Direction of
Election and were therefore eligible to vote.
Respondent's offer of proof shows that 27
pieceworkers and 2 hourly workers had tenure
during the critical period, and Respondent contends
on that basis alone that these 29 workers,:
admittedly sufficient in number to affect the
outcome of the election, should be found to have
occupied temporary layoff status and thus be eligible
to vote.
Pieceworkers receive tenure after working 60
days, and hourly workers receive tenure after
working 6 months. Tenured employees are kept on
Respondent's payroll for 90 days after layoff, and
they continue to receive, or are eligible for, certain
group benefits. They also retain their seniority for
this period. At the end of the 90-day period, their
records are taken from Respondent's employee file,
their benefits cease , and they are terminated in all
respects.
The 27 pieceworkers involved herein were
members of various 3-man tractor crews. As set
forth in detail in Scott Paper Company, supra, and
as corroborated by Respondent's offer of proof,
Respondent deals directly with the tractor-owners,
who generally act as operators, and who participate
in the recruitment and replacement of crew
members . A crew member may also participate in
such recruitment. However, the actual hiring of any
'Scott Paper Company. 171 NLRB No. 117.
'The offer of proof showed that I hourly worker, originally included in
the 30, did not have tenure , and Respondent has not contended at the
hearing or in its brief that this worker would be eligible to vote.
180 NLRB No. 115
SCOTT PAPER COMPANY
crew member is done by Respondent . When a crew
is to be laid off or recalled , Respondent contacts the
tractor owner , who then informs his crew.
Thomas Karlen , Respondent ' s personnel manager
for the affected operations , was the only witness to
testify in support of Respondent ' s offer of proof.
Karlen stated that the 27 employees were on
temporary layoff status by Company standards.
However, Karlen also testified that no independent
investigation was made to determine if these 27 men
actually did intend to return to work. As
Respondent states in its brief in support of its
exceptions to the Trial Examiner ' s Decision:
Because decisions as to when and for what
reasons a particular worker will, or will not, work
at any given time are essentially a matter decided
upon between the worker and his tractor
owner- operator , the Company had no knowledge
as to the specific reason or reasons why each of
these employees did not return to work on May
27....
Respondent also admittedly has no knowledge as to
the circumstances under which the 27 employees left
their employment at the time of the March 24
shutdown . Karlen testified that if these employees
had informed the owner -operators on March 24 that
they were leaving permanently, Respondent would
have been unaware of the fact . Respondent made no
effort to contact these employees to tell them to
return to work on May 27,' or at any time
thereafter . None of the affected employees was
called as a witness at the hearing, and there is no
indication in the record of their intentions.
Similarly , no attempt was made to contact the
two hourly wage workers , and they were not called
to testify as to their status during the critical period.
In addition, these two men were laid off directly by
the camp foreman , who could have testified as to
the status of the two men.
As the employer of the 29, laid-off employees,
Respondent was in the best position to establish, if
so, that the men had a reasonable expectancy and
intention of returning to work and therefore were
entitled to vote in the election. However,
Respondent has not come forward with sufficient
evidence to establish that fact . It is noted , first, that
Respondent admittedly does not know what
arrangements the men made with tractor- owners
when they were informed of the layoffs by the latter;
second , Respondent made no attempt to recall them
to work on May 27, when it resumed operations, or
at any time thereafter ; third , Respondent admitted
that it had no intention of increasing its work force
at the time of the election ;' and, finally, Respondent
offered none of the laid-off employees as a witness
'Karlen testified that none of the 27 was contacted . However , three of
the 27 were tractor owner-operators . Respondent deals directly with its
tractor owner-operators , and the tractor owner-operators then inform other
crew members of impending layoffs or recalls . Whether these three men
were told to report or not, it is evident that no attempt was made to
contact them to ascertain their intentions or that of the crew members.
733
to testify as to his intention and expectation. The
mere fact that, as a result of Respondent's practice,
the laid-off employees retained certain employee
benefits for 90 days after their layoffs does not
establish that they expected or were expected to
return to work.' Accordingly, accepting the evidence
offered by Respondent in support of its offer of
proof, we find that the 29 laid-off employees were
not eligible to vote in the election. We shall
therefore on this additional ground adopt the Trial
Examiner's Recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Scott Paper Company,
Waterville , Maine , its officers, agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order.
'Except for two individuals, the laid -off employees never did return to
work for Respondent.
'Ben Pearson 's Inc.. 133 NLRB 636 , 639; Brown -Forman Distillers
Corporation . 118 NLRB 454, 455
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: Upon a
charge and an amended charge filed on October 11, 1968,
and October 23, 1968, respectively, by Truckdrivers,
Warehousemen and Helpers Local Union No. 340 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter
referred to as the Union, the General Counsel for the
National Labor Relations Board, hereinafter referred to
as the Board, issued a complaint on October 29, 1968,
against Scott Paper Company, hereinafter referred to as
the Respondent or the Company, alleging that the
Respondent refused to bargain with the Union in violation
of Sections 8(a)(1) and (5) and 2(6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136),
hereinafter referred to as the Act. Thereafter, on
November 8, 1968, the Respondent filed a timely answer
to the complaint, wherein it denied having committed any
violation of the Act.
Pursuant to notice , a hearing was held in this matter on
February 19, 1968, at Waterville, Maine , at which all
parties were represented by counsel. As the parties
indicated that they would not file briefs, no time was set
for such purpose.
Upon the entire record in this case, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Scott Paper Company, a Pennsylvania Corporation,
maintains a place of business in Winslow, Maine, in which
plant it is engaged in the manufacture , sale, and
distribution of paper and related products. The
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also maintains timberlands located in various
parts of Maine for the purpose of supplying pulpwood for
its mill operations at Winslow. Annually the Respondent
receives at its Winslow plant from states outside of
Maine, materials valued in excess of $50,000, and ships in
interstate commerce to points outside of Maine, paper
products valued in excess of $50,000. The parties admit,
and I find, that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that Truckdrivers, Warehousemen and Helpers
Local Union No. 340 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
The Respondent, in this proceeding, challenges the
validity of the Board's certification of the Union as the
exclusive bargaining representative of certain of its
employees in a prior representation matter involving the
parties. In this regard, the undisputed facts disclosed that,
pursuant to a representation petition having been filed by
the Union in Case I-RC-9696, a hearing was conducted
on various dates in August and October 1967. Thereafter,
on May 25, 1968,' the Board issued its Decision and
Direction of Election2 in which, after finding without merit
a number of Employer assertions, it directed an election
among certain of the Employer's employees. The unit
found appropriate by the Board therein is one comprising.
All employees of the Woodland Department of the
employer's Northeast Division employed at the lumber
camps on the Company's timberlands in the state of
Maine known as Farrar Mountain Camp, Mayfield
Camp, Big Squaw Camp, Moose River Camp, Carrying
Place Camp and Summerset Camp, and any other
existing Woodland camp currently operated by the
Company on its main timberlands, together with vehicle
maintenance mechanics at its Bingham, Maine , garage,
and employees of its Moose Head Lake towing and
driving operations; excluding contracted gravel
truckdrivers, contracted loaders and haulers, scalers,
clerical personnel, professional employees, guards, and
supervisors as defined in the Act.
On June 26 , an election was conducted among the unit
employees, which resulted in 163 votes having been cast
for the Union and 139 against . Thereafter, on July 2, the
Employer filed objections to election, asserting that some
30 laid-off employees who presumptively were eligible to
vote were effectively deprived by the Board of their right
to vote in the election, and thus, that the results of the
election should be set aside . Based upon an investigation
of the objections, the Regional Director on July 24, issued
his supplemental decision on objections and certification
of representative , concluding that the laid -off employees in
question had no reasonable expectancy of recall and were
not eligible to vote in the election, and therefore,
overruling the employer's objection that the eligibility of
these employees should have been resolved prior to the
election. The Regional Director thus issued a Certification
' All dates hereinafter refer to 1968 , unless otherwise noted.
'Scott Paper Company, 171 NLRB No. 117.
of Representative to the Union as the exclusive bargaining
representative of the Employer's employees in the unit
found appropriate
Subsequently, on October 2, the Employer filed with
the Board a request for review of the Regional Director's
supplemental decision on objections and certification of
representative, raising with the Board the procedural and
substantive matters relating to the voting eligibility of the
employees in question, and asserting that it was entitled to
a hearing upon which a factual resolution could be made.
By teletype, dated August 21, the Board denied the
Employer's request for review on the ground that "it
raises no substantial issues warranting review "
Thereafter, on or about October 1, the Union requested
that the Respondent bargain collectively with it as the
exclusive representative of the employees, with which
request the Respondent, on or about October 3, and
thereafter, admittedly refused to comply.
Subsequent to the issuance of the complaint herein and
the filing of a timely answer by the Respondent, in which
the Respondent admitted its refusal to bargain without
admitting a violation, the General Counsel, on November
20, filed a motion for judgment on the pleadings.
Thereafter, based upon an order to show cause,
Respondent's opposition thereto, and the General
Counsel's response to that opposition, Trial Examiner
Frederick U. Reel, on December 23 issued an order
denying motion for judgment on the pleadings together
with his opinion accompanying order
At the hearing, after the General Counsel rested his
case , I granted General Counsel's motion to strike
paragraphs I through 4 of the Respondent's affirmative
defense set forth in its Answer on the ground that the
matters asserted therein had been litigated in the
representation proceeding and that any evidence the
Respondent had with respect thereto was not "newly
discovered" warranting its admission. With respect to
paragraph 5 of Respondent's affirmative defense, which
paragraph encompasses the assertion concerning the
eligibility of the 30 employees, and notwithstanding
counsel for the Respondent' s reliance on Trial Examiner
Reel's prehearing opinion accompanying his order denying
motion for judgment on the pleadings as granting the
Respondent a hearing on the employee eligibility matter, I
ruled, after extensive argument by counsel, that, as the
matter had been specifically raised before the Board in the
Employer's request for review and found by the Board to
be without merit including Respondent's argument that it
was entitled to a hearing on the issue, the matter could
not be litigated in this unfair labor practice proceeding.'
Accordingly, as I view the Board's certification of the
Union in the representation proceeding as conclusive and
binding upon me,' rendering the validity of the election
upon which the certification is predicated other than
'Because I felt that there was much to be said for the position asserted
by the Respondent on this issue, as articulated by Trial Examiner Reel,
and in order to preclude a reopening of this hearing in the event that the
Board , on exceptions, agrees with the Respondent that my ruling was in
error, I permitted Respondent to make an offer of proof in question and
answer form and thus to elicit testimony , with cross-examination by the
General Counsel , which, but for my adverse ruling , the Respondent would
have adduced in support of paragraph 5 of its affirmative defense. This
evidence , fully understood by the parties , is rejected evidence and will not
be considered by me in rendering my decision herein
'Air Control Products of St . Petersburg Inc.. 139 NLRB 413;
Allis-Chalmers Manufacturing Company , 120 NLRB 644, Wytheville
Knitting Mills, Inc, 117 NLRB 1719; Shoreline Enterprises of America
Inc. 117 NLRB 1619.
SCOTT PAPER COMPANY
properly the subject of litigation in this proceeding,' I am
compelled to find, as I do, that , on the basis of the
Board 's determination in the representation case , and the
Respondent ' s answer in this proceeding , the Union since
July 24, has been the exclusive bargaining representative
for all of the employees in the unit heretofore found
appropriate , and that the Respondent , since October 3,
has refused to bargain with the Union within the meaning
of Section 8(a)(5) and derivatively , Section 8(a)(1) of the
Act.
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
It having been found that the Respondent has engaged
in an unfair labor practice, it is recommended that it cease
and desist therefrom and that it take certain affirmative
action which is necessary to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Scott Paper Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Truckdrivers, Warehousemen and Helpers Local
Union No. 340 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. Since July 24, 1968, Truckdrivers, Warehousemen
and Helpers Local Union No. 340 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America has been the exclusive bargaining
representative within the meaning of Section 9(a) of the
Act for all employees employed in the unit herein found
to be appropriate for purposes of collective bargaining.
4. By refusing since October 3, 1968, to bargain
collectively with Truckdrivers, Warehousemen and
Helpers Local Union No. 340 a/w International
Brotherhood of Teamsters, Chauffeurs, as the exclusive
representative of all its employees in the above-described
unit , the Scott Paper Company has engaged in and is
engaging in an unfair labor practice within the meaning of
Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that the Respondent, Scott Paper
Company, its officers, agents, successors and assigns,
shall:
'See Trojan Boat Company, 175 NLRB No. 157
735
I. ' Cease and desist from:
(a) Refusing to bargain collectively through
Truckdrivers, Warehousemen and Helpers Local Union
No. 340 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America as
the exclusive bargaining representative of all of its
employees in the following unit:
All employees of the Woodland Department of the
employer's Northeast Division employed at the lumber
camps on the Company's timberlands in the state of
Maine known as Farrar Mountain Camp, Mayfield
Camp, Big Squaw Camp, Moose River Camp, Carrying
Place Camp and Summerset Camp, and any other
existing Woodland camp currently operated by the
Company on its main timberlands, together with vehicle
maintenance mechanics at its Bingham , Maine, garage,
and employees of its Moose Head Lake towing and
driving operations; excluding contracted gravel
truckdrivers, contracted loaders and haulers, scalers,
clerical personnel, professional employees, guards, and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with
Truckdrivers, Warehousemen and Helpers Local Union
No. 340 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of the employees in
the certified appropriate unit and embody in a signed
agreement any understanding reached.
(b) Post in conspicuous places at its place of business at
Winslow, Maine, and at each of the camps set forth in the
appropriate unit description, copies of the attached notice
marked "Appendix."6 Copies of said notice, on forms to
be provided by the Regional Director for the First Region,
shall, upon being duly signed by the Respondent's
representative, be posted by it, as aforesaid, immediately
upon receipt thereof and maintained for at least 60
consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing , within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.7
'In the event that this Recommended Order be adopted by the Board the
words "a Decision and Order" shall be substituted for the words "The
Recommendations of a Trial Examiner" in the notice . In the further event
that the Board ' s Order be enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
'In the event that these Recommendations be adopted by the Board, this
provision shall be modified to read , "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
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 we hereby notify our employees that:
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively upon request with
Truckdrivers, Warehousemen and Helpers Local Union
No. 340 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative for all of our
employees in the certified bargaining unit described
below with respect to rates of pay, wages, hours of
employment and other terms and conditions of
employment , and embody in a signed agreement any
understanding reached . The bargaining unit is:
All employees of the Woodland Department of the
employer ' s Northeast Division employed at the
lumber camps on the Company's timberlands in the
state of Maine known as Farrar Mountain Camp,
Mayfield Camp, Big Squaw Camp, Moose River
Camp, Carrying Place Camp and Summerset Camp,
and any other existing Woodland camp currently
operated by the Company on its main timberlands,
together with vehicle maintenance mechanics at its
Bingham , Maine, garage , and employees of its Moose
Lake towing and driving operations ; excluding
contracted gravel truckdrivers , contracted loaders and
haulers, scalers, clerical personnel , professional
employees , guards, and supervisors as defined in the
Act.
WE WILL NOT by refusing to bargain collectively
through Truckdrivers, Warehousemen and Helpers
Local Union No. 340 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America , or in any like or related manner , interfere
with , restrain or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the National
Labor Relations Act.
Dated By
SCOTT PAPER COMPANY
(Employer)
(Representative ) (Title)
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, 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
617-223-3353.