Shurfine-Central Corp.

National Labor Relations Board - Board Decisions

Oct 31, 1966

161 N.L.R.B. 648 (N.L.R.B. 1966)

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerce our employees in the exercise of their right to self-organization, to form,
join, or assist Food Handlers Union Local 371, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by the provisos in Section
8(a)(3) of the Act.
All of our employees are free to become, remain, or refrain from becoming or
remaining, members of Food Handlers Union Local 371, Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL-CIO, or any other labor
organization.
HOME PRIDE PROVISIONS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(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 pro-
visions, they may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building , 24 School Street, Boston, Massachusetts 02108,
Telephone 223-3353.
Viking Bag Division , Shurfine-Central Corporation and Interna-
tional Brotherhood of Pulp , Sulphite and Paper Mill Workers,
AFL-CIO . Case 26-CA-1289. October 31,1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner Benjamin B. Lipton issued his
Decision in the above-entitled case, 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. Neither the General
Counsel nor the Charging Party filed exceptions in the above case.
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 [Chairman McCulloch and Members Brown and Zagoria].
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 brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
161 NLRB No. 51.
VIKING BAG DIVISION
TRIAL EXAMINER'S DECISION
649
STATEMENT OF THE CASE
Hearing was held before Trial Examiner Benjamin B. Lipton in this proceeding in
Pine Bluff, Arkansas, on March 29, 30, and 31, 1966, upon a complaint by the
General Counsel of the National Labor Relations Board alleging that the above-
captioned Respondent committed certain independent violations of Section 8(a) (1),
(3), and (5) of the Act.' All parties were represented at the hearing and were
afforded full opportunity to examine witnesses and to present relevant evidence. At
the close of the hearing, oral argument on the recoid was waived by all parties.
Comprehensive briefs filed by the General Counsel and Respondent have been care-
fully considered.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Viking Bag Division, Shurfine-Central Corporation operates a plant at Pine Bluff,
Arkansas, solely the subject of this proceeding, where it is engaged in the manu-
facture of paper bags. During the year preceding issuance of the complaint,
Respondent sold and shipped from its Pine Bluff plant to points outside the State
of Arkansas finished products valued in excess of $50,000. Respondent admits, and
I find, that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Essential positions and issues
Relying principally upon the well-known Joy Silk Mills doctrine,2 the -General
Counsel seeks to establish that Respondent engaged in serious and substantial
coercive practices following the Union's recognition request based upon signed
authorization cards, and that Respondent thereby rendered a free election impossible
and demonstrated that its refusal to recognize the Union was motivated by a rejec-
tion of the collective-bargaining principle and a desire to gain time within which to
destroy the Union's majority representation. In its formal answer (dated Febru-
ary 11, 1966), Respondent denies the commission of any of the alleged violations,
and states that "it does not believe the Union represents" a majority, that it "now
refuses to recognize or bargain" with the Union, and that it has been presented
with information of coercion and misrepresentation by agents of the Union in secur-
ing authorization cards from the employees. It further contends that its good faith
in questioning the Union's majority status is shown by its filing of an employer
petition for an election.
From the pleadings and the litigated record, the main issues which emerge are:
1. Whether, at the time of its recognition request, the Union had valid authoriza-
tion cards signed by a majority of the employees in an appropriate unit.
2. Whether Respondent's refusal to meet with and to reply to the formal recogni-
tion requests of the Union constitutes evidence of bad faith.
3. Whether Respondent committed any or all the numerous acts of coercion
alleged.
4. Whether Respondent is responsible for the alleged coercive conduct of John
Blackmon.
I The original charge by the Union was filed on December 22, 1965, and served on
December 23, 1965 Thereafter, an amended charge was filed and served, respectively, on
January 21 and 24 , 1966 . The General Counsel's complaint thereon was Issued on
February 4, 1966.
2 Joy Silk Mills, Ine, 85 NLRB 1263, enfd 185 F 2d 732 (C A D C.), cert. denied
341 U S. 914
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Whether Respondent unilaterally changed its vacation policy and working
rules in violation of the Act.
6. Whether Respondent unlawfully refused to bargain with the Union.
B. The appropriate unit
It is undisputed, and I find, that an appropriate unit for the purposes of collective
bargaining consists of:
All production and maintenance employees at Respondent' s Pine Bluff, Arkansas,
plant, excluding all office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
Respondent contends that four employees, 3 who perform identical cleanup and
watchman functions, should be excluded from the unit as guards. During the week-
days the work of these employees is confined to various cleaning-up jobs in the
plant. On Saturdays and Sundays, when the plant is not in operation, they perform
certain watchman duties in addition to prescribed cleaning chores? Concerning their
weekend watchman duties the following pertinent facts are shown: They punch a
timeclock they carry while making rounds every 2 hours at 6 stations inside and
outside the plant. The property is enclosed by a fence with three locked gates and
a fourth unlocked gate at a railroad siding. A person seeking entry sounds an elec-
trical signal provided at one of the gates. The cleanup-watchman on duty brings a
key, which is kept in the plant, and lets the person through the gate-"if its an
employee or a foreman, anybody that works out there." In cases of doubt or if the
person is unknown, instructions are sought from higher authority of Respondent.
Of those allowed entry, a record is made of their identity, purpose, and times of
arrival and departure. The employees in question wear no uniform or badge, are not
armed, and have no authority to arrest or restrain any person. In the event of dif-
ficulty with an intruder they are supposed to telephone the police or fire depart-
ment. During their employment extending over 4 years, they have never enforced
plant rules against employees, 5 nor ever had occasion to ask any unauthorized
person to leave the plant. Their "instruction calls for watching for fires, specifically,
more than anything else," and they are required to check the gauges indicating the
pressure of the sprinkler system.
On all the evidence, I find that these employees are not guards within the mean-
ing of Section 9(b)(3). They do not enforce against employees and other persons
rules to protect property or to protect the safety of persons on Respondent' s prem-
ises. Their watchman duties are performed when the plant is shut down and nor-
mally no other employees or persons are present. They hold employment essentially
as cleanup men, with partial duties as watchmen on weekends which are merely of
an incidental nature carrying no appreciable authority of a plant guard as con-
templated by the Act.6
With the inclusion of the cleanup-watchmen, and the exclusion of John Blackmon
as a supervisor for reasons subsequently stated, there were 50 employees comprising
the appropriate unit as of the critical dates of the Union 's recognition demands?
C. The Union's majority in authorization cards
Beginning on November 27, 1965, 8 cards were signed by individual employees
authorizing the Union to represent them in collective bargaining . By December 13,
when the first recognition request was made, infra, the Union had obtained from
employees in the appropriate unit 27 valid authorization cards. Additional valid
cards from 9 employees were in the Union's possession when it next presented a
formal demand upon Respondent on December 17; and by January 15 on the basis
3 L. V. Chambliss, Wallace W. Jones, Luther H. Pearson, and Danny D. Kelley.
4 During the weekend, they work particular 8-hour shifts, which are rotated on a
weekly basis.
5 Although required to keep out unauthorized personnel, which may include employees
who are not supposed to report at that time, the cleanup-watchmen were given no direct
instructions relating to employees
6 E.g., United States Gypsum Company, 152 NLRB 624; Heck's Inc, 156 NLRB 760;
Sears, Roebuck and Co., 157 NLRB 32.
7 The size and employee composition of the unit remained materially unchanged at least
through the payroll period ending March 20, 1966.
s All dates are progressively in 1965 or 1966 unless otherwise specified.
VIKING BAG DIVISION 651
.of its repeated and continuing recognition demands, the Union had a total of 41
such cards of the 50 employees in the unit, all properly authenticated and admitted
in evidence.9 Therefore, it is found that at all material times the Union represented
a majority of employees in the appropriate unit.10
D. Respondent's refusal to meet with or to answer the Union
On December 13 the Union's vice president, Wayne E. Glenn, telephoned Ervin
Graham, Respondent's plant manager. He notified Graham of the Union's majority
representation and requested a meeting to afford the Union an opportunity to
prove the same by means of a card check. After discussion of an appropriate date,
upon Graham's suggestion they agreed to meet at the plant on December 17, at
9:30 a.m."
Dated December 13, the following letter, in substance, was sent and received:
Dear Mr. Graham:
This will confirm my telephone conversation with you on Monday, Decem-
ber 13, 1965, during which you agreed to meet with me Friday morning,
December 17, at 9:30 A.M. giving us an opportunity to prove majority status
for our Union.
This will further confirm that [the Union] represent[s] a majority of the
employees of your establishment in a unit consisting of all production and
maintenance employees .
I respectfully urge that [the Union] is the exclusive bargaining representa-
tive....
Because of these facts, I suggest that unilateral changes in rates of pay, wages,
hours of employment or other conditions of employment, would constitute an
unfair labor practice within the meaning of the National Labor Relations Act
of 1947, as amended.
I respectfully urge that these matters be made the subject of negotiation
between the Union and the Company before any such changes are put into
effect.
Sincerely yours,
(S) Wayne E. Glenn
WAYNE E. GLENN
Vice President
O Respondent in its brief challenged the validity of the cards signed by Davis (on
December 8), Timmons (on December 11), Robert Chambliss (on December 15), and
O'Bryant (on December 14), although it made no objection to the admission of these
,cards when offered. Regarding an alleged 8(a) (1) violation, discussed infra, Davis testi-
fied he went to the home of Foreman Hawkins about December 9 or 10 (not recalling the
exact date), whereas in his affidavit given to a Board agent on January 12, he indicated
that this visit was made about a week before he signed his card. Timmons signed and
returned her card, originally dated December 13, to employee Trammell. As both testified,
Timmons thereafter promptly telephoned-Trammell requesting that she redate the card
to reflect the accurate date of December 11-which was done Robert Chambliss testified
that, in response to an interrogation by Supervisor Geuin concerning the Union, con-
sidered infra, he stated that the Union "already got 70 percent signed up." Manager
Graham testified on cross-examination that O'Bryant advised him that a union agent told
O'Bryant "he may as well sign, they already had 70 percent, or the majority of the
people signed up." As to the cards of Chambliss and O'Bryant, Respondent now argues
that the Union engaged in a "calculated and coercive misrepresentation." O'Bryant, in his
cross-examination, effectively denied that he made such a statement to Graham (which,
even if made, would not evidence any material misrepresentation. Merrill Engineering
Laboratories, 158 NLRB 1108). However, I credit O'Bryant and not Graham. Respondent's
contentions as to all four cards are rejected as devoid of any substance. It is noted, fur-
ther, that Respondent adduced no evidence (beyond that aforementioned relating to
O'Bryant) to support the position in its answer, supra, that the union agents engaged
in coercion and misrepresentation in securing cards from employees.
Is The Union's majority status is evident even on the basis of Respondent's unit con-
tentions, since valid cards were signed by two of the cleanup-watchmen (Chambliss and
Kelley).
u Graham's testimony that Glenn suggested this date and time and that Graham merely
said "it was possible if I was in"-is not credited.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 17, when Glenn and Union Representative C. L. Hughes appeared
at Graham's office to keep the appointment, they were told by the receptionist 12
that Graham was not available to meet with them.
On December 17 Glenn wrote Graham that he kept the appointment set for
December 17 "to prove by a card check" that the Union represented a majority of
the unit employees, again requested a meeting for the same purpose, and suggested
the afternoon of either December 20 or 21.
On December 21, at 2:10 p.m., Glenn and Hughes came to the plant. They
asked to see Graham, stating that it was "very important," but were informed by
the same receptionist that Graham was unavailable to meet with them. They left a
telephone number and asked to have Graham call. That afternoon, Glenn and
Hughes sought to encounter Graham in the Pine Bluff locality. About 4 p.m. they
saw and approached Graham in the company of another man emerging
from a cafe towaid an automobile. Glenn introduced himself and stated that the
Union wanted an opportunity to prove it represented a majority of the employees.
Graham refused Glenn's proferred hand, said something which was inaudible to
Glenn, entered the car, rolled up the window, and departed.
On December 22 Glenn sent Respondent a telegram which confirmed that on the
previous day he made offers to prove majority status, stated that charges against
Respondent were filed with the Board that day, and continued the offer to prove
majority by card check.13
By wire on December 29, the Union again notified Respondent that it was the
designated majority representative.
At no time did Respondent attempt to meet with the Union or to respond in any
way to the Union's repeated requests.
The foregoing stands virtually unrefuted The employer petition filed by Respond-
ent on January 13, supra, was dismissed by the Regional Director, in view of the
unfair labor practice charges of the Union. Graham testified that he personally
made the decision not to recognize the Union precisely at the time the Union pre-
sented its initial demand on December 13. While he asserted on the stand that
there was a doubt in his mind, he admitted that he had no reason to believe "one
way or the other" the Union's claim of majority representation. He averred that he
told none of his superiors at the parent company in Chicago of the Union's formal
demands for recognition-until December 29 or 30.14
I have found Graham wholly unreliable as a witness and do not credit his testi-
mony, apart from admissions.15
In its brief, Respondent argues that Union Agent Glenn's "assiduous pursuit" of
Manager Graham, who "was totally inexperienced in labor law and was attempting
unwisely but not in bad faith to survive without help . gives rise to the strong
inference of bad faith on the union's part and attempted entrapment by avoiding
the simple and plausible action of filing a petition under 9(c) of the Act and
harassing Respondent for recognition " Factually, there is utterly no basis for such
a claim of harassment and entrapment, even assuming its relevance to the issues.
Indeed, the asserted position cannot be regarded as other than frivolous and cap-
tious in the actual circumstances. For the converse has been shown to be true-
that Respondent was engaging in a studied avoidance of the Union. It was entirely
proper for the Union to repeat and press its demand to be recognized as majority
representative, and it was not bound in support of its agency claim to furnish
13 Identified as Dorothy Ponder
13 The written communications of December 13, 17, and 22 indicated in each instance that
a copy was forwarded to the Board's Regional Director
14 Elsewhere in the record it appears that Graham was in close communication by tele-
phone and memorandums with the Chicago offices and particularly with II W Garbei5,
general manager, of Shurfine-Central Corporation, and that the Pine Bluff plant was being
regulated from Chicago litter aria, Graham testified that during the 4 years of the plant's
existence, he heard rumors of union actisity "a couple of times" each year, and that he
had mentioned these to Garber.-. In the Instant situation, he cloarly contradicted himself
by stating that lie first learned of the Union's drive early in December but told "no one
whatsoever" In Chicago until the latter part of December , then lie Iatei testified that
he had informed Garbers by telephone at the time he first learned about the Union
15 Generally throughout his long testimony, there was a considerable amount of leading,
despite rulings and cautionary comments by me In other respects, as noted herein,
Graham's testimony was found seriously deficient and unacceptable
VIKING BAG DIVISION 653
certification upon a Board election.16 For its part , in response to the Union,
Respondent expressed no doubt regarding majority status , nor intimated that it
desired any proof by Board certification or in any form . It did deliberately fail to
keep the initial appointment it made with the Union and thereafter chose to resist
and ignore all of the Union 's various approaches and communications seeking a
basis for obtaining prompt recognition as the employees ' bargaining agent.
It is, of course , the General Counsel's burden in this type of case to prove not
only that a majority of the employees in the unit signed authorization cards but also
that Respondent acted in bad faith when it refused to recognize and bargain with
the Union . And "usually" such bad faith is established upon evidence of a complete
rejection of the collective -bargaining principle or of a desire to gain time within
which to dissipate the Union 's majority.17 In general , the determination of good or
bad faith in such situation must be made in light of all the relevant facts in the
record.18 Certainly , a relevant factor to be considered here is Respondent 's conduct
in refusing to meet with or reply to the formal requests of the Union.19
E. Restraint and coeicion
1. Plant Manager Graham
(a) Edward O'Bryant testified concerning two conversations with Graham in the
plant warehouse , as alleged in the complaint . On December 11 or 12, Graham
inquired if "the union man had been to his home." O'Bryant answered negatively,
following which Graham stated , "He will be." Asked how he knew , Graham said
that the union man "had already been to several employees ' homes." O'Bryant was
then requested to let Graham know if the union agent came by his house, and he
replied that he would.
(b) About December 15, after O 'Bryant had signed an authorization card,
Graham asked if "the union man" had been to see him yet. O 'Bryant said he had
not. Graham stated, "Well, if he does , if you hear anything keep your eyes open." 20
2. Foreman Morris Wayne Geuin 21
(a) On December 11, at Respondent 's annual Christmas party held at a country
club, Geuin asked Robert Chambliss if be heard anything about a union trying to
16 United Mine Workers of America v. Arkansas Oak Flooring Co , 351 U . S. 62, 74-75;
N.L R.B. v. Trimfit of California, Inc., 211 F.2d 206, 209 ( C.A. 9).
17 John P. Serpa, Inc., 155 NLRB 99
1s Aaron Brothers Company of California, 158 NLRB 1077
19As shown , the Union in fact had a clear majority of valid authorization cards when
it made its demands upon Respondent . Aside from any consideration of common business
courtesy , a serious question is raised whether the statutory and public policy in further-
ance of collective -bargaining procedures makes it obligatory upon an employer reasonably
to receive and respond to an initial recognition request of an established union. How-
ever, in view of the additional elements present in the case, it is unnecessary for me
specifically to hold that Respondent ' s absolute refusal to answer or meet with the Union
in these circumstances in and of itself violated Section 8(a) (5). See, for example, Action
Wholesale Co., Inc, d / b/a A L . French Co , 145 NLRB 627 , 637, enfd. 342 F.2d 798
(C A. 9) ; Lone Star Co , 149 NLRB 688, 701 ; Elmira Machine it Specialty Works, 138
NLRB 1393 , 1401-02 And cf. James H. Matthews it Co v. N L.R B ., 354 F . 2d 432, 439
( C A. 8), enfg. 149 NLRB 161.
20 Graham ' s denial that he had these two conversations with O ' Bryant is rejected. On
cross-examination , O'Bryant testified to it third conversation (see footnote 9, supra),
which took place in Graham ' s office This discussion related to a visit to O'Bryant's home
by Union Agent Hughes during which Hughes wrote out an address where he could be
reached for O'Bryant O'Bryant estimated the date of his conversation in Graham's office
as occurring between the two conversations described in the text and before he had signed
a card on December 14 However, he was unsure of this date , and, from the nature of
the conversation he had with Hughes, it would more plausibly appear that he had then
or previously signed the authorization card. Contrary to Respondent , I would not discredit
O'Bryant for this discrepancy.
21 Respondent affirmatively states in its answer , and I accept , that Genin is "Assistant
to Manager ." Geuin himself denied that he holds such a position although his testimony
shows that lie substitutes for Graham in the latter ' s absence ; that lie was in "complete
charge of plant" during Graham ' s 2 weeks' vacation , that he carries out Graham ' s Instruc-
tions which are channeled through him to other supervisors ; and that he has regular
duties above and beyond that of a shift foreman. Graham also testified that Geuin was
merely a shift foreman.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come into the plant. Chambliss replied that he had. Geuin said he did not think it
was "going to go over." Chambliss stated that the Union already had "70 percent
signed up." Geuin then remarked, "Well, just between you and me, . I know
who started it and what shift they work on . I don't think you had anything
to do with it." At this point Chambliss indicated he could not talk to Geuin about
the subject-that perhaps Sherman Peacock, sitting nearby, could tell him some-
thing. Geuin then asked Peacock, "What do you know about it?" Peacock shook
this head and left the table.22
(b) About December 15 or 17, in the presence of Billy Taylor and Deva Adair,
Geuin stated that he hated to see the Union come in because he felt that it would
take away some of the employees' privileges.23
(c) In mid-December, in the canteen area , Geuin stated in the presence of
several employees, including Dean Crosby and Adair, that he hated to see the
Union come in because it would take away some of the employees' privileges.24
3. Foreman Lloyd Carter
(a) On December 11, at the country club Christmas party, Carter asked Leonard
C. Morgan if he had heard anything about the Union and was answered in the
negative. Carter said he would like to know who got it started. Morgan replied that
he had no idea.25 Morgan had signed a card on December 7.
(b) In the week of December 13 Wanda Burr received a telephone call at her
home from Carter. He was getting some personal information and was not speaking
for the Company. There was a rumor that the Union was trying to get in, and he
wanted to know if she had heard anything.about it. She said no. Had she signed a
card? She said no. Did she know anyone else who had? She said no and that she
would not tell him if she knew. He then said, "Wanda, you know that if the union
gets in, the plant will be integrated." 26
4. Foreman Billy' Gene Hawkins
(a) About a week after December 1, in the plant, Samuel Mercer was asked if
"the union man" had contacted him yet. Several days later, Hawkins asked him the
same question. On both occasions, the answer was no21 Mercer had signed a card
on December 1.
(b) About December 10 Jimmy H. Davis came to Hawkins' home for a social
visit. At the door, Hawkins said he was' "just fixing" to go to Davis' house, as
he had "heard something about a union coming in at the plant." Davis answered
that he knew nothing about it. However, his card was signed on December 8.28
(c) In mid-December, Hawkins called Davis aside in the plant and said , "Jimmy,
I thought we wasn't going to have anything to do with that union." Davis denied
that he had. Using a "kind of profanity word," Hawkins then stated that "if a
union come in out there that the plant would be shut down, and if that didn't
get it, the plant would be integrated."
(d) About a week after he signed his card on November 27, Sherman Peacock
was asked if any "union men" had been around to talk to him. He said he knew
22 Geuin's version was substantially similar, except that he did not question Peacock.
Geuin admitted that , despite his statement to Chambliss , he did not actually know "'the
man that brought it into the plant." He also revealed that he told Graham of Chambliss'
statement that the Union had 70 percent signed up.
23 Geuin testified that all he said was that he hated to see the Union collie into the
plant. Adair was not called.
24 Geuin testified he had only remarked , upon Adair's complaint regarding the State
withholding tax, that with the union dues coming out there would hardly be anything left.
zs Under Carter ' s version , he said he understood that the man carrying the cards was
not on his shift, and he hoped "whoever 's having anything to do with it" was not from
his shift.
20 Carter denied saying anything about plant integration , but admitted that he had
questioned Burr generally about "the union activity " and had asked "if the NAACP was
working with them."
27 Hawkins did not recall the second conversation.
28 In a pretrial affidavit to a Board agent , Davis indicated that the conversation occurred
a week before he had signed the card, but on the stand credibly explained that his testi-
mony was correct and that he had been mistaken as to the date given in the affidavit
Hawkins himself fixed the date in the second week of December.
VIKING BAG DIVISION 655
nothing about it. A week or so later, Hawkins asked the same question and received
the same answer.
(e) About a week or so before Christmas, in "the foreman 's office," Hawkins
remarked to Peacock that Peacock and Jeff McMurtrey were going to have to go
in the Army before long, and if the employees voted the Union in, they might not
have a job when they got back.29
(f) A little after December 15 Jeff Davis McMurtrey, Jr., came into the canteen
area and overheard Hawkins talking to Bob Worthen. Hawkins said that if the
employees voted the Union in while McMurtrey and Peacock were away for 6
months on training duty with the Army, they "may not have a job" when they
returned 30
(g) As he was leaving the canteen area, Hawkins remarked to McMurtrey-
"We sure don't want a union in here because we'll lose what privileges we already
have."
(h) On December 22 a Christmas party for the shift was held in the plant. It
was the practice for the female employees, who brought food, to fix platters which
were carried to the Negro employees in the warehouse. McMurtrey had heard that,
on the previous shift, the Negro employees "would not take their dinner," and he asked
Hawkins about it. Hawkins said, "Well, that's the union working for you . . . If
the union comes in . . . the Negroes will be working right beside you." 31
5. Warehouse Foreman Jake McLemore
(a) On December 12 McLemore asked U. Z. Williams whether "the union
man" had been to his home yet. Williams replied he did not know as he had not
been at home. His card was signed on December 14.
(b) On December 13 McLemore asked Lloyd Smith the same question. Receiv-
ing a negative response, McLemore said, "Well, if he follows the same procedures
he will get around to you." Asked if he knew who it was, McLemore said yes.
Smith had signed a card on December 8.
(c) On December 15 Relis E. Eastmen was also asked this question, and he
replied affirmatively.
(d) On December 18 the same question was put to Orelious H. Henderson
who answered yes. McLemore then asked if it was Hughes "or the other one," and
if he had any cards. Henderson replied that the union man, whose name he had
forgotten, had one card in his pocket and had said that he had "the majority of
the people." 32
(e) About December 21, in the warehouse smoking area, McLemore asked
O'Bryant if he had heard anything about the Union. O'Bryant said no-"no more
than I heard the union was coming in." McLemore was then asked what he thought
of the Union, and he stated, inter alia: "I hope you fellows realize that you might
get cut short of your 40 hours where we let you stay around and clean up and
sweep . . . . You might not be able to do that if the union comes in." O'Bryant
was also questioned as to whether he had seen or talked to "the union man," and
he answered that he had not. His card was signed on December 1433
Section 8 (a)(1) findings in part
The various statements and conduct of Respondent, above described, were
engaged in by all of the admitted supervisors, but one ,34 during the critical period
a Hawkins testified that Peacock came to him about the matter, and he told Peacock
to "get an understanding" with Manager Graham "before he joined anything."
So Hawkins gave the version that Worthen came to him in the presence of Peacock and
McMurtrey and asked if "these two boys" would have a job after coming back from the
service, and that he answered if the Union carne in there would be a lot of changes, and
even if Graham said they could come back, "it might be that Graham might not be here
when they came back "
31 Hawkins had no recollection of a conversation concerning the Union that night He
testified merely that McMurtrey commented "about the colored people not taking their
supper," to which he said-"It looks like they're following suit , they didn't do it on the
other shifts, either
3i McLemore admitted that he questioned Smith, Williams, Eastman, and Henderson
3 McLemore's testimony was confined to a conversation with 0 Bryant aroumi Deceni-
ber 13 or 14, in which he asked whether the union man had been b3 to see him and
O'Bryant said yes
S4 Supervisor Foote, in charge of the machine maintenance crew
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union's organizing campaign, immediately preceding and following the
first recognition request of December 13. There can be no doubt under the cir-
cumstances that Respondent was consciously embarked upon a broad-gauged
course of coercing the employees in an effort to defeat the Union. The specific
violations which Respondent committed may be identified, as follows:
Duect or implied threats relating to the Union: That the employees would lose
company privileges-made by Geuin at separate times to Taylor and Crosby; and
by Hawkins to McMurtrey. That the plant would be shutdown-made by Hawkins
to Davis. That their jobs would be lost upon return from military service-made
by Hawkins on separate occasions to Peacock and McMurtrey. That working hours
would be cut-made by McLemore to O'Bryant.
Cieating impression among employees that their union activities are under
surveillance-by Graham to O'Bryant; Geuin to Chambliss; and McLemore to
Smith.
Request to iepoit on union activities of other employees35-in two instances by
Graham to O'Bryant.
Coercive interrogation: These were not innocent, casual discussions of a subject
of common and current interest. The evidence plainly reveals a widespread and
systematic pattern of the same type of interrogation by substantially the entire
supervision. In various ways, the information sought by the questions would be
revelatory of the particular employees sentiment toward the Union in a general
atmosphere of employer hostility. Other unfair labor practices, including serious
threats, were contemporaneously being committed. That the employees were affected
by restraint and fear is well shown in the untruthfulness of the many negative
replies to the questions. No valid purpose was put forward or is conceivable for
these extensive interrogations; and their coercive effect upon the employees reason-
ably tends to flow from the action.36
Threats to integrate the plant-made by Carter to Burr; Hawkins to Davis;
and by Hawkins to McMurtrey. The record reflects that a relatively small number
of Negros are employed in duties confined to a warehouse. In substance these
employees were told that if the Union came in, the plant would be "integrated,"
and the colored employees would be permitted to work alongside the white
employees, in the same departments and functions. These utterances cannot be
viewed as isolated or unauthorized as they were repeatedly given voice by fore-
men 37 who are statutorily responsible spokesmen for management-at least in
terms of impact on employees. Inherent in these statements is the admission that a
practice of segregation exists at Respondent's plant with respect to the employment
conditions of Negroes, and a warning that the practice would be eliminated if the
Union were allowed to succeed in its organizational effort. The ultimate decision
of continuing or abolishing this practice lay with Respondent, not with the Union.
The same result will follow whether the statements are construed as a prediction
that Respondent would yield to the Union's collective-bargaining demand for
integration of the plant,38 or as direct threats that on its own initiative, Respondent
would desegregate the plant upon the advent of the Union.39 That the threatened
action, if taken, would literally produce a laudable and lawful result does not
diminish its coercive character in the circumstances present. Obviously it was not
Respondent's purpose in these statements to promise conformance with the national
policy which forbids discriminatory employment practices for reasons of race.40
Palpably, these statements constituted a reprehensible exploitation of racial prej-
udice. Their sole design was to coerce the employees in regard to their organiza-
tional rights under Section 7, and they reasonably tended to have such effect. As
such, they flagrant violations of Section 8 (a)( 1)41
36 E.g., Colony Furniture Co , 156 NLRB 728.
38 E g, N L R B. v. Cameo, Incorporated, 340 F.2d 803 (C A 5) ; N L R B v The Lorben
Corp., 345 F.2d 346 (C A 2) ; Operating Engineers Local Jig v N L R B , 353 F 2d 852
(C A D C) ; Bourne Co. v. N L R B., 332 F 2d 47 (C A 2) ; Blue Flash Express, 109 NLRB
591; Cannon Electric Co , 151 NLRB 1465.
37 See also the similar statements of John Blackmon, infra
38 Boyce Machines y Corp , 141 NLRB 756, 762-763
39 Petroleum Carrier Corporation, of Tampa, 126 NLRB 1031, 1038-39.
40 Civil Rights Act of 1964, Title VII, Sec. 703, 78 Stat 255
41 General Steel Products, Inc, 157 NLRB 636, Certain-Teed Products, Inc., 153 NLRB
495; Atkins Saw Division, Borg-Warner Corporation, 148 NLRB 949; Empire Manufactur-
ing Corporation, 120 NLRB 1300, cf. Sewell Manufacturing Company, 138 NLRB 66, 71-72.
VIKING BAG DIVISION 657
Without more, the above-found violations amply demonstrate Respondent's bad
faith in refusing to recognize and bargain with the Union within the criteria
of the Joy Silk Mills, Serpa, and Aaron cases, supra. Reinforcing this conclusion
is the evidence, earlier discussed, of Respondent's absolute refusal to meet with the
Union or answer its formal requests. As thus far reviewed, Respondent's conduct
effectively refutes its belated expressions of doubt of the Union's majority and its
references to the preferred reliability of a Board election; it exposes rather a
motivation which completely rejects the collective-bargaining concept of the Act.
F. The supervisory and agency status of John Blackmon
Evidence and argument have been presented to a degree considerably more than
necessary for adequate litigation and disposition of this issue. A good deal of the
evidence, though generally relevant, is of a secondary character as to which any
detailed treatment would only serve to burden this Decision.
A brief background: Operating in the machine room around the clock on week-
days are three shifts, designated A, B, and C, which rotate weekly.42 On each
shift, consisting of about 15 employees and specific foreman, the functions per-
formed in the respective positions are virtually identical. In early May 1965, the
foreman of the B shift, Harvey Mann, left the employ of the Company. Blackmon
was then transferred to the shift from his job of machine operator on A shift.
Geuin, assistant to manager, told the B shift employees, in substance, that he
would be acting foreman while Blackmon was in training for about 60-90 days,
or for "an adequate time." The testimony is conflicting as to whether Geuin said
Blackmon would be in training to "take over" the shift, or for the job of junior
adjuster,43 or both. Geuin testified that, until about August 1, he devoted full
time 44 to the B shift. Thereafter, as appears, he worked days in the office and
sharply curtailed the amount of time he spent with the B shift. Commencing at
such time, Blackmon was alone in authority on the B shift during the great majority
of its operating hours. For example, during the graveyard shift, from 11 p.m. to 7
a.m., Geuin visited the shop only in instances when Blackmon called for his
assistance 45 in adjusting a machine in disrepair.46
In my opinion, there is an abundance of evidence establishing the entire respon-
sibility of Respondent for Blackmon's conduct during the Union's campaign. It is
sufficient to indicate the following principal factors: 47
(1) While Blackmon was in sole charge of the B shift, the employees were not
under close, continual control of other or higher supervision.48 (2) His functions
are virtually the same as those of the B and C shift foremen, who are admitted
supervisors.49 (3) The prepared schedules of machine operation and processing
orders did not obviate the need and exercise of responsible direction of the shift
employees. Among other things, Blackmon in certain circumstances assigned and
transferred machine tenders and balers to particular machines; instructed operators
42 Two additional departments, with separate foremen, consist of the warehouse and the
maintenance crew. The cleanup-watchmen are assigned to particular shift foremen
43 A skilled mechanic primarily concerned with the adjustment and efficient mechanical
operation of the machines used in the manufacture of paper bags
44A number of employees estimated this full-time period as coveting about 1 to 2
months from May 14.
45 Since early January, however, on several occasions Geuin cane to B shift at night
for an hour or two without having been called by Blackmon.
Olt was a general practice for the foremen to assist each other in making adjustments
and repairs when there was difficult machine trouble
47 There is no other person in the plant with such title as adjuster or junior adjuster,
and it was not shown that the employees were informed or knew the content and
authority of such classification. (Cf. Luckenbill's uncontradicted testimony that Graham
told him in 1962 that machine operators were junior adjusters.) However, it is immaterial
whether, as Respondent strenuously argues, Blackmon was being trained as a junior
adjuster, in view of the independent evidence of his supervisory and agency powers
48 E.g , N.L R B. v. Greenfield Components Corporation, 317 F.2d 85 (C.A 1), enfg 135
NLRB 479; N L.R B v. Inland Motor Corp of Virginia, 322 F.2d 457 (C.A. 4), enfg.
138 NLRB 516, Keener Rubber Inc, 138 NLRB 613, enfd. In part 326 F.2d 968 (C.A. 6) ;
Sehon Stevenson Co„ Inc., 150 NLRB 675; West Virginia Pulp and Paper Co., 122
NLRB 738.
4B Bauer Welding & Metal Fabricators , Inc., 154 NLRB 954.
264-188-67-vol. 161-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which print orders to run and when to blow off the machines; let the machine ten-
ders go home early when the machines were shut down 20 minutes before 11 p.m.
on Fridays for "weekend cleanup"; ordered employees to perform miscellaneous
tasks such as cleaning up; and summoned employees away from their stations to
interview them. The employees were fully expected to and did obey his orders.50
(4) Employees came to him with requests for time off, which he granted. (I find
incredible, and in conflict with the Manual, Geum's testimony that, when he is
absent from B shift, and employee who is sick simply goes home without asking
permission.) (5) As did other foremen, he handed out the paychecks to employ-
ees and they come to him to have their timecards corrected and initialed 5i (6)
Within the awareness of higher management, Blackmon made out "Performance
Reviews" of the shift employees, interviewed and explained these to the particular
employees and signed his name on each form as "Supervisor." 52 In other respects
he held himself out to the employees as a supervisor. (7) Within Respondent's
knowledge, the employees made out daily "Machine Running Reports" in which
Blackmon's name was regularly entered as "Foreman." Some dozen employees
testified that they regarded Blackmon as their foreman, and no employee was
produced in controversion 53 Nor was any effort made by Respondent to dis-
avow such apparent authority.54 (8) As will be shown, Blackmon conveyed to the
employees, as emanating from management, numerous and grave threats relating
to the Union which are undenied, and many of which closely resembled the
unlawful conduct of Respondent earlier found 55 Manager Graham admitted that
he was aware of certain of Blackmon's activities and did nothing to repudiate
such conduct.56 (9) Significantly, though Blackmon was available in the hearing
room, Respondent did not put him on to testify regarding his supervisory and
agency authority, or as to what transpired between his superiors and himself
regarding his unlawful conduct during the union campaign.
I conclude that Blackmon was a supervisor within the meaning of the Act and,
in any case, that he had actual or apparent authority as an agent of Respondent
in the commission of the unfair labor practices found hereinbelow.
G. Additional 8(a) (1) conduct
On December 10 Blackmon summoned the B shift employees, individually,
into "the foreman's office."
He asked Crosby if he had "heard anything about the Union, or if anybody
had visited him." He told Crosby that Manager Graham had heard that the Union
lacked one card in having 70 percent of all the employees signed up, that Graham
knew who was behind it, and that "they would be dealt with accordingly." Upon
Crosby's response that he had not heard anything, Blackmon indicated that the
"company knew the Union was coming in."
He asked Hall if she had heard anything about the Union coming in, and any-
body had contacted her. He stated "Well, if the Union came in that the plant
would have to hire more niggers, and that it wasn't for anybody but niggers, and
that a lot of people would be fired or lose their jobs over it." Quoting Graham,
he also said that Garbers 57 would shut down the plant if the Union came in.
He asked Wallace if he had signed a card. Then he told Jones that if the Union
came in, "the machinery would be integrated," and also "that the plant would
close."
'' Sin1,o Manufactiu n7 and Tool Conipani, 149 NLRB 206
m Ertel Atanntactui ins Corp . 147 NLRB 312
15° Badenbausen Corporation, 113 NLRB, 867
r' Southland Paint Company, Inc, 156 NLRB 22
04 Betts Baking Company. 155 NLRB, 1313 Walsh-Lainplin Wholesale Ding Company
129 NLRB 294
GS Daniel Construction Co v Al L R B . 341 F 2d 805 (C k 4), enfg in part 145
NLRB 1397
'-One interesting position of Respondent is that the B shift employees, allegedly in-
cluding Blackmon, were adequately supervised solely by 6:euin whole he was not phv,i-
cally present On such theory. Geuin would presumably know of Blackmon's coercive
practices imparted pervasively to the entire shitt complement, particularly in summoning
individual employees away from his or her work station to engage in such conduct, infra
cv General Manager Gathers, who was present in the hearing room, was not called to
testify on any of the matters in connection with which he was directly or indirectly in-
volved in the testimony herein.
VIKING BAG DIVISION 659
He asked Luckenbill if he was in favor of the Union. Hearing a negative reply,
Blackmon remarked, "Well, you're the fellow I'm looking for." He also referred
to Garbers as having made the statement that Respondent had "made arrangements
with other plant to make the bags because if we went union they would shut
the plant down." He then asked Luckenbill if he intended "going union," and
was answered-"not if I can keep from it " Thereupon Blackmon iequested,
"If you hear anything let me know, I would like to know who it was that got it
started." He wrote Luckenbill's name on a yellow tablet followed by the word
"no." 58
He asked McClellan if he had heard anything about the Union, and noted on the
tablet that McClellan "hadn't heard anything."
He asked Blalock if she had knowledge of anyone trying to organize a union,
and stated that several people had been signing cards.
He told Billy Taylor "that the Company heard they were trying to get the
Union in, and that according to the union man they had 70 percent already
signed up." He asked Taylor if he knew anything. He also made the statements
(a) that the Union "would hurt us and take away some of our privileges," (b)
that if the Union came in "we would probably have to start paying our own
insurance," (c) that "Mr. Garbers had told Mr. Graham that if the union came in
they would probably have to close the plant," and (d) that "Graham said we
would have to integrate the plant." About an hour later, in Blackmon' s presence,
employee Adair told Taylor that she was going to ask all the girls if they had
signed cards. Taylor said it was none of her business. Blackmon then told Adair
to go ahead and ask the employees if they had signed union cards.
He told Trammell that Graham had heard that a union was trying to organize
the plant, and he asked her if a union agent had been by to see her or if any
other employee had spoken to her about the Union.
He asked Weatherly if she knew anything about the rumors that the Union
was trying to organize the plant. She said she did not want to break the promise
she made (not to reveal information about the Union) unless she "had to if it
meant her job." Blackmon stated that he was against the Union and "so were the
rest of the bosses." He said that, if the Union came into the plant, "there would be
stricter working conditions and some people would be out of a job." He said
that, for one thing, the employees would not have as many breaks, and they
would not be as long. He asked her if she had spoken to anybody that had signed
a card, and she said she did not know of anyone. He also said "something about
if the Union got in that we would work beside colored people . . . that now they
were working in the back, and if the Union got in they would be working up there
with us."
He asked Williams if she had been contacted yet by "the union man," and
said that the Union lacked a few cards from having 70 percent. He wanted her to
let him know if anyone approached her about the Union. He stated that "he
was strictly against the Union, that Mr. Graham was against the Union, and that
if the Company found anyone that had signed a card that they were fired and
that Mr. Garbers had stated that he would close the plant before he would let
a Union come in."
He asked Wiley Taylor if he heard anything about the Union, and whether he
"was for it."
Accordingly, it is found that, through Blackmon, Respondent committed serious
violations of Section 8(a) (1) : by the systematic interrogation of employees concern-
ing their union activities; 59 by instilling in the employees the impression that their
activities were under surveillance; by requesting and encouraging them to report on
the activities of their fellow employees; by threats of discharge, plant closure, stricter
working conditions, loss of privileges, and loss of the benefit of company-paid in-
surance; and by threats to "integrate" the plant, or to allow Negro employees to
work together with white employees in the same functions and departments.
Patently, these additional unfair labor practices of Blackmon substantially bolster
the earlier finding made herein that Responden's refusal to recognize and bargain
51 Blackmon testified specially with respect to a subpoena daces tecum, served upon him
by the General Counsel to produce these notes He admitted that he had made the notes.
that he had related their substance to Manager Graham, but had throi%n them away
5B It is noted that all but one of the aboNe employees ans« ered the queries negatively,
that most of them had actually signed cards prior to December 10, and that the others
signed thereafter.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union was motivated, in bad faith, by a rejection of the collective-bargaining
principle and by a desire to destroy the Union's majority status. Accordingly, it
is concluded that Respondent violated Section 8(a)(5) of the Act.
H. Change in vacation policy
Dated January 1 , a notice was posted on the bulletin board listing the vacation
schedule "for the year 1966." The employees were notified that they would have to
take the first week of their vacation during the period from July 1 to 10, and their
second week from December 22 to January 2, and that "during these vacation pe-
riods the plant will be down." During the December shutdown, only those employees
eligible for 2 weeks of vacation would be paid for the time off. Theretofore, the
,employees had been given their choice of vacation periods.
In its answer to the complaint, Respondent states that it changed is "vacation
policy" to provide for two periods of plant shutdown pursuant to determination
which it made in July 1965 to coordinate Respondent's operations with those of
the papermills which furnish its paper supply, and that "the alternative vacation pol-
icy had long been published and was well known" to the employees. The "Employ-
ees Manual," published in 1963, contains the statement:
Employees should be aware of the possibility of a plantwide shutdown for a
week's duration, perhaps over the 4th of July, and again during the Christmas,
at which times all eligible employees would be asked to take their vacations.
Graham testified that the papermills are shut down around Christmas and early
July and that Respondent has had to shut down during these periods because its
supply of paper was cut off. However, he testified more specifically that, since the
plant's inception in 1961, it was shut down around Christmas time in 1962, 1963,
and 1965 for a period of 7 to 10 days, but did not indicate the times and duration
of plant closures in July. In any case, it is clear that the employees were not asked
to take their vacations in the past during any such periods that the plant was shut
down
Respondent contends that the new vacation policy was adopted by Respondent
earlier in 1965, before the advent of the Union. Its purported proof consisted of
Graham's testimony and memorandums from his notebook in his handwriting. Relat-
ing to meetings he had with General Manager Garbers, a leaf from his notebook,
dated April 25, merely states-"Give Consideration to Closing down at Xmas."
Another note on July 13 indicates-"Vacation shut-down time-1 week of July.
Possibly Xmas Week." The note on July 13 scarcely reflects any clear decision to
institute the changed policy; nor is it corroborated by evidence of any action taken
at that time. I am unable to credit Graham's further testimony that the supervisors
were told of the new vacation policy at a staff meeting in September and that notice
would be posted the first of the year 1966. None of the supervisors who testified
was questioned about the matter and, curiously, the employees themselves were
given no inkling of the change prior to the posting of the notice in January.
The circumstances were the same throughout more than 4 years of Respondent's
operation. No reason was shown why it was necessary to announce the change on
January 1 requiring employees to take their vacations at these specific times for
the year 1966 but not in any of the past years. Significantly, if a firm decision had
been made in July, as Graham asserts, it is not explained why the new policy could
not have been put into effect for the 1965 Christmas, during which there was actu-
ally a plant shutdown.s° Additionally, the timing of the announcement on January 1,
after the Union's recognition request and contemporaneous with the indicated coer-
cive practices by Respondent, must be viewed as bearing upon Respondent's
motive.ei I am constrained to find that, as alleged, the announced change in vaca-
tion practices was intended to discriminate against the employees , or had the natural
and foreseeable consequence of discouraging their union activity-thereby violating
Section 8(a)(3) and (1) of the Act. Furthermore, this decision to change working
11 No contention was made or evidence adduced that vacations are accorded on a calendar
year basis, or that any unfair effect would result from a mid-year application of such a
changed vacation policy.
81 While the General Counsel and the Respondent speak in terms of a change in vaca-
tion "policy," it is only evident , as noted, that the announced change was related to the
year 1966.
VIKING BAG DIVISION 661
conditions was made by Respondent unilaterally without fulfilling its obligation to
bargain with the Union as the employees' exclusive representative, and thus violated
Section 8(a) (5).62
1. Change in work rules
The complaint alleges that, about February 13, Respondent unilaterally changed
its work rules because its employees joined or assisted the Union-by forbidding
employees to smoke in the restrooms and by prohibiting more than one employee
from going to the restrooms or break areas at any one time.
In its answer, Respondent denies that it changed its rules. Affirmatively, it states
that "only one employee each in the classifications of machine operators, baler, and
machine tender is normally permitted to be away from the machines at one time";
that this working rule has been long established and well known to the employees;
that "no smoking" signs were placed on the restroom doors and in the restrooms
used by male employees because of a "requirement" of the State Labor Department
safety inspector; that Respondent's insurance carrier has "stringent rules" with
respect to "no smoking" signs and regulations in paper storage areas; 63 that after
an inspection in early February by the Labor Department and the insurance carrier,
the "no smoking" signs were posted; and that the "Employees Manual" expressly
prohibits employees from smoking in the plant, "except in designated areas," but
that the restrooms are not included as designated smoking areas.64
About February 13 a rule prohibiting employees from smoking in the rest-
rooms 65 was inaugurated by the posting of signs and by verbal orders to the
employees Notwithstanding Respondent's contentions regarding the provisions in
the Employee Manual, it is undisputed that Respondent had knowingly permitted
the employees freely to smoke in the restrooms, and that the new rule in question
constituted a change in this policy. By way of Graham's testimony various reasons
were given in justification of the rule: (1) Employees of a construction contractor
working on an addition to Respondent's warehouse were coming through the ware-
house, while smoking, in order to use the restroom.66 These crew members and their
superintendent were notified several times to stop this practice. However, as of the
hearing date on March 30, the "no smoking" signs were still posted in the rest-
rooms, even though about 3 weeks earlier the construction work had been com-
pleted (2) Inspection of the plant by the State Labor Department takes place every
6 months. On the previous occasions, the inspecter had made no remarks about
smoking. In February, he "commented" that there were open waste containers in
the restrooms which were a fire hazard and "suggested" something be done about
it. In one restroom Respondent had stored paper towels, tissue, paint, and cleaning
fluid. After the inspector's visit these materials were removed. (3) The insurance
inspector looks over the plant every 4 to 5 months and later sends back a written
recommendation on changes. His previous letter contained nothing critical. In
February he "commented" about the construction crew "smoking all through" the
warehouse. However, there had been no notice or letter from the insurance com-
pany as of the time of the hearing.
Contrary to the claim, it is clear that no "requirement" of any kind for the new
rule was indicated by the State Labor Department and insurance inspectors. The
presence of the construction crew was anticipatorily temporary, and their smoking
practices in the warehouse could well have been, and perhaps were, halted by other
means.67
62 E.g., N.L R B v. Exchange Parts Co, 375 U S 405, Caldwell Mfg Co , Inc, 149
NLRB 112; Brennan's Inc, 147 NLRB 1545
03 Respondent's testimony was that the paper storage was located in the warehouse about
30 feet from the restrooms.
04 Thesc positions ale reflected in an amended complaint dated March 16, and Respond-
ent's answer thereto dated March 24
65 Three adjoining restrooms were provided in the warehouse area.
00 The warehouse area, as such, has had "no smoking" signs posted "for some time "
67 Graham did not testify that the construction crew deliberately disregarded the explicit
warnings of Respondent and their superintendent. (Hawkins indicated theme was never
more than one crew member at a time going to the restroom ) Moreover, for this pur-
ported purpose, the "no smoking" signs added to the restrooms, which more directly
affected Respondent's employees, did not significantly add to the signs aheady posted in
the warehouse.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graham and Geuin both firmly testified that, prior to the hearing, the rule against
smoking in the restrooms was not being enforced
Robert Chambliss testified without contradiction to the effect that, about in mid-
February, Foreman Carter notified the operators, inter alia,68 that only one oper-
ator or one baler at a time would be permitted to go to the designated smoking
area or to the restroom.69 Theretofore, no such restrictions were in practice. Cham-
bliss further related that, 2 or 3 weeks after the new orders, two operators were
permitted in the smoking area, if only one of them were smoking. The operators
had no specified "break time," and were mindful that their machines had to be
watched, particularly at times of machine difficulty. They "always" tried to work
it out among themselves and took their breaks when least needed on the machines.
Geum testified that, at a foremen's meeting on February 2, among other things,
Manager Graham ordered the restriction of one baler and one operator within the
designated smoking area Germ said this rule was always in effect, but was not
enforced until February 2 However, he indicated that recently he was aware that
the rule was regularly not being observed, and he stated flatly that the iule is not
now enforced as long as the machines are "running good "
Graham testified that no change was made in existing work rules which prohib-
ited smoking in the restrooms and which forbade two operators or two balers at
the same time from leaving their machines in order to smoke 70 But in mid-February
he decided to enforce these rules as he found that the "costs of operating had bal-
looned up" because of "inattention to production " On request, production records
were furnished by Respondent for the period from June 1965 through Febru-
ary 1966, 71 but the figures were unavailable for the comparable months of Decem-
ber, January, and February of the previous year.
Assuming a causal relation between the operating costs and the necessity to
change past practices by enforcing the work rules in question-the records which
were introduced fall far short of substantiating such alleged "ballooning" of costs
Moreover, there is unrefuted testimony which apparently accounts for a rise in
labor costs in January, i.e., that the machines had been individually shut down for
periods as long as 8 hours to make major repairs, during which time the operators
were being paid
There is no question that Respondent would be fully justified in establishing or
enforcing any reasonable rule which in its subjective judgment it deemed necessary
for the safety of plant property or the elimination of production inefficiency How-
ever, as the very issue here is presented, it would be unlawful if a substantial moti-
vating reason for Respondent's action was to inhibit the employees or take reprisal
against them because of their union activities. In my opinion, the General Counsel
made out a puma facie case by showing material changes affecting the employees'
working conditions at a time of attempted union representation and in a context
of strong union animus by Respondent. Before, during, and after the changes, the
conditions which existed were substantially the same as in past years Whether these
were new rules or decisions to invoke previously unenforced rules, Respondent's
actions were abruptly instituted essentially without any reason given or reason
apparent to the employees, thereby tending to discourage their union membership.
Respondent's affirmative defenses are, in least, greatly exaggerated and unsup-
ported in the evidence it proferred-largely limited to uncorroborated testimony
of Graham The admitted fact that Respondent had again abandoned enforcement
of the rules in question prior to the instant hearing would attest its lack of urgent
need in the first instance. Again, credibility is a factor. In view of the implausibil-
69 At the same time they were told there would he no smoking in the restroone
69 _\TcMiirtrev. ATcClellan, -Morgan and Peacock gave similar testimony of instructions
received fro',? Hawkins, Carter and Coma Tilly Taylor testified that Genin said that two
of the balers or two of the operators could sit in the smoking area, but only one of each
such classification was allowed to smoke
70He stated that there was no rule iestricting lice of the restrooms that no change
was made However, the testimony of numerous emplovees that they were told of such
restriction by their supervisors was not directly contradicted
,'Production figures are
Labor Cost Per Ton of Paper
June 1965 ------- $14 63 September ------- $13 80 December -------- - $14 70
Ju13 ------------ 14 92 October --------- 13 58 January 1966 ____ 16 16
August ---------- 13 52 \ovembei -------- 13 51 February -------- 14 05
VIKING BAG DIVISION 663
ities, exaggerations , and contradictions in Respondent 's defense , and Graham's dem-
onstrated unieliability on other issues, I discredit him here as well in face of the
strong testimony of the employees . I find, rather , that Respondent seized upon the
asserted j ustifications ( e.g , the fire safety inspections and "ballooning " of operat-
ing costs ) as pretexts for restricting the employees and visiting reprisals against them
on account of their selection of the Union-in violation of Section 8(a)(1), (3),
and (5), as alleged.72
IV THE EFFECT OF 1 ,iE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section 111, above, occurring in connec-
tion with the operations of 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 Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take ceitain affirmative action
designed to effectuate the policies of the Act. A broad cease-and-desist order appears
warranted in view of the extensive and serious character of the violations committed,
which indicates a propensity generally to violate the Act 73
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following*
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By instituting detrimental changes in working conditions of employees,
thereby discouraging membership in the Union, Respondent has engaged in and is
engaging in unfair labor piactices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing, and by various other conduct interfering with, restraining,
and coercing employees in the exercise of rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. Since December 13, 1965, and at all material times, the Union has been the
exclusive representative of all employees in the following appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees at Respondent's Pine Bluff, Arkan-
sas, plant, excluding all office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
6. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of its employees in the appropriate unit, and by unilaterally changing
working conditions of employees, Respondent has engaged in and is engaging in
.unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case , it is recommended that Respondent , Viking Bag
Division , Shurfine-Central Corporation , Pine Bluff, Arkansas , its officers , agents,
successors , and assigns, shall.
1 Cease and desist from:
(a) Refusing to bargain collectively with International Brotherhood of Pulp,
Sulphite and Paper Mill Workers , AFL-CIO, as the exclusive representative of all
Respondent 's employees in the appropriate unit described hereinabove.
72 Cases cited footnote 62, supra
,3 N L R B v Laps ess Publishing Company, 312 U S 426. X, L £Z B v Entwistle Mfg
Co. 120 F 2d 532 (C A. 4).
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Unilaterally changing vacation practices or policy, working rules, or other
conditions of employment, without notifying and consulting with the above-named
Union, as the exclusive representative of the employees.
(c) Coercively interrogating employees; requiring or encouraging them to
report on union activities of other employees; instilling in employees the impression
that their activities are under surveillance.
(d) Threatening employees that, if they selected the Union to represent them,
the plant would be "integrated," and Negro employees would be permitted to
work together with white employees in the same functions and departments.
(f) Discouraging membership in International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, AFL-CIO, or in any other labor organization, by chang-
ing its vacation policy, or practices, or employee work rules, or in any other
manner discriminating in regard to hire or tenure of employment or any term or
condition of employment.
(g) In any othe manner interfering with, restraining, or coercing employees in
the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all the employees in the appropriate unit, and embody
in a signed agreement any understanding reached.
(b) Post at its Pine Bluff, Arkansas, plant copies of the attached notice marked
"Appendix." 74 Copies of said notice, to be furnished by the Regional Director
for Region 26, after being duly signed by Respondent, shall be posted immediately
upon receipt thereof, in conspicuous places, and be maintained for 60 consecutive
days. Reasonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in writing, within 20 days
from the receipt of this Decision, what steps Respondent has taken to comply
herewith 75
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, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International Brotherhood
of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the appropriate bargaining unit described below.
WE WILL NOT unilaterally change vacation practices or policy, working
rules, or other conditions of employment, without notifying and consulting
the above-named labor organization as the exclusive representative of the
employees.
WE WILL NOT coercively interrogate employees concerning their union
activities; require or encourage them to report on the union activities of other
employees; or instill in them the impression that their union activities are
under surveillance.
WE WILL NOT threaten employees with discharge, loss of jobs, closing down
the plant, reduction in working hours, loss of privileges, loss of employment
benefits, or with any other reprisal, to discourage their union adherence or
activities.
"In the event that this Recommended Order is adopted by the Board, the words, "a Deci-
sion and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order is 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"
711n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read. "Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Decision, ixhat steps the Respondent has taken to comply
herewith."
BREWERY WORKERS LOCAL UNION NO. 3, TEAMSTERS 665
WE WILL NOT threaten employees that, if the Union comes in, we will
"integrate" the plant, or permit Negro employees to work together with white
employees in the same functions and departments.
WE WILL NOT discourage membership in the above-named or any other
labor organization by changing our vacation policy or practices or by chang-
ing the employees' work rules, or in any other manner discriminate in regard
to hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above-named, or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing,
and to engage in any other concerted activity for the purpose of collective
bargaining , or other mutual aid or protection , or to refrain from any and all
such activities.
WE WILL upon request, bargain collectively with the above-named Union
as the exclusive bargaining representative of all employees in the bargaining
unit with respect to rates of pay, wages , hours of employment, and other
conditions of employment , and, if an understanding is reached , embody such
understanding in a signed agreement . The bargaining unit is:
All production and maintenance employees at the Pine Bluff, Arkansas,
plant, excluding office clerical employees , professional employees, guards,
and supervisors as defined in the Act.
VIKING BAG DIvIsION, SHURFINE-CENTRAL CORPORATION,
Employer.
Dated----------------- -- By-------------------------------------------
(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,
746 Federal Office Building , 167 North Main Street , Memphis, Tennessee 38103,
Telephone 534-3161.
Brewery Workers Local Union No . 3, International Brotherhood
of Teamsters , Chauffeurs; Warehousemen and Helpers of
America and Rheingold Breweries, Inc. and Local 56, Interna-
tional Brotherhood of Firemen , Oilers, and Maintenance Me-
chanics, AFL-CIO. Case 29-CD-28. October 31, 1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of, the National Labor
Relations Act, as amended, following charges filed by Rheingold
Breweries,, Inc., herein referred to as Rheingold or the Employer,
alleging that the Brewery Workers Local Union No. 3, International,
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein referred to as Local No. 3 or the Respondent, had
induced and encouraged employees of Rheingold to strike for the
purpose of forcing or requiring the Employer to assign particular
work to members of Local 3 rather than to members of Local 56,
International Brotherhood of Firemen, Oilers, and Maintenance
161 NLRB No. 52.