Solo Cup Co.

National Labor Relations Board - Board Decisions

Sep 21, 1955

114 N.L.R.B. 121 (N.L.R.B. 1955)

SOLO CUP COMPANY 121
gional Director is instructed to issue a certification of results of election
,showing no representative has been selected.
= [Text of Direction-of- Elections omitted from publication.}
MEMBER M znocii took no part in the consideration of the above
Decision and Direction of Elections.
:SoIo Cup Company and International Brotherhood of Pulp, Sul-
phite and Paper Mill Workers , A. F. L. Case No. 17-CA-765.
September 201, 1955
DECISION AND ORDER
On May 12, 1955, Trial Examiner Robert E. Mullin issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that these allegations be dismissed.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port, and a supporting brief.
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 Inter,
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications and
additions :
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) and (1) of the Act in terminating for a period of
4 days the employment of Westmoreland, Bradley, Palmer, and War-
den because they had engaged in protected concerted activities.' On
June 16, 1954, these employees, together with the other cup inspection
workers on the 4 to 12 p. m. shift, had shut down their machines, as
they had agreed to do in advance, and walked off the job for a period
of about 1 hour for the purpose of obtaining from the Respondent an
explanation "to their satisfaction" for what they believed to be the
arbitrary discharge of 2 of their coworkers that -day, and to argue
against-sueh discharges. There is specific unrefuted testimony that
1 See Standard Coil Products Co., Inc., 110 NLRB 412; Rugcrofters of Puerto R4oo, Inc.,
107 NLRB 256, 262 ; Ace Handle Corporation, 100 NLRB 1279-80, 1290.
114 NLRB No. 31.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were primarily concerned over the discharge of Mary Page, an
employee, and secondarily over the discharge of floorgirl Mary Pruitt,
a supervisor. The evidence, fully corroborated, further shows that the
individuals involved undertook the concerted stoppage for the reasons,
,it least in material part, that they considered their own job security
in jeopardy. Thus, Westmoreland testified that she explained to Plant
Manager Bauman, after the stoppage and before the four complainants
were terminated, that "we felt that if [Page and Pruitt were] dis-
charged over something like that, what would they do to the rest of
us, I mean that they could just up and fire any of us for any little reason
at all. ..." We find, as the record amply demonstrates, that the con-
certed activities, for which the employees in question were terminated,
were engaged in by the participants for the purpose of their mutual
aid and protection and were therefore protected by the Act 2
2. We also agree, on the evidence, that the Respondent, in viola-
tion of Section 8 (a) (3) and (1) of the Act, discharged Mary Page
because it believed she was actively involved in union organizational
activities.3
3. We likewise find that the Respondent independently violated
Section 8 (a) (1) of the Act by reason of the coercive conduct of Joseph
Donahoe. In view of Donahoe's various duties and undertakings
shown in the record, it is clear that he was, or was held out as, a man-
agement representative having specific functions bearing upon the
Respondent's personnel and labor relations with the employees. He
was referred to by Respondent at the representation hearing as "the
personnel man," and was excluded from the bargaining unit. Dona-
hoe described his job to individuals employed at the plant as that
of "personnel director" and "personnel manager," and he testified that
his duties were "to sort of feel out the pulse of the individuals work-
ing," adding-"just personnel pulse." Among other things, Donahoe
attended the supervisors' meetings; he was present with management
in specific instances when employees were being interviewed in con-
nection with special personnel matters; he regularly examined ap-
plicants for employment and performed the act of hiring, albeit in
all or most cases with the specific approval of Vice-President Hulse-
man or Plant Manager Bauman; and he conducted a series of in-
dividual conferences with all plant employees and certain super-
visors, extending over a period of several months, relating to their
conditions of employment and possible grievances they had with
management; during these conferences he questioned certain em-
ployees concerning union activities and made threatening statements,
as specified in the Intermediate Report. Whether or not Donahoe was
2 See N. L. R. B . v. Phoenix Mutual Life Insurance Co., 167 F 2d 983, 988 (C. A 7).
cert denied 335 U. S. 845.
3 See, e. g., Serv-Air Aviation, Stallings Air Base, 111 NLRB 689, Colonial Fashions,
Inc., 110 NLRB 1197.
SOLO CUP COMPANY 123
technically a "supervisor" within the Act's definition, we conclude with
the. Trial Examiner that he had at least apparent authority to speak
for management, and that the Respondent was responsible for his
coercive conduct.4 Nor was the Respondent relieved of such responsi-
bility because of any instruction it issued to management personnel
to remain neutral concerning union matters, as these instructions, in
any event, were not communicated to the employees.'
4. No exceptions having been filed thereto, we accordingly adopt
the Trial Examiner's dismissal of the complaint respecting the alleged
discriminatory discharges of Mary Pruitt, Jean Kenagy, and Ruth
Welborn, and those of Elizabeth L. Bradley and Lyda B. Palmer after
they resumed work following their 4-day suspension. In view of the
admitted fact that Mary Pruitt was a supervisor, and the absence of
any contention or evidence that she was discharged for failure to
engage in antiunion or other unfair labor practices specifically de-
manded by the Respondent,6 we deem it unnecessary to determine
whether she was discharged because of her activities in support of the
Union, as found by the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Solo Cup Company, Grand-
view, Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Pulp, Sulphite and Paper Mill Workers, A. F. L., or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees or by discriminating in any other manner in
regard to their hire or tenure of employment, or any term or condition
of their employment.
(b) Interrogating its employees concerning their activities on be-
half of International Brotherhood of Pulp, Sulphite and Paper Mill
Workers, A. F. L., or any other labor organization, in a manner con-
stituting interference, restraint, or coercion in violation of Section
8 (a) (1), or threatening its employees with loss of employment or
with other reprisals for engaging in union and/or concerted activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join
or assist International Brotherhood of Pulp, Sulphite and Paper Mill
col-Workers, A. F. L., or any other labor organization, to bargain
Mississ ippi Products, Inc., 103 NLRB 1388, 1393 , enfd. 213 F . 2d 670, 673 ( C. A. 5)
S: D. Cohoon & Son, 101 NLRB 966.
5 See Thomason Plywood Corp , 109 NLRB 898.
6 See U. S Phosphoric Products Division, Tennessee Corporation, 99 NLRB 654 , 600, 662.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lectively through representatives of their own choosing, and-to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all,of, such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con=
dition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act: -
(a) Offer Mary Page immediate and full reinstatement 'to 'her
former or substantially equivalent position without prejudice to heir
seniority or other rights and privileges, and make her whole, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy," for any loss of pay she may have suffered by reason
of the Respondent's discrimination.
(b) Make whole Joyce Westmoreland, Elizabeth L. Bradley, Emma
Warden, and Lyda B. Palmer for any loss of pay they may have suf-
fered as a result of their discriminatory suspension on June 17, 1954.
(c) Upon request make available • to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due.
. (d) Post at its plant in Grandview, Missouri, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 7
Copies of said notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by the Respond-
ent, be posted by the Respondent immediately upon receipt thereof
and be maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Seventeenth Region,
Kansas City, Missouri, in writing, within ten (10) days from the date
of this Order, what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminatorily dis-
charged Jean Kenagy and Mary Pruitt, and that the Respondent dis-
criminatorily terminated Elizabeth Bradley, Lyda Palmer, and Ruth
Welborn as alleged in paragraph 7 of the complaint, or that it-com-
mitted any unfair labor .practices in violation of the Act except as
otherwise found herein.
7 This notice is amended by substituting for the words "The Recommendations of a Trial
Examiner" the words "A Decision and Order ." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order."
SOLO CUP COMPANY
INTERMEDIATE REPORT
STATEMENT OF THE CASE
125
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Kansas City,
Missouri, from January 18 to 25, 1955, pursuant-to due notice to all the parties.
The complaint, issued on December 20, 1954, by the General Counsel of the Na-
tional Labor Relations Board, and based on charges duly filed and served, alleged
that the Respondent had engaged in unfair labor practices proscribed by Section 8
(a) (1) and (3) of the Act. In its answer, duly filed, the Respondent conceded
certain facts with respect to its business operations but denied the commission of
the alleged unfair labor practices.
The General Counsel and Respondent were represented at the hearing by attorneys
and the Charging Party by an international representative. The foregoing were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally, and to file briefs and proposed findings
and conclusions. At the close of the hearing oral argument on the merits was
waived by the parties. On March 14, 1955, the Respondent submitted an able
brief which has been fully considered by the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent, an Illinois corporation with its principal offices in Chicago, is
engaged in the manufacture and sale of sanitary paper cups. In the course and
conduct of its business it operates a warehouse in Los Angeles, California, and fac-
tories in Chicago, Illinois; Baltimore, Maryland; and Grandview, Missouri; the
latter being the only plant involved in this proceeding. The Grandview factory
makes total annual purchases of raw materials and supplies in excess of $250,000,
over 85 percent of which is shipped directly to it from points outside the State of
Missouri. Annual sales of the finished products from this same factory exceed
$250,000, and more than 85 percent of this merchandise is shipped directly to cus-
tomers located outside the State of Missouri. On the foregoing facts, it is my con-
clusion, and I find, that the Respondent is engaged in commerce within the meaning
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Party, International Brotherhood of Pulp, Sulphite and Paper Mill
Workers, A. F. L., herein referred to as the Union, or Paper Mill Workers, is a
labor organization within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction
In August 1953 union representatives distributed handbills to the employees of
the Company in an effort to encourage them to join. In January 1954 more cam-
paign literature was distributed in similar fashion and on February 9 an organizer
met with several of the employees at the home of Jean Kenagy, one of their number.
On February 12 Kenagy was discharged. On about February 16 another organiza-
tional meeting was held at her house. Various other union meetings were held
during the following months and on May 15, after a hearing and decision on a
representation petition filed by the Paper Mill Workers (Solo Cup Company, Case
No. 17-RC-1776, not reported in printed volumes of Board Decisions and Orders),
a Board-conducted election was held. This was lost by both Unions on the ballot,'
and on May 27 the Regional Director certified that a majority was cast for "No
Union." 2
I The International Association of Machinists intervened in the representation proceed-
ing and appeared on the ballot
2 The vote was :
Paper Mill Workers---------------- 8 No Union ------------------------- 38
Machinists ----------------------- 7 Challenged Ballots ----------------- 1
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The status and activities of Joseph Donahoe
The General Counsel alleged that the Respondent violated the Act through cer-
tain activities of Joseph Donahoe who, during the spring of 1954, conducted a series
of interviews with the employees during which working conditions and various other
matters were discussed. The Company, on the other hand, denied all responsibility
for Donahoe's conduct on the ground that he had the status of only an office clerical.
Donahoe was brought to the Grandview plant in July 1953, after being with the
sales division for several years. He testified that for sometime after his transfer he
worked as a production and maintenance employee, in order to be prepared "for
anything in personnel and personnel interviewing that would come later," and
thereafter assumed his new duties. At the representation hearing in Case No.
17-RC-1776, Ray Hulseman, vice president in charge of the plant, referred to
Donahoe as "the personnel man." The Respondent, however, denied that Donahoe
had the authority to hire or fire anyone on his own initiative or that he had any of
the other attributes of a supervisor as defined in the Act. John Bauman, the plant
manager, testified that Donahoe interviewed and screened job applicants but that
only after either he or Hulseman had also talked with a specific applicant was
Donahoe instructed to hire anyone. On the other hand, Bauman conceded that
Donahoe made recommendations as to the suitability of applicants in that he custom-
arily gave him "the benefit of his opinion." 3 In addition to his duties with respect
to incoming personnel, Donahoe edited a plant newspaper, distributed company
handbills among the employees on the issues in the representation election, was re-
sponsible for managing the employees' annual picnic, and maintained a suggestion
box where employees could offer their own ideas on plant operations. Donahoe was
paid $453 a month, a salary higher than that of 3 of the 5 foremen 4 in the plant, and
higher than that paid any of the floorgirls.5 With respect to the series of conferences
which Donahoe had with employees during the spring of 1954, Hulseman testified
that he gave Donahoe authority to conduct the interviews and in addition made some
of the arrangements for them. Bauman conceded that he was aware of Donahoe's
activities in this connection and that work in the plant had to be scheduled so that
the girls could be relieved from their machines one at a time in order to be available
for their interviews with Donahoe.
Although on the basis of the foregoing it appears that Donahoe was not a super-
visor within the meaning of the Act, and I so find, there remains the question as
to whether his position was such that as one clothed with apparent authority to speak
for the Company the latter must be responsible for his conduct as one of its agents.
The all-inclusive definition of an "employer" in Section 2 (2) of the Act covers any-
one "acting as an agent of an employer, directly or indirectly." In Section 2 (13) it
is further provided that in determining whether an individual is acting as an agent
for another "so as to make such other person responsible for his acts, the question of
whether the specific acts performed were actually authorized or subsequently rati-
fied shall not be controlling." Here, Donahoe's functions in connection with the
initial hiring interviews, his subsequent conferences with individual employees, con-
cededly authorized and sponsored by the company officials, as well as his other activi-
ties set forth above, plainly identified him with management in such a way that be-
cause of this apparent authority to speak for the Company the latter "may fairly be
said to be responsible for his conduct." N. L. R. B. v. Mississippi Products, Inc.,
213 F. 2d 670, 673 (C. A. 5) (citing I. A. M. v. N. L. R. B., 311 U. S. 72, 80). I so
find.6
Donahoe testified that in January 1954, Hulseman directed him to interview all
the employees in the plant as a means of getting acquainted with them, as a job
evaluation study in certain respects, and to answer any questions the employees might
-bring up. It is not clear as to exactly when the interviews began but it does appear
3 The quotation is from Bauman's testimony.
4 Two of these, Richter and Herrick, were paid at an hourly rate which on the basis
of a 40-hour week would give them less than $350 per month Whippo, a third foreman,
received $440 a month The two foremen whose salary exceeded that of Donahoe were
Morgan and Maty.
B The floorgiris, all of whom were concededly supervisory personnel, received consider-
ably less than Donahoe. The payroll cards of 3 of the latter, Pruitt, Moreland, and
Hedger, are in the record, and from these it appears that the floorgirls earned approxi-
mately $50 per week during the period in question. Donahoe was earning more than twice
that-much;
U In conformity with this finding, Respondent's motion, made at the hearing, to strike
all testimony as to Donahoe is hereby denied.
SOLO CUP COMPANY 127
that in March and April- many of the employees were called in to meet with him.
Mary Pruitt, then a floorgirl, credibly testified that late in March or early in April
he conferred with each of the girls on her shift for from 30 minutes to 2 hours each.
According to Mary Page, one of-those employees, during the course of her inter-
view, Donahoe asked what she thought of a union and after she told him that she
had belonged to one at her place of previous employment, he stated "I guess you
know in case . a union was going to get in here that we have enough applications
here that we could replace all you girls that are working for the union." 7 Myrtle
Miller, another member of that shift, testified that during the course of her interview
Donahoe questioned her as to what her husband thought of her working in a non-
union plant, asked if she realized on coming to work that the plant was not organized,
and then stated "if I would go along with the Company, I would have a job, other-
wise I would not." Ruth Welborn, also an employee, testified that Donahoe asked
her if she had had any experience with unions and then told her that if the Union
organized the plant the Company probably would be unable to give its customary
Christmas bonus. James Pruitt, an employee in the wax department , testified that
he was likewise interviewed during this period and that Donahoe asked him several
questions about his brother, Hulen Pruitt. According to James Pruitt, Donahoe
asked if he realized that Hulen was assisting the union organizer and suggested "we
would like for you to get him and talk to him . . . you would be doing the company
a favor as well as yourself." 8 Another employee, Lyda Palmer, testified that in May
Donahoe brought a copy of a company letter on the forthcoming election to her ma-
chine and when she asked what it signified, he told her that "if the union does get in
we won't have any more Christmas bonus." Several of the witnesses, Kathryn
Hestand, Shirley Mott, Janice Lewis, Marguerite McClasky, and Elizabeth Bradley,
testified that the subject of unions was not raised at any time during their conferences
with Donahoe. The latter denied that he ever made any statement to an employee
as to the effect of the Union on her chances for a bonus and further that Mr. Hulse-
man impressed on him that he was not to discuss unions during his interviews with
the employees. On the other hand, after stating that he never initiated any discus-
sion about unions during the interviews, he testified that a number of the employees
questioned him on the subject and that he answered their questions. He had no
recollection as to which employees it was with whom he had had such discussions.
Page, Miller, Palmer, and James Pruitt appeared to be trustworthy witnesses. They
gave their testimony in a frank and straightforward manner and it was unshaken
throughout an extensive cross-examination. I did not have a similar reaction with
respect to Welborn, whose appearance on the stand was marked by an air of flippancy
that greatly, detracted from the plausibility of her testimony. Neither was the vague
and incomplete recollection of Donahoe persuasive in the face of the credible testi-
mony of the four witnesses mentioned earlier in this paragraph. Consequently, I
credit the latter as the more worthy of belief. Such statements as Donahoe's remark
to Page about the availability of replacements if the Union was successful, his sug-
gestion to Miller that she go along with the Company in order to keep her job, and
his comment to Palmer that the advent of the Union would end the Christmas bonus
were all coercive within the meaning of Section 8 (a) (1) of the Act. Since I have
found earlier herein that Donahoe was acting as an agent of the Company in connec-
tion with his duties, the Respondent must be held accountable'for this conduct. Ac-
cordingly, I find that by the remarks set forth above the Company violated Section
8 (a) (1) of the Act. I further find that when Donahoe questioned Page as to her
views on the Union and Miller as to those of her husband on the same subject, in the
context of threats to their employment which Donahoe made during those conversa-
tions, the Respondent likewise violated Section 8 (a) (1). The Dalton Company,
Inc., 109 NLRB 1228; Sears, Roebuck & Co., 109 NLRB 632, footnote 2; Taylor-
O'Brien Corporation, 112 NLRB 19
7 On cross-examination Page testified that Donahoe limited his statement to the girls
on her shift.
g This testimony was undenied.
° Respondent, in its brief, urges that all of Donahoe's remarks were made before the
6-month limitation period provided by Section 10 (b) of the Act This argument seems
to assume that the restriction in that section of the Act applies only to the complaint
That; however, is error "The six month limitatijn refers . . . to acts that occur before
the charge and does not prohibit the inclusion of similar or related acts happening after
the charge " N. L R. B. v Kohler Co., 220 F. 2d 3 (C. A. 7). [Emphasis supplied 1
As found above, Donahoe interviewed the employees in the spring of 1954. The original
unfair labor practice charge in the case was filed on April 9, 1954, and the Union allegea
therein that the Respondent had violated the Act by its discharge of Kenagy and "by
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The discharge of Jean Kenagy
This employee was terminated on February 12, 1954, according to the General
Counsel , for discriminatory reasons, according to the Respondent , for cause.
Kenagy was in the Company's employ about 7 months and at the time of her termi-
nation she was the leak test girl. This duty required that she make periodic samplings
of the hourly cup production and put these samples through various tests with water
and other fluids which would reveal any latent defects. In the event she found an
unsatisfactory cup, known as a "leaker ," a colored stain was used to, mark the defect
and the cup was then given to the floorgirl or the chief cup inspector on the shift so
that a mechanic could be immediately assigned to repair or adjust the cup manufac-
turing machine on which it had been produced. While in production these machines
were operated automatically. Consequently it was assumed that whenever the leak
test girl discovered a defective cup, several, if not many, other similarly defective
cups had, by that time, been packed. As a result once the test girl reported a leaker
it was customary for the floorgirl to engage in a recheck of the cases that had been
packed from the machine which had produced the faulty cup during the interim.
Kenagy had been doing this work for about 5 months prior to her dismissal, and
according to her, had only had one complaint from any supervisor , that being an oc-
casion when Foreman William Morgan had told her she was working too slowly.
On February 10, Kenagy reported to Plant Manager Bauman that her supervisor,
floorgirl Eileen Moreland, was not calling back cases in which leakers had been dis-
covered for the customary reinspection and further that Moreland had not been
doing this for sometime . 1° Bauman asked why she had not informed him of these
facts earlier and summoned the floorgirl to the scene. Moreland denied that Kenagy
had reported any leakers to her that day. According to Bauman, Kenagy then al-
leged that it was not to Moreland but to the chief inspector, Juanita Bates, that she
had made such a report. When summoned, Bates likewise denied having received
any such report. From the testimony of all the principals it is plain that Kenagy
and Moreland thereupon engaged in a heated argument which ended when Bauman
ordered everyone back to work and told Kenagy to come to his office at the close
of the shift. When she did so the plant manager told her that he was suspending
her for 2 days.
questioning the employees as to their union sympathies." Consequently, I find no merit
in the argument that the Respondent should be relieved of liability for Donahoe's conduct
by the provisions of Section 10 (b).
Another incident about which there is some testimony in the record does, however,
involve the applicability of the statute-of-limitations provisions. Virginia Gallardi, then
one of the floorgirls, testified that late in September 1953, Bauman called her into his
office, asked her if she knew anything about a meeting at the home of one of the employees
the night before and, when she answered 'in the negative, ordered her to tell the girls on
her shift, that anyone discussing union activities on company property would be fired
immediately . Bauman , on the other hand , testified that the incident in question arose
when Gallardi reported to him that the employees on her shift had stayed in the restroom
after 4 p. in. to hold a meeting According to Bauman, he did not want the employees on
one shift to be inconveniencing the girls on the next by remaining in the lounge after
.hours so he instructed Gallardi that there were to be no more such meetings held at the
end of any shift. He denied that Gallardi told him that the employees had been holding a
union meeting . The plant manager's testimony as to the sequence of events was corrobo-
rated by several of the employees. Kathryn Hestand and Shirley Mott testified as to
the meeting which the girls had held. According to the latter, the employees on Gallardi's
,shift met in the restroom after 4 p. in. to discuss the merits of joining a union, and the
following morning Gallardi told them that if they had any more meetings on company
premises on or after working hours they would be fired Hestand testified that Gallardi
also stated that "there would be no more union talk on the Solo Cup's property." According
to Myrtle Miller, another employee present, the floorgirl told them that "as far as any
union was concerned there would be no union " The latter three witnesses appeared to be
,frank and honest and I consider their testimony plausible However , insofar as finding
that any of Gallardi's conversation or Bauman's instructions to her violated the Act, it
is my conclusion that since the incident occurred in September 1953 and a charge was
not filed until the following April, the 6-month limitation set forth in Section 10 (b) is
applicable and bars any unfair labor practice finding based thereon.
w Kenagy first mentioned this matter to Donahoe, who, in turn called Bauman. Other
than to call the plant manager to the scene it does not appear that Donahoe played any
further,role in the events which followed.
SOLO CUP COMPANY 129
According to Bauman on the following day-he personally checked the case of
cups in which Kenagy had allegedly found the leakers and, despite a thorough exam-
ination of the case, he could find no faulty cups. He testified that he thereupon
spoke to Morgan, her foreman, and when the latter described her as an unsatisfac-
tory employee he concluded that she should be discharged and notified her to that
effect the following day. Bauman denied that he had any knowledge of whether
Kenagy was engaged in union activities.
In fact a union meeting had been held at Kenagy's home on February 9.. Several
of her coemployees were there and a representative of the Paper Mill Workers ex-
plained the advantages of his organization to those present. Several months earlier,
in another meeting at Kenagy's home, a number of the employees had gathered to
consider the advisability of joining a labor union. However, no organizer was pres-
ent at that time Floorgirl Pruitt testified that early in April after Donahoe had
interviewed all the girls on her shift he called her in for a conference. According
to Pruitt, after telling her he had learned during the course of his interviews that
the principal concern of the employees was the summary manner in which Kenagy
had. been dismissed, Donahoe stated "We was only going to suspend Jean for a
couple of days . . . then we found out she was head-over-heels in union activities,
and we let her go." At the hearing Donahoe denied ever having made any such
statement. Upon considering the apparent credibility of these two witnesses as well
as the fact that Pruitt was one of those against whom the Company allegedly dis-
criminated and for that reason was an interested party, it is my conclusion, based
upon the appearance and demeanor of both, that she was the more credible and that
Donahoe made the statement she attributed to him.
Without more, such evidence would lend great weight to the General Counsel's
allegation that Kenagy was discriminatorily discharged. On the other hand,
Bauman's testimony about Kenagy's work record was credible and it was cor-
roborated by the equally persuasive testimony of Morgan who testified that Kenagy
had proved to be an unreliable worker over a period of months and that he recom-
mended her dismissal when the plant manager sought his opinion.ii According to
Bauman , at the outset of his investigation he planned to discharge the floorgirl if
any faulty cups were discovered in the case which Kenagy alleged that Moreland
had ignored, but when a complete examination of the case disclosed no such defects
he decided that it was Kenagy, and not Moreland; who should be dismissed. He
likewise testified that before reaching this decision he considered the possibility of
transferring Kenagy to another shift but decided not to. do so because she had once
been on the night shift and had quit because her family situation was such that she
could only work days
Kenagy's union activity, the meeting at her home on February 9, her suspension
the next day, her termination 2 days later, and Donahoe's remark to Pruitt several
weeks thereafter established a prima facie case for the General Counsel. On the
other hand, the Respondent proved that Kenagy's record left much to be desired,
that a number of complaints had been made about her work, that she had precipi-
tated a dispute with her floorgirl and that she subsequently failed to substantiate
the attack she had made on Moreland's competency. Bauman's initial action in
suspending Kenagy immediately after her noisy quarrel with the floorgirl was a
normal step for him to take. It was likewise reasonable for him to conclude that
peace and harmony on the shift required that one or the other of the two partici-
pants be dismissed and, further to decide, when his investigation revealed no basis
for Kenagy 's allegation , that the employee, and not her supervisor, should be dis-
charged. Cf. Chance Vought Aircraft Division of United Aircraft Corporation, 85
NLRB 183, 188. From the record it appears that Bauman conducted an independ-
ent investigation of the negligence attributed to Moreland by Kenagy and that Dona-
hoe had nothing to do with the matter. _ For this reason, the latter's remark to a
supervisory employee such as Pruitt, 6 to 8 weeks after the discharge occurred,
can not be controlling here. The General Counsel assumed the burden of proving
that the real reason for the employee's dismissal was her union activities. On the
above facts it is my conclusion that this burden was not sustained and that the
allegation in the complaint as to Kenagy should be dismissed
"Pruitt described Kenagy as a "very good leak test girl" during the period when she
was under her supervision. Pruitt, however, was Kenagy's floorgirl for only about
6 weeks (from October 12 to November 30, 1953), and even she testified as to an occasion
during that period when Kenagy forgot to make one of the required pickups on her shift.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The discharges of June 16
1. Mary Pruitt
As a floorgirl , Pruitt was a supervisor. She had been employed for several months
at the Respondent 's Chicago plant and was transferred to the Grandview factory
shortly after it opened in December 1952. In the course of her supervisory duties
she also trained new employees to become cup inspectors , one of these being Mary
Page. -
Pruitt actively assisted the Union in its efforts to organize the plant. She handed
out cards to a number of the employees on her shift and attended one of the union's
meetings held in Kenagy 's house subsequent to the discharge of that employee.
During his interview with her in April , Donahoe questioned her as to whether her
brother-in -law, Hulen Pruitt , was living at her home and, as noted earlier, Donahoe
subsequently suggested to her husband that he would be doing the Company and
himself a favor by discouraging Hulen from assisting the union organizer. On May
16, the day after the representation election, Plant Manager Bauman asked Mrs.
Pruitt whether she would care to transfer back to the Chicago plant , but she de-
clined with the explanation that she and her husband had recently bought a home
in the area and preferred to remain.
Pruitt was discharged on June 16, 1954, allegedly because she had allowed sev-
eral cases of improperly printed cups to be packed and sent to the warehouse. Ac-
cording to Mr. Bauman , on June 14 , a very large number of unsalable cups was
found in 7 cases containing some 17,500 cups which had been packed from 1 ma-
chine operated by Mary Page on June 11. He testified that, extending through the
seven cases , a red design had been smeared around the side of the cup making it
very unsightly and unmarketable . He further testified that he was greatly concerned
because the faulty printing was discovered quite by accident by an employee known
as the quality control girl while the latter was making spot checks on the warehouse
inventory . As a result , according to Bauman , he discharged both Mary Page, the
inspector who had packed the cups, and Mrs. Pruitt , the shift floorgirl , on the night
in question.
On June 14, Bauman summoned Leona Hurst , the chief inspector , Robert Richter,
the foreman , Charles Landreth , a mechanic , and Pruitt to a meeting at which he
questioned them as to how the faulty printing had occurred . According to the
plant manager none of them had very satisfactory answers. Although the error
arose from the use of the wrong type of ink in the cup machine , when Bauman
questioned them , neither Landreth nor Richter knew who had made the mistake
in putting ink into Page 's machine . Yet the floor mechanic was the one assigned
to keep the proper type ink in the machines and neither the cup inspector nor
the floorgirl had any responsibility in connection with keeping the ink vats filled.
Hurst, the chief inspector whose position was equivalent to that of an assistant
floorgirl , 12 concededly was unaware that any of the cups from Page's machine
were improperly colored. Bauman 's testimony that the defective printing was
found in seven cases was not corroborated by Janice Lewis, the quality control
girl, when she took the stand. On cross-examination , the latter conceded that she
had checked only four cases . From the report which she prepared it appeared
that she had found bad printing in only 2 of these and that from the other 2
cases she had removed approximately 450 cups because they had serious air pockets.
Further, according to Lewis' report , after completing her inspection of the first two
cases she found no defective printing in the third case she examined . Lewis also
testified that the 4 cases from Page 's machine which she had inspected were num-
bered 15, 16, 17, and 19 , 13 but that she could not find number 18. In fact , Pruitt
had held back one of the cases which Page had packed on the evening of June 11
for the express purpose of rechecking it. Bauman conceded that she told him about
this at the meeting on the following Monday.
Page testified that she had had a great amount of mechanical trouble with the ma-
chine in question at the time it manufactured the defective cups and the daily work
report filed jointly by Hurst and Pruitt reflected an hour lost by that particular
12 So described by Bauman , who also stated that whenever one of the cup inspectors
needed help she called the chief inspector , if the floorgirl was not available . According
to Dorothy Hedger, who was at various times both a floosgiil and a chief inspector, it was
the job of the latter to check the cup production on each machine every 'hour to catch
anything wrong with either the cups or the printing thereon.
13 From the daily work report for the shift it appears that only 19 cases of the cups
involved here ( known as type "8xR") were packed by Page from this 1 machine.
SOLO CUP COMPANY 131
machine because of repairs needed to correct its tendency to make cups with air
pockets. Page also testified , without contradiction , that Hurst was at her machine
several times during the latter part of her shift when she was experiencing this
difficulty.
The Respondent contended at the hearing that even though the defective cups
might not have cost much, their physical loss was nothing compared with the serious
damage to customer goodwill wnicn the Company would incur it the cases wnich
Page had packed were shipped without detecting the faulty cups. This was no
doubt true and the Respondent's concern in this regard is certainly understandable.
On the other hand, although Bauman attributed 7 defectively printed cases to Page
and Pruitt , the latter credibly testified that at the Monday meeting Bauman only
showed her 2 cases and that she never saw any more. Moreover , the testimony
of Lewis and the report she filed on the matter indicated there were only 2, the
approximate value of which was $5.20.14 Not without significance in connection
with the conflict between the testimony of Bauman and Lewis as to the number of
cases involved was the testimony of James Pruitt . According to the latter, on
the day his wife was discharged he sought out Bauman to tell him he was sorry
a mistake had been made and that he would be willing to buy the faulty cups from
the Company . The plant manager, however, declined his offer with the remark
"No, they [have been] put in stock." 15 As a floorgirl , Pruitt was , of course, the
senior female supervisor in charge of the shift on the night the defective cups were
produced . Yet Hurst , as the chief cup inspector and her assistant , was even more
directly responsible for hourly checks on the quality of the cup production . In addi-
tion , Richter, the foreman and the highest ranking supervisor on duty at the time,
had an even more complete responsibility for the satisfactory operation of his shift.
Similarly, Landreth the mechanic who was charged with putting the proper color
ink in Page 's machine could not be held entirely blameless . Bauman conceded
that none of them could give a satisfactory answer to his questions as to why the
incident had occurred . Whereas Hurst was unaware of the mistake in the color
printing , Pruitt had held out an entire case so that it could be rechecked . Yet, of
all the supervisory personnel and others who shared in the responsibility for this
matter only Pruitt and Page were penalized.
Bauman denied any knowledge of Pruitt's union activities . On the other hand,
Pruitt had actively solicited members on behalf of the Paper Mill Workers and
she had attended one union meeting. In addition , the organizational activities of
her brother-in-law, Hulen Pruitt , had been the subject of an interrogation by
Donahoe when he interviewed both Mrs. Pruitt and her husband during the early
spring. Further , on the day after the election Bauman sought to interest her in
a transfer back to Chicago . From the foregoing it is my conclusion , and 1 find,
that the Respondent had knowledge of Mrs. Pruitt 's union activities.
At the time of her discharge Pruitt had been a floorgirl longer than any of
the other female supervisory personnel and throughout her employment had had
an excellent work record . In view of the conflict between the testimony of Bauman
and Lewis as to the extent of the problem created by the incident on June 11, 1
am not convinced that the mistake involved was as serious as Bauman's initial
testimony indicated . In view of this fact and the failure to discipline either the
mechanic who put the wrong ink in Page's machine ; the chief inspector who had
failed to detect any error in the print , or the foreman of the shift who was ultimately
accountable for the mechanic 's error as well as that of the cup inspector, it is
difficult to understand why Pruitt , who had set aside an entire case of the ques-
tioned cups for rechecking , should have been singled out for summary discharge.
The Respondent , through Donahoe, had made it clear to a number of employees
that open support of the Union would be penalized . The latter had also mani-
fested concern about the organizational activities of Pruitt 's brother-in-law and had
suggested to her husband that he would be doing himself a ,favor by discouraging
any such further activity. I have already found that the Company was likewise
aware of Mrs . Pruitt's own adherence to the Union . In view of the foregoing it
is my conclusion that it was this activity and not any dereliction of duty which
led to her precipitate discharge on June 16.
Contrary to the General Counsel 's contention, however, since Mrs. Pruitt was a
supervisor , her dismissal for organizational activities on behalf of a rank-and-file
union did not violate the Act. Accurate Threaded Products Company, 90 NLRB
14 Mr. Hulseman testified that the average wholesale price on a standard case was $2.60.
15 This testimony was neither contradicted nor denied
387644-56-vol 111-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1364; Tri-Pak Machinery Service, Inc., 94 NLRB 1715, 1717-1718, 1724; N. L. R. B.
v. Columbus Iron Works Co., 217 F. 2d 208 (C. A. 5); and Texas Company V.
N. L. R. B., 198 F. 2d 540 (C. A. 9).16 I shall, therefore, recommend that the
allegation as to her discharge be dismissed.
2. Mary Page
This employee was hired in January 1954. She had a good work record and was
promoted to a 4-machine operation with a raise in pay only 3 weeks after coming
with the Respondent.17 From the outset of her employment, Mrs. Pruitt had been
her floorgirl . Because of a death in her family, Page was not at the plant on June
14 when Bauman interviewed Pruitt and the others as outlined above. The follow-
ing evening when she returned to work Bauman called her into his office to ask about
the incident. In doing so he showed her from 2 to 3 cases of cups, some of which
had faulty printing. In response to his questions, Page explained that the mistake
had arisen because she had had a lot of mechanical difficulty with the particular
machine on which the cups had been produced. Bauman then told her to return to
work. The following day he telephoned her at her home to tell her that she was
fired.
Page lived 40 miles from the plant and had not attended any union meetings while
an employee of the Respondent. At her place of previous employment she had been
a member of the United Garment Workers, A. F. L., and had received from that
organization a booklet which outlined the benefits and advantages of unionization.
On one occasion in March she brought this to the plant and let several of her fellow
employees read it, among them being Chief Inspector Hurst and Mrs. Pruitt. As
noted earlier, during her interview with Donahoe he asked what she thought of the
Union, and after she told him she had been a union member at another plant he re-
minded her that the factory was a nonunion establishment and stated that if the
Union should get in the Company had enough applications on file to replace all the
girls on her shift.
Although Mr. Bauman denied knowledge of any union activities on Page's part, it
is plain that the Respondent was aware of her past affiliation with the Garment
Workers. From Donahoe's remarks during his interview with her it is equally clear
that he identified her with the organizational campaign then in progress and that he
predicted the replacement of all on her shift if the Union was successful. As set
forth earlier herein, from the credited testimony of Lewis, it is my conclusion that
the extent of the error on Page's part was not as great as Mr. Bauman sought to es-
tablish by his testimony. Moreover, neither the mechanic who placed the wrong ink
in her machine nor the chief inspector who failed to detect any error in the printing
suffered any penalty for their mistakes. In view of these facts and the foregoing
evidence of the Respondent's antiunion animus it is my conclusion that the charges
against Page were a pretext and that the real reason for her abrupt dismissal was
her identification with the Union. Accordingly, I find that by its discharge of this
employee the Respondent violated Section 8 (a) (3) of the Act.
E. The shutdown of June 16
When the cup inspectors on the 4 to 12 p. in. shift arrived at the plant on June 16,
they learned that their floorgirl, Mrs. Pruitt, had been discharged. It was undisputed
that before starting their shift that afternoon the cup inspectors agreed among them-
selves that if it developed that their coworker Page had also been dismissed they
would shut off their machines and walk off the job until they found out why these
individuals had been discharged. About an hour after beginning the shift they
learned that Page had, in fact, been terminated. Accordingly, at about 5:30 p. in.,
the 4 cup inspectors then on duty 18 shut down their machines, left their work stations,
and told Robert Richter, the foreman, that they wanted to talk with Bauman as to
11 N L. R. B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208 (C A 5), the only case
on which the General Counsel might have relied, is readily distinguishable from the instant
situation for in Talladega an employer discharged two supervisors for failure to carry out
an order that they thwart the unionization of his plant by resort to unfair labor practices.
The court held that the Board properly ordered their reinstatement with back pay.
11 In contrast with a normal 0-week period customarily required to develop the requisite
skill'to operate 4 machines.
18 Joyce Westmoreland, Elizabeth Bradley, Lyda Palmer, and Emma Warden. Leona
Hurst, who, prior to Pruitt's discharge had been the chief inspector, was acting as floorgirl.
SOLO CUP COMPANY 133
why Page and Pruitt had been discharged . When the foreman reminded them that
Bauman had left and was then at his home they told him they would wait until the
plant manager arrived . Richter then telephoned Bauman . The latter asked the fore-
man to advise the girls that he would come to the factory later and that in the mean-
time they should return to their jobs . When Richter gave this message to the girls
they discussed the matter among themselves and then informed him that they would
go back to work but only if Bauman would promise to speak to them as a group
when he arrived at the factory . When Richter, in another phone call , apprised the
plant manager of this condition , however, the latter rejected it, ordered that the em-
ployees return to work immediately , and asked that they be told that he would talk
with them in any manner he cared . After the foreman relayed these instructions
to the employees they returned to their machines.
Shortly before Bauman returned to the plant , Donahoe arrived . According to
Richter, he immediately requested an explanation of the circumstances of the walk-
out and the foreman related what he knew about the matter . Shortly thereafter,
Donahoe spoke to Mrs. Palmer, one of the cup inspectors , and told her "you go back
and tell the girls if there is anymore commotion like this shutting off the machines,
they might just as well time out and go on home because they 'll be fired ." 19 Palmer
complied with this order and carried the message to the other employees.
When Bauman arrived he announced that he would only see the girls 1 or 2 at a
time. The first and only ones interviewed that evening were Westmoreland and Brad-
ley. Donahoe was present throughout the meeting they had with the plant manager.
In response to Bauman 's question as to why the machines had been shut down,
Westmoreland told him that the girls wanted to find out why Page and Pruitt had been
fired . Bauman then told them that the Company felt under no obligation to report
to its employees on the matter but that he would tell them that Page and Pruitt were
terminated because their work was unsatisfactory in that they had failed to prevent
three cases of cups from being printed the wrong color . The employees protested
that that was not a serious matter; that worse mistakes had been tolerated in the past
and that, in any event , no more than an hour's production from one machine could
have been lost. Bauman countered with the statement that at least 2 hours of work
had been lost and then terminated the meeting by telling Westmoreland and Bradley
that nothing they might say or do would bring Page or Pruitt back to work and they
could report to the others that the girls could continue to work only "if they want to
accept the situation as it now stands ." After Bauman concluded his remarks,
Donahoe turned to Westmoreland and told her that he did not believe she would like
working for the Company any more, that he "just didn't think that working conditions
were going to be favorable for [her]." 20
At the start of the shift the next evening , Bradley, Warden , Palmer, and West-
moreland were called to Bauman 's office, where the latter told them they were being
terminated "until further notice ." 21 None of the employees was given any indica-
tion as to when she would be recalled, if ever. When 1 of them asked why just 4
were being singled out for such a penalty despite the fact that the entire shift had
stopped work , the plant manager told them that they were the only ones who had
shut off their machines and therefore were the ones to be punished . On June 23,
after receiving a notice from Bauman that they could return to work, the four em-
ployees did so.22
The General Counsel contends that the employees involved in this incident were
lawfully protesting the discharge of their coworker Page and their floorgirl Pruitt, and,
therefore , were engaged in protected , concerted activity for which they could not be
disciplined . The Respondent , on the other hand, argues that they were engaged
in a partial strike which the Board and the courts have held to be unprotected.
Respondent 's contention is not well founded . The cup inspectors here involved
did not seek to both strike and remain on the payroll as did the employees in the
various cases cited by the Respondent in its comprehensive brief. C. G. Conn, Ltd. v.
N. L. R. B., 108 F. 2d 390 (C. A. 7); N. L. R. B. v. Montgomery Ward & Co., 157
F. 2d 486 (C. A. 8); International Union, U. A. W., A. F. of L. v. W. E. R. B., 336
U.S. 245, 264; Honolulu Rapid Transit Company, Limited, 110 NLRB 244; Valley
City Furniture Company, 110 NLRB 1589 ; and Pacific Telephone and Telegraph
"This testimony was undenied. According to Donahoe, he made some general remarks
to those present, described the conduct of the girls as insubordination and told them
that ". . in my books it should warrant dismissal."
2O,The quotation is from the credited, undenied, testimony of Westmoreland
g' The quotation is from Bauman's testimony.
23 They had been laid off from June 17 to 22, a total of 4 working days -
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, 107 NLRB 1547. Here, the employees shut off their machines in a con-
certed move to force the Company to give them an explanation for what they consid-
ered the arbitrary discharge of two employees earlier that day. While affording their
foreman an opportunity to contact the plant manager to present their demand they
remained away from work, and on strike, for about an hour.23 After they received a
promise from Bauman that he would confer with them, they returned to their jobs.
The Respondent would have been free to remove them from the payroll for the hour
that they were neither on duty nor at work. But after they had obeyed Bauman's
order and returned to their jobs, the Company was not free to subsequently punish
them for having participated in a shortlived strike. Kitty Clover, Inc. v. N. L. R. B.,
208 F. 2d 212 (C. A. 8); N. L. R. B. v. Greensboro Coca Cola Co., 180 F. 2d 840,
834-844 (C. A. 4); N. L. R. B. v. Globe Wireless, Ltd., 193 F. 2d 748, 750 (C. A. 9);
Carter Carburetor Corp. v. N. L. R. B., 140 F. 2d 714, 718 (C. A. 8). The action
of the Respondent in terminating them as a penalty for having engaged in what
I find was protected concerted activity violated Section 8 (a) (3) and (1). Since I
have concluded that the work stoppage was protected it likewise follows that Donahoe
engaged in unlawful interference and coercion when he told the employees they
would be discharged if they did it again and conveyed a thinly veiled threat to
Westmoreland that because of her participation in the shutdown her future work-
ing conditions would be unfavorable. I find that by these statements the Respondent
violated Section 8 (a) (1) of the Act.24
F. The terminations subsequent to June 22
Within a short while after the suspensions discussed above, three employees were
terminated. The General Counsel contends that this action was discriminatory,
an allegation which the Respondent, in turn, denies.
1. Elizabeth Bradley
This employee returned to work on June 23. According to her own testimony, on
that first night the floorgirl, Mrs. Moreland, was friendly and helpful, but the follow-
ing evening Moreland became exacting and difficult to the point where she (Bradley)
was unable to continue at her work. Bradley testified that at about 10 p. in. she told
Richter, the foreman, that she was going home and that before she could even
reach the time clock, he and Moreland had punched her card.
Bauman testified that on June 24 Moreland complained to him that the night
before Bradley had been very uncivil to her, as a result of which he spoke to
Bradley and admonished her that she was to create no further difficulties of that
character. Richter, the foreman, testified that Bradley actually made no serious
mistakes in her work on the night of June 24, but that she appeared upset and dis-
turbed all evening and explained to him that it was because her husband did not want
her to work anymore. According to Richter, about 8 p. in. that evening Bradley
told him that because of that fact she would have to quit and shortly thereafter
did so Both Richter and Moreland denied that they punched her timecard.
Bradley had never attended any union meetings or participated in any concerted
activity other than the work stoppage on June 16, discussed above. Her version: of
events on the last evening of her employment was somewhat confused. Richter, on
the other hand, seemed completely sincere and honest in his testimony about the
incident. I presume that the General Counsel was seeking to prove that Bradley's
=.1 The decision in N L. R. B. v. Jamestown Veneer & Plywood Corp., 194 F. 2d 192, 194
(C. A 2), relied on by the Respondent, is inapplicable to the situation presented here.
In that case, when a foreman announced that within 21; hours a shift was being laid off,
4 employees immediately quit their jobs in protest against the short notice they had
received In holding that this conduct was not protected concerted activity, the court
stated that so far as the record appeared "their leaving had nothing to do with 'collective
bargaining, or other mutual aid or protection' " and pointed out that the "walkout was
not to secure a withdrawal of the notice of layoff Foreman Morrison [the shift foreman]
had no authority to withdraw it, and they neither asked him to withdraw it nor to call
up anyone with authority to do so." [Emphasis supplied.]
21 Earlier herein, I found that Donahoe's position was such that lie must be held an agent
of the Respondent In addition to the facts set forth in section III, B, above, in connec-
tion with that finding, it is relevant to note that, (1) At the hearing, Bauman explained
Donahoe's presence at the plant on the night in question on the ground that "tie was
probably out there because there was a personnel disturbance in the plant," and•(2) when
Bauman arrived at the plant for his conference with the employees, Donahoe remained
with him throughout that meeting.
SOLO CUP COMPANY 135
termination was, a constructive discharge but no brief . or argument was ever sub-'
mitted in support of the complaint or this particular allegation . In any event, as far
as the evidence is concerned , it is my conclusion , and I find, on the foregoing
facts, that the General Counsel has failed to prove that Bradley's termination was
other than voluntary.
2. Lyda B. Palmer
Shortly after returning to work on June 23 this employee learned that she would
have to undergo a serious operation. On about July 6 she told Bauman that she would
require a 2-month leave of absence for that purpose and that she was then too ill
to work. The plant manager told her that the company policy would only allow her
a maximum of 2 weeks' leave and that he would call her about the matter in a few
days. Shortly thereafter ,25 Bauman telephoned her to state that she was being termi-
nated but that upon recovery from her illness she could reapply for her job.
Palmer had her operation and was physically able to go back to work about Sep-
tember 15 , but she never sought reemployment.
Bauman testified that the Company had a standard practice of not granting any
more than a 2-week leave of absence and that when an employee was to be out for
any longer she was terminated and her name removed from the payroll until she came
back.26 His testimony was in large measure corroborative of that given by Palmer.
He further testified that he had suggested to her that she notify the Company when
she was ready to return to work.
On the basis of the above facts it does not appear to me that Palmer's case was
handled in a manner differently from that in which the Company customarily granted
leaves of absence . Consequently, I can perceive no basis for finding that Palmer was
discriminatorily treated in this connection and will recommend that the allegation to
that effect in the complaint be dismissed.
3. Ruth Welborn
This employee was hired about September 1, 1953, as a cup inspector . She testified
that she took some part in the union activity which preceded the election but the
record does not disclose whether she ever signed an authorization card. Her meeting
with Donahoe during the course of his interviews with the employees has already been
set out above . She was terminated in July, allegedly for failing to notify the Company
as to the reason for her absence from work.
According to Welborn , on July 9 she was unable to report for work because of a
sore foot and prior to the beginning of her shift asked Mrs . Warden, a fellow em-
ployee, to convey that message to the Company . On July 15 she returned to the
factory and was told by her foreman that she had been terminated because she had
not submitted a satisfactory report as to why she was absent and because she had
been off work for over 3 days without notifying the Company . She then asked
Donahoe if she could reapply for her job and the latter told her that "we have your
application here, and we 'd be glad to leave it just like that ." 27 Welborn then left the
plant. She has never been reemployed . Mrs. Moreland , floorgirl on Welborn 's shift,
testified that she never received any report on that employee 's absence other than a
statement from Warden on July 9 that Welborn had told her that she was not going
to ride to work with her that night. According to Moreland , Warden further stated
that she did not know whether Mrs. Welborn intended to remain at home that night
or whether she planned to come to work with some one else. The floorgirl testified
that when nothing further was heard from the employee she was terminated.
Welborn conceded that she knew about the Company's 3 -day rule on absences.
Despite the General Counsel's reliance on Warden 's having relayed Welborn 's message
and the fact that Warden was still in the Company's employ, the latter was never
called as a witness at the hearing. As a result, due to a lack of confidence in Welborn's
credibility, as set out earlier, supra, section III, B , and the absence of satisfactory proof
that any message from Welborn to the plant management was ever sent or delivered,
I am totally unconvinced that Welborn complied with the established rule on reporting
absences The General Counsel offered no proof that would tend to show that the
rule was lightly regarded or that Welborn's case was treated differently from others.
Only about a week before her termination the Company had permitted Welborn to
25 Palmer thought he called on July S; Bauman testified that he called on about July 13
26 Dorothy Hedger testified that during an extended illness in the early part of 1954 she
received a 6-week leave of absence . When her paycard was subsequently introduced,
however , it corroborated Bauman's testimony for that record showed that her name had
been removed from the payroll when she became sick and reinstated upon her return.
=T The quotation is from Welborn' s testimony.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer to a more desirable shift in order that the employee be better able .to take
care of her aged mother- in-law . In view of all the above facts, it is my conclusion,
and I find , that the General Counsel failed to prove that Welborn ever satisfactorily
reported her absence and further failed to prove that the employee 's subsequent termi-
nation was discriminatory within the meaning 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 con-
nection with its operations described in section I, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices , I will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act. Having found that the Re-
spondent discriminatorily discharged Mary Page on June 16, 1954, I will recommend
that the Respondent offer her immediate and full reinstatement without prejudice to
her seniority or other rights and privileges , and make her whole for any loss of earn-
ings that she may have suffered by payment to her of a sum of money equal to that
which she normally would have earned from the date of the discriminatory discharge
to the date of the Respondent 's offer of reinstatement , less net earnings during said'
period. The back pay provided for.herein shall be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289;
earnings in one particular quarter shall have no effect on the back-pay liability for
any other period . I will likewise recommend that the Respondeht make whole Joyce
Westmoreland, Elizabeth L. Bradley, Emma Warden, and Lyda B. Palmer, for any
loss of pay suffered because of their discriminatory suspension from June 17 to 23,
1954.
I will also recommend that the Respondent , upon reasonable request, make avail-
able to the Board and its agents , for examination and copying , all payroll and other
records pertinent to an analysis of the amount due as back pay.
Since I have found that the Respondent , by various acts, interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act and par-
ticularly because of the discriminatory discharge of Page, I am persuaded that the
unfair labor practices committed are ielated to other unfair labor practices proscribed
and that the danger of their commission in the future is to be anticipated from Re-
spondent 's conduct in the past . Accordingly , in order to make effective the independ-
ent guarantees of Section 7 and thus effectuate the policies of the Act , I will recom-
mend that the Respondent cease and desist from in any manner infringing upon the
rights of employees guaranteed by the Act. May Department Stores v. N. L. R. B ,
326 U. S. 376, 386-392.
CONCLUSIONS OF LAW
1. The Respondent is, and at all times relevant herein was , 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 the Act.
3. By discriminating in regard to the hire and tenure of employment of Mary
Page, thereby discouraging membership in the Union , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Joyce
Westmoreland, Elizabeth L. Bradley, Lyda B. Palmer, and Emma Warden, thereby
discouraging employee participation in protected concerted activity , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (3) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise of
the 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.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondent did not discriminatorily discharge Jean Kenagy or Mary
Pruitt , nor discriminatorily terminate the employment of Elizabeth Bradley, Lyda B.
MEDDIN ENTERPRISES 137
Palmer,. or Ruth Welborn, as alleged in paragraph 7 of the complaint; norr has it
interfered with, restrained, or coerced its employees by any acts or conduct other
than those found herein to have been committed in violation of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Puisuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, A. F. L., or in any other labor organization of
our employees, by discharging or refusing to reinstate any of our employees,
or in any other manner discriminating in regard to their hire or tenure of em-
ployment, or any term or condition of their employment.
WE WILL offer to Mary Page immediate and full reinstatement to her former
or substantially equivalent position without prejudice to any seniority or other
rights previously enjoyed, and make her whole for any loss of pay suffered as a
result of the discrimination against her.
WE WILL make whole Joyce Westmoreland, Elizabeth L. Bradley, Emma
Warden, and Lyda B. Palmer for any loss of pay suffered as a result of their
discriminatory suspension on June 17, 1954.
WE WILL NOT interrogate our employees concerning their activities on behalf
of International Brotherhood of Pulp, Sulphite and Paper Mill Workers,
A. F. L., or any other labor organization in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act; nor will we
threaten our employees with loss of employment or with other reprisals for
engagipg in union and/or concerted activities.
All our employees are free to become, remain, or refrain from becoming members
of any labor organization, except to the extent that this right may be affected by
agreements in conformity with Section 8 (a) (3) of the National Labor Relations
Act, as amended October 22, 1951
SOLO CUP COMPANY,
Employer
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Meddin Enterprises , Incorporated and Meat Cutters , Packing-
house and Allied Food Workers Union , Local 433, AFL.
Case No. 10-CA-1938. September 21, 1955
RULING ON APPEAL
On January 11, 1955, a hearing was held before Trial Examiner
Sidney L. Feiler in the above-entitled proceeding for the purpose of
adducing evidence and considering arguments with respect to whether,
in light of the Board's 1954 standards, the Respondent's operations
have a sufficient impact upon interstate commerce to warrant the exer-
cise of jurisdiction. The hearing was then adjourned sine die without
consideration of the merits of the complaint in order to permit the
Trial Examiner to rule on the jurisdictional issue on the basis of a
114 NLRB No. 30.