St. Regis Paper Co.

National Labor Relations Board - Board Decisions

Feb 1, 1980

247 N.L.R.B. 745 (N.L.R.B. 1980)

ST. REGIS PAPER COMPANY
St. Regis Paper Company and United Paperworkers
International Union, Local No. 753, AFL-CIO and
Dan C. Husk. Cases 6-CA-11332 and 6-CA-11786
February 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 17, 1979, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found, inter alia,
that Respondent had violated Section 8(a)(3) and (1)
of the Act by (a) transferring work out of its Grafton
plant to eliminate overtime because the Union had
filed a grievance, and (b) thereafter laying off 15 of its
employees at Grafton for lack of work. In so finding,
the Administrative Law Judge relied primarily upon
the credited testimony of a number of employees that
various of Respondent's supervisors told employees (a)
on occasions beginning on March 6, 1978, that work
had been transferred to eliminate overtime, and (b)
later telling employees that the layoffs in April 1978
were because of the union grievance protesting that
employees were being compelled to work an unreason-
able amount of overtime. Indeed, the record is replete
with statements linking the work transfer, elimination
of overtime, and resulting layoffs to the Union's
pursuit of the overtime grievance. Through these
statements, the General Counsel established a number
of 8(a)(1) violations, and also put forward a prima
facie case that the transfer of work and the layoffs
were in retaliation for the grievance and, hence, were
violative of the Act. Respondent thereafter had the
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
: While General Counsel has excepted to the Administrative Law Judge's
failure to include employee Dan Husk in the list of employees to be made
whole because of Respondent's transfer of work. we conclude that there is no
247 NLRB No. 105
burden of establishing, by credited and/or other
probative evidence, that its conduct was the result of
legitimate business considerations. Bedford Cut Stone
Co., Inc., 235 NLRB 629 (1978); Central Press of
California, 210 NLRB 765 (1974). We find that
Respondent failed to meet that burden.
Specifically, we note that Respondent relied only on
the oral assertions of various of its officials that the
transfer of work was economically motivated, and
presented no documentary evidence to support its
contentions. Respondent argues that by requiring
documentary evidence to support these assertions the
Administrative Law Judge unfairly put the burden on
Respondent to prove its innocence instead of on
General Counsel to prove his case. We reject Respon-
dent's argument. In light of the credited statements by
various employees, noted above, as to what reason a
number of Respondent's own supervisors had assigned
for the transfer, the Administrative Law Judge was
quite correct in rejecting as legally insufficient Re-
spondent's oral testimony to the contrary and in
drawing an adverse inference from Respondent's
failure to submit documentary evidence in support of
its contentions. Under all the circumstances, we
conclude that the General Counsel fully established
his prima facie case, and that Respondent thereafter
failed to sustain its contentions that economic consid-
erations caused the transfer of work and the layoffs.
Accordingly, we agree with the Administrative Law
Judge, as more fully described by him, that Respon-
dent violated Section 8(a)(3) and (1) in the transfer of
work, and in the layoffs.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, St.
Regis Paper Company, Grafton, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph l(b) and
reletter the remaining paragraphs accordingly:
"(b) Transferring work from the Grafton, West
Virginia, plant to other facilities because the Union
proof that the decrease in hours suffered by Husk in the relevant time period
was a result of the illegal transfer of work. Hence, we will not include his
name in the remedial order.
General Counsel has excepted to the Administrative Law Judge's inadver-
tent failure to include in his recommended Order and notice a provision
requiring Respondent to cease and desist from transferring work from the
Grafton plant because the Union has filed a grievance. We find merit in that
exception, and we shall amend the recommended Order and notice according-
ly.
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed and processed a grievance under the collective-
bargaining agreement."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees that work and
overtime will be, or have been, eliminated, or that
employees were laid off because the Union filed
grievances under the collective-bargaining agree-
ment.
WE WILL NOT transfer work from the Grafton,
West Virginia, plant to other facilities because the
Union filed and processed a grievance under the
collective-bargaining agreement.
WE WILL NOT lay off or otherwise discriminate
against employees because the Union filed and
processed grievances relating to working condi-
tions.
WE WILL NOT threaten to close the plant
because unfair labor practice charges were filed
with the Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL make whole the following named
employees for any loss of pay they may have
suffered as a result of the discrimination against
them by paying them a sum of money equal to
that which they would have earned absent the
discrimination, plus interest.
Rich Able Barbara Shahan
Aretha Boylen William Stach
Jack Current Ray Strader
Gertrude Hilkey James Robinson
William Hunt Sandra Whisner
John Long James Kilpatrick
Robert Reed Arie Shingleton
Tim Perry
ST. REGIS PAPER COMPANY
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon unfair
labor practice charges filed by United Paperworkers Interna-
tional Union, Local No. 753, AFL-CIO, herein called the
Union, on June 13, 1978, in Case 6-CA-11332 and by Dan
C. Husk, an individual, on November 13, 1978, in Case 6-
CA-11786, against St. Regis Paper Company, herein called
Respondent, separate complaints issued on August 1, 1978,
and on December 21, 1978, respectively. The cases were
consolidated for hearing on the latter date. The complaint in
Case 6-CA-1 1332 charges Respondent with having violated
Section 8(a)(1) of the Act by informing employees that work
had been transferred to another plant, overtime had been
eliminated, and employees had been laid off because of a
grievance filed by the Union. The complaint also alleges that
Respondent threatened an employee with an unspecified
reprisal because of his union activity and threatened plant
closure because of unfair labor practice charges filed by the
Union with the Board. It further alleges that Respondent
violated Section 8(a)(3) and (1) of the Act by laying off 16
employees who were all later recalled because of the
grievance filed by the Union regarding the assignment of
overtime. The complaint in Case 6-CA-11786 alleges that
Respondent violated Section 8(a)( 3) and (1) of the Act by
failing to rehire Dan Husk because of his union activities.
Respondent denied the commission of any unfair labor
practices. Hearing was held before me on January 18 and 19,
1979, at Grafton, West Virginia.
Upon the entire record and my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and Respondent,' I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with its principal
office located in New York, New York, and a facility located
in Grafton, West Virginia, is engaged in the manufacture
and nonretail sale of paper products. Respondent annually
ships goods and materials valued in excess of $50,000 from
its Grafton, West Virginia, facility directly to points outside
the State of West Virginia. It annually receives at its
Grafton, West Virginia, facility goods and materials valued
in excess of $50,000 directly from points located outside the
State of West Virginia. The parties agree and I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
' I have also considered a memorandum filed by Union President Long.
746
ST. REGIS PAPER COMPANY
Ill. THE UNFAIR LABOR PRACTICES
A. The Events
The Union has been the collective-bargaining representa-
tive of Respondent's employees at the Grafton plant since
1959. The most recent contract between the parties is
operative from November 1, 1977, to November 1, 1980.
Respondent is engaged in manufacturing custom-made
corrugated containers, which include outer boxes and
interiors, on orders from its customers. Initially, corrugated
sheets are produced from which the containers are formed.
On January 1, 1978,1 a new slate of union officers assumed
office, including Union President John Long and Chief
Steward Pres Knight. For some time the employees felt that
they had been required to work too much overtime. Article
II, section A, of the contract reads in pertinent part as
follows: "Working time over the normal work day and
normal work week shall be overtime and may be scheduled
by the Company to meet operational requirements. When an
employee, for cause, does not accept offered overtime work,
then the Company may secure the most readily available
qualified replacement. On failure to secure a qualified
replacement, or when an entire shift is required to work
overtime, the Company may require the regular employee or
employees to accept reasonable overtime work." On March
3 Long submitted a grievance to Respondent complaining
that the employees were being compelled by Respondent to
work an unreasonable amount of overtime. The grievance
was prepared by Long and was signed by 65 employees.'
Beginning the latter part of April, Respondent laid off 15
employees. The General Counsel contends that because the
Union had filed the grievance complaining about the
reasonableness of the amount of overtime the employees
were required to work, Respondent thereupon transferred
the work being done for its customer, National Bottle, from
the Grafton plant to its Pittsburgh plant and thereafter
caused the layoff of 16 employees.' Respondent admits that
the employees were laid off and recalled on the dates
indicated, except for Husk. Respondent also admits that
work was transferred to the Pittsburgh plant but contends
that the decision to transfer the work was based on economic
considerations, and that the layoffs were not attributable to
the transfer of the work.
'. ll dates hereinafter refer to 1978 unless otherwise indicated.
'There were about I I I employees in the bargaining unit.
'The complaint in Case 6-CA- 11332 alleges that the following employees
were affected: Rich Able, Aretha Boylen, Jack Current, Gertrude Hilkey,
William Hunt, Dan Husk, John Long, Robert Reed, Barbara Shahan, Arie
Shingleton. William Stach, and Ray Strader were all laid off April 24; Able
was recalled July 17, Boylen July 3, Current June 26, Hilkey July 3, Hunt July
3, Husk May 10, Long July 3, Reed June I, Shahan July 3, Shingleton June 1.
Stach June 28, and Strader July 3. Sandra Whisner was laid off May 15 and
recalled June ,. James Kilpatrick and Tim Perry were laid off June I and
recalled July 3.
As described later, Husk was not laid off, but he did not work full weeks
following the April 24 layoffs.
' At the time employees were working 10 hours per day and about every
other Saturday.
I Respondent began shipping the printing dies to the Pittsburgh plant on
March 29.
B' ased upon the composite testimony of Long, Robinson, and Pres Knight.
Sarandos did not testify. Neither Summers nor Wolfe recalled this March 31
meeting. Moore testified that he was present but did not further elucidate.
A grievance meeting concerning the overtime grievance
was held on March 6. Present for Respondent were Peter
Sarandos, regional manager of industrial relations; Paul
Summers, general manager; Ellis Wolfe, production manag-
er; and William Moore, personnel manager. Present for the
Union were Long, Pres Knight, Union Vice President James
Robinson, and George Markley. At the meeting Sarandos
and Summers accused the Union of wanting to do away with
overtime, and Long and Knight contended that they only
wanted to search for some agreement as to what constituted
a "reasonable" amount of overtime work.' Sarandos and
Summers both said that if the Union pursued the grievance
Respondent would eliminate the overtime completely and
then there would be no problem. The next grievance meeting
was on March 31. The parties were represented by the same
individuals. Once again the union representatives denied
Respondent's accusation that it was attempting to do away
with overtime. Long asked why the printing dies for the
National Bottle order were being shipped out.' Sarandos and
Summers said that the National Bottle work represented
one-sixth of the footage being produced that work was being
transferred to the Pittsburgh plant, and that the overtime at
Grafton would be eliminated.'
Early in April, Gerald Runner, an employee, asked Moore
what Respondent intended to do about the overtime. Moore
replied that the plant had lost the National Bottle orders
because the employees did not want to work overtime.'
Employee French Guthre credibly testified that in early
April he asked Foreman Joe Knight' why Respondent was
shipping out so many National Bottle printing dies. Knight,
in substance, replied that the transfer was because employees
did not want to work overtime, as indicated by the grievance
filed by the Union. Pres Knight credibly testified that he
asked Foreman Joe Knight if the transfer of the National
Bottle order was partly due to the grievance. Foreman
Knight replied that it could be due to the grievance, and that
the union committee or Long was pushing things too
much."' Employee Stach, one of the employees laid off on
April 24, asked Moore for low earnings slips which he
needed for unemployment compensation. Moore told him
that he would not have to worry about overtime anymore."
This conversation took place shortly after the April 24
layoff. Long was one of the employees laid off on April 24.
On April 26 he went to see Moore concerning the layoff and
the possibility of recall. Moore told him that Hall, Respon-
Both Summers and Moore denied ever stating, or hearing company officials
say that work was transferred because the Union had filed the grievance
concerning overtime. I am also persuaded that the employees were told at this
meeting the National Bottle footage represented one.sixth of the footage. I
have not ignored Summers' testimony that in March the Grafton plant ran 32
million square feet in April it ran 21 million square feet, and that of the II
million difference 2 million represented the National Bottle work. Hall said
that it was 2 to 3 million. No records were produced to support these figures.
Based on the credited testimony of Runner, corroborated by employee
William Hunt who was present. The General Counsel, in his questions, had
suggested to the witnesses the date of April I as the time of this conversation.
They then related the conversation. I am aware that Moore was on vacation
the first week in April, as he testified. Nonetheless, I believe that he did make
the statement attributed to him, probably in the second week in April.
'No relation to Chief Steward Pres Knight.
"' Pres Knight placed his conversation as having taken place in about mid-
March. He obviously was in error since the work was not transferred until the
beginning of April. I find that this conversation took place in April before the
April 24 layoff.
" This was an obvious inference the layoff was because of the grievance.
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's regional manager, had directed the National Bottle
order be transferred to the Pittsburgh plant. At Long's
request Moore met with a number of the laid-off employees
the next day to answer questions concerning the layoff.
Moore was asked if the layoff was permanent or temporary.
Moore indicated that business was poor and suggested the
employees seek other employment. Long asked why the
employees were laid off. Moore replied that the grievance
had been filed saying the employees did not want to work
overtime so the solution was to transfer work to another
plant to eliminate the overtime." Early in April, Foreman
Joe Knight called Long away from his work station and
talked to him in the parking lot. Knight told Long that he
should not stand around and talk when he was supposed to
be working or take excessive time on his breaks. Knight also
told him that as a union president Long should set an
example for the employees in the bargaining unit. He told
Long to pass this on to Chief Steward Pres Knight. The
accounts of this conversation by Long and Knight are
substantially in accord. Knight had been an hourly employee
and a member of the Union's negotiating committee before
becoming a foreman. He testified that he made these
comments to Long because if he tolerated this idle time
other employees would feel they were not being treated
equally. Contrary to the General Counsel, I do not view
Knight's comments to Long as a threat to inhibit him from
exercising his Section 7 rights. Pres Knight testified that he
had a conversation with Moore in early June concerning a
failure to recall Long. They disagreed on the merits, and
Knight remarked that in the future the Union would file
unfair labor practice charges. According to Knight, Moore
replied, "Well, you don't want to do that . . . they may
come down here and shut the doors down on the plant and
shut this plant down." Employee James Robinson testified
that he had heard from other employees an unfair labor
practice charge had been filed against Respondent and asked
Moore about it. Moore replied, "This kind of charge can get
the doors locked." On cross-examination he added that
Moore also suggested the dispute could have been handled
through the grievance procedure. Robinson placed this
conversation as having taken place on June 16 or 17. Moore
denied making any threat or prediction about plant closure.
I am persuaded that Moore did tell both Knight and
Robinson that the filing of unfair labor practice charges
against Respondent could lead to plant closure.
B. Concluded Findings as to Interference, Restraint, and
Coercion
As related above, I have found that Respondent's supervi-
sors, Sarandos, Summers, Moore, and Knight, told employ-
ees that the National Bottle work had been transferred to the
Pittsburgh plant and overtime would be or had been
eliminated because of the overtime grievance filed by the
Union. I find that such statements linking the loss of work
and overtime to the Union's pursuit of a grievance under the
collective-bargaining contract tended to create a chilling
effect on the employees' rights to file or process grievances.
': Based on Long's credited testimony, corroborated by employee William
Hunt.
" 15.000 to $22,000 for the month.
In so doing Respondent violated Section 8(a)(1) of the Act. I
also find that Moore's statements to employee Stach and to a
group of employees shortly after the April 24 layoff, linking
the layoff to the union grievance concerning the overtime,
constituted a violation of Section 8(a)(1) of the Act.
Respondent further violated Section 8(a)(1) of the Act by
Moore's statements to employees Pres Knight and Robinson
that the filing of unfair labor charges against Respondent
could lead to plant closure.
C. Respondent's Defense to the Layoffs
Respondent contends that the work for the National
Bottle account was transferred from the Grafton plant to its
Pittsburgh plant because of economic considerations and
was not predicated on the Union's grievance relating to
overtime.
Robert Hall is Respondent's regional manager for the
container division, northeast region, with his office located
in Pittsburgh. He has overall responsibility for a number of
plants, including the Pittsburgh and Grafton plants. He
testified that towards the latter part of March he saw the
operational figures of the Grafton plant and noted that it
was operating at a loss for that month." At the time, the
Grafton plant operated two shifts and the Pittsburgh plant
operated three shifts. The Pittsburgh plant, according to
Hall, was low in orders and operating at close to the break
even point. Hall testified that during this period the Grafton
plant was operating its corrugator at full capacity and was
unable to produce sufficient flat sheets (footage) to fabricate
the cases for its orders. Because of this situation the
Pittsburgh plant was shipping additional flat sheets to the
Grafton plant, adding what Hall determined to be excessive
cost to the Grafton plant.' Hall testified that the Grafton
plant had more work than it could handle for two shifts but
not enough to put on a third shift, whereas the Pittsburgh
plant, operating on three shifts, had insufficient work. On
about March 24 or 25 he directed Summers to coordinate
with the Pittsburgh management and transfer work to the
Pittsburgh plant. He also pointed out the excessive cost to
Grafton by having the footage shipped from Pittsburgh.
There were two parts to the container being fabricated at
Grafton for National Bottle-the outer box and the interior.
The Pittsburgh plant had been shipping the sheets of
cardboard to the Grafton plant, which in turn produced the
outer case and the interior and then shipped the products by
its trucks to National Bottle located in Parkersburg, West
Virginia. The transfer of work to the Pittsburgh plant was
effected about April 1. After the transfer the corrugated
board to make the outer box was no longer shipped from
Pittsburgh. The outer boxes were produced in the Pittsburgh
plant from where they were shipped in trucks to National
Bottle in Parkersburg. The Grafton plant continued to
produce the interior part of the specification, i.e., the
partitions and pads which fit inside the boxes which it
shipped directly in its trucks to Parkersburg. Hall testified
that at the time he discussed the transfer of work from
Grafton to Pittsburgh with Summers he was unaware of the
" The cost of shipping the sheets from Pittsburgh to Grafton and the
handling of the sheets at the Grafton plant.
748
ST. REGIS PAPER COMPANY
overtime grievance. Summers testified that on about April
17 the volume of work at the Grafton plant had dropped
drastically, and he told Wolfe to effect a layoff because of
insufficient work to keep all the employees working. Wolfe
selected the employees to be laid off. No contention is made
that seniority was not followed in the layoff. Summers
testified that the layoff was not caused by the transfer of the
National Bottle orders. He testified that in March the plant
ran 32 million square feet, whereas in April it ran only 21
million, and of the 11 million difference the National Bottle
work transferred accounted for only 2 million. According to
Hall, both the Grafton and Pittsburgh plants showed
operating profits in April. According to Summers, business
picked up again in July due to the seasonal increase in
orders, and employees were recalled. The National Bottle
account was transferred back to the Grafton plant in
October.
Respondent points out that layoffs are not unusual in the
normal course of business at the Grafton plant. In 1977, 12
employees were laid off in January and were recalled in
periods ranging from 1 week to 5 months later. ' In 1976
there were more substantial layoffs during various times of
the year. Some were recalled within I month after layoff,
and others were not recalled until some months later. Some
were laid off as many as six times during the calendar year,
including Long. In March 1976, 10 employees were laid off
for I to 2 months.'" In March 1978 the total overtime hours
worked were 2,370, in February 2,738, and in January
2,266."
D. Discussion
Although Respondent introduced documentary evidence
to show the overtime hours worked during the first 3 months
of 1978 and the layoffs in 1976 and 1977, no documentary
evidence was introduced to support the oral testimony of
Respondent's witnesses to show the Grafton plant suffered a
loss in March, the amount of square footage produced in
January and February,'" to support the oral testimony of the
footage produced in March and April, or to show how long
the Grafton plant had been receiving flat sheets from the
Pittsburgh plant." Nor was there any documentary evidence
to support the oral testimony concerning the proportion of
the amount of National Bottle work to the total production
at the Grafton plant. The most significant factor to support
the General Counsel's theory that the transfer of the work
and resultant layoffs were discriminatorily motivated was
the credited testimony that Respondent's responsible offi-
cials told employees the National Bottle account work was
transferred to the Pittsburgh plant to eliminate the overtime
and that the layoffs were because of the union grievance
relating to the overtime." The overtime obviously was
because of the abundance of work. It appears from the
testimony that flat sheets were being shipped from the
Pittsburgh to the Grafton plant well before March. Yet the
Grafton plant showed profits in January and February. No
documentary evidence was introduced to show that the
" Resp. Exh. 6.
" Resp. Exh. 5.
" Resp. Exh. 8.
" Summers testified that he did not know the amount of square feet for
those 2 months without checking the records.
Grafton plant showed a loss in March, let alone that any
such loss was attributable to the shipments of sheets from
Pittsburgh to Grafton. Summers testified that more footage
was produced in March than in either January or February
but he did not know the amount for those 2 prior months
without checking the records. No records were produced.
He testified that because there was more footage in March
more overtime work likely would have been performed in
March. Yet there were 368 less overtime hours in March
than in February and only 104 more overtime hours than in
January. Summers also testified that flat sheets were being
shipped in from Pittsburgh because the Grafton corrugator
was operating at full capacity. He further testified that he
did not check the records to determine if the same situation
existed in January or February. No records were produced.
Respondent argues that the loss was attributable to the
additional cost of shipping the flat sheets from Pittsburgh to
the Grafton plant. Yet the Grafton plant showed profits in
both January and February. The work for National Bottle
consisted of two components, the outer box and a set of
partitions. Prior to the transfer the Grafton plant shipped
both components to National Bottle in Parkersburg in its
own trucks, a distance of about 90 miles. Shipments of flat
sheets were sent from the Pittsburgh to the Grafton plant by
Respondent's Pittsburg plant trucks several times each week
but not daily, a distance of about 100 miles. After the
transfer the Pittsburgh plant shipped the outer boxes in its
own trucks daily to Parkersburg, a distance of about 144
miles, and the Grafton plant shipped the interiors in its own
trucks daily to Parkersburg." It was acknowledged that the
Pittsburgh drivers received a considerably higher rate of pay
than the Grafton drivers. Both Hall and Summers testified
that the transfer of work between plants is commonplace.
Yet Summers testified that he could not recall without
consulting Respondent's records the last time work had been
transferred from Grafton to Pittsburgh. No records were
produced. Hall also could not recall the last time such
transfer was made. Summers testified that the layoffs were
necessitated by a drastic decline in the square footage being
produced. He testified that 11 million less square feet were
produced in April than in March. However, since his
instructions to Wolfe to lay off employees was on about
April 17, he had no such figures before him at the time. He
also testified that he had a daily record showing the volume
of square feet produced and shipped and the volume
gradually declined during April. He also testified that he
could not predict for more than 2 to 4 weeks ahead how
much work the plant would have because the lead times for
orders are not for a longer period. It seems incredible to
believe that under these circumstances Respondent would
transfer a substantial amount of work from the Grafton
plant without recognizing that 2 weeks later it might have
had insufficient work for the Grafton employees. Based on
the entire record, I find that the transfer of the National
Bottle work from the Grafton to the Pittsburgh plant was to
eliminate overtime because the Union had filed a grievance
complaining about the reasonableness of the amount of
"' Hall testified at one point that it could have been February or January.
"' Contrary to Hall's testimony, I believe that he was aware of the union
grievance concerning the overtime.
:' Contrary to Summer's testimony, the two plants are not about equal
distance to Parkersburg.
749
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overtime required to be worked. I also find that the resulting
layoffs were attributable to the transfer of such work to the
Pittsburgh plant, which in turn was effected because of the
grievance. Accordingly, I further find that by transferring
the work out of the Grafton plant to eliminate overtime and
by laying off the employees alleged in the complaint on the
dates indicated, except for Husk who will be discussed
below, Respondent violated Section 8(a)(1) and (3) of the
Act.
E. The Refusal To Rehire Dan Husk
Husk was first employed by Respondent in September
1975. In October 1977 he hurt his back and was away from
work for several days. Husk was not laid off on April 24,
1978, but did work less than full weeks until May 15, when
he again suffered back problems and was absent from work
until July II. During this period he collected workmen's
compensation. He returned to work on July II11. On July 14
he told Respondent that he had found another job at West
Virginia University, where the work would be less strenuous.
He quit. In the latter part of September, having heard that
Respondent was hiring, he sought employment. He was not
rehired. Moore testified that after Husk applied for reem-
ployment he spoke to Joe Knight, who had been Husk's
supervisor when Husk had worked there. Knight told Moore
that Husk had not been one of the better employees and was
not receptive to following orders. Both Knight and Moore
were also aware of Husk's back problem when he had
worked there previously. When Husk returned to the plant
to ascertain why he had not been rehired Moore told him
that a supervisor did not give him a favorable recommenda-
tion. Moore refused to name the supervisor. Long testified
that he learned from Husk that Moore had said two of three
supervisors had given him a bad reference and stated that
Husk had a bad attitude. Long further testified that he
checked with five foremen. Four of them were not aware
that Husk was seeking to return. According to Long, he also
spoke to Joe Knight, who told him that Husk had a bad
attitude and was always complaining and running to the
Union. Knight credibly denied saying anything to Long
about Husk's complaints to the Union. Husk was I of the 65
employees who signed the overtime grievance. In addition,
he was involved in two first-step grievances in mid-March
when he complained that another employee had been
assigned overtime work to which he was entitled on 2
successive days. At this first step Respondent acknowledged
the mistake, and the grievances were adjusted informally
and amicably with Husk by paying him for the 4 hours'
overtime. Joe Knight was not even involved in the grievance.
I find the evidence insufficient to support the General
Counsel's contention that Respondent failed to rehire Husk
because of his exercise of his Section 7 rights. Accordingly, I
shall recommend dismissal of the complaint in Case 6-CA-
11786, wherein the sole unfair labor practice allegation
consisted of the failure to rehire Husk.
" See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
CONCLUSIONS OF LAW
1. Respondent is an employer 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 informing employees that work has been transferred
away from the Grafton plant to eliminate overtime and that
the resulting layoff was because the Union filed and
processed a grievance relating to overtime, and by threaten-
ing plant closure because of the filing of unfair labor practice
charges against Respondent with the Board, Respondent
violated Section 8(aX 1) of the Act.
4. By transferring work from the Grafton plant, thereby
eliminating overtime work, and by laying off the following
named employees because the Union filed and processed a
grievance under the collective-bargaining contract, Respon-
dent violated Section 8(a)(1) and (3) of the Act.
Rich Able
Aretha Boylen
Jack Current
Gertrude Hilkey
William Hunt
John Long
Robert Reed
Barbara Shahan
Arie Shingleton
William Stach
Ray Strader
James Robinson
Sandra Whisner
James Kilpatrick
Tim Perry
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
6. Except as set forth above the General Counsel has not
established by a preponderance of the credible evidence that
Respondent has violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that Respon-
dent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily laid off
the employees named above in section IV, I shall recom-
mend that Respondent make them whole for any loss of
earnings and employee benefits they may have suffered from
the date of layoff until they were recalled. The amount of
backpay shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 117 (1977).2
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER2
The Respondent, St. Regis Paper Company, Grafton,
West Virginia, its officers, agents, successors, and assigns,
shall:
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
750
ST. REGIS PAPER COMPANY
I. Cease and desist from:
(a) Informing employees that work and overtime will be
or has been eliminated or that employees were laid off
because the Union filed grievances under the collective-
bargaining agreement.
(b) Threatening plant closure because of unfair labor
practice charges filed with the Board.
(c) Laying off or otherwise discriminating against employ-
ees because the Union filed and processed grievances relating
to working conditions.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Make whole the employees named above in section IV
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
2' In the event that this Order is enforced by a Judgment of a United States
court of appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
nel records and reports, and all other records necessary or
useful to a determination of the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Grafton, West Virginia, copies of
the attached notice marked "Appendix."" Copies of said
notice, or forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's represen-
tative, shall be posted immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable step shall be
taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint in Case 6-CA-
11332 be dismissed insofar as it alleges violations of the Act
not specifically found herein, and that the complaint in Case
6-CA-11786 be dismissed in its entirety.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
751