United Papermakers and Paperworkers

National Labor Relations Board - Board Decisions

Sep 14, 1966

160 N.L.R.B. 1108 (N.L.R.B. 1966)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no evidence at all to reflect that there were any substantial delays in publication
during the period the machinists were assigned to maintain the equipment in the
composing room
Kitts testified, in response to leading questions, that during this period advertise-
ments were omitted from the newspapers "at a greater frequency" than was the
case when the equipment was maintained by the machinists. I am constrained not
to accord any weight to this testimony, unsupported as it is by any documentary
evidence or other pertinent detai137 Accordingly, I find that the Employer has not
established that the assignment of the work in question to the electricians caused
news items or other matter to be omitted from its publications.
There can be no doubt, however, that the electricians engaged in excessive "down
time" during the period they were assigned to the disputed work In this regard I
need only refer to the instances cited earlier in this report where it has been found
that the electricians were unable to repair the equipment or engaged in excessive
downtime in effecting certain repairs. The evidence also reflects, and I find, that
during this period the Employer was required to pay overtime which would not
have been necessitated absent the failure of the electricians to promptly effect the
repair and maintenance work to which they were assigned. Indeed, it is undisputed
that on a number of occasions electricians were recalled from their homes to lend
assistance to electricians who were having difficulty at the plant.38
9. Concluding statement
From the entire evidence in this case, including the various incidents noted
herein, it seems quite apparent, and I think it appropriate so to note, that a chief
problem in determining this dispute is the absence of any clearly defined division of
work between mechanical maintenance and electrical maintenance of the Employer's
composing room equipment. As indicated in the testimony heretofore discussed,
there were some occasions when the electrician spent considerable time working on
a piece of down equipment, only to find the difficulty to be of a mechanical nature.
Similarly, there would be some inevitable duplication of effort if the machinists
were summoned first, only to find the problem to be of an electrical nature. It is
beyond my function to make any determination whether, with a view to eliminat-
ing or minimizing this problem, the machinists and electricians should be granted
further time to work together and/or whether the electricians should be afforded
time for additional training and experience in the maintenance of this equipment 3s
37I find this applicable also to the generalized testimony of Superintendent Miller
"Baird testified that the Employer had an increase of over 400 percent in oiertime
during the month of April. Although this testimony came in without objection, I do not
feel warranted in accepting this figure at its face value without some supporting records,
documentary data, or testimony shown to be predicated thereon
I Ill this connection, William J Stack, the IBEW business representative, testified that
it may very well take 2 or 3 additional months for the electricians "to get familiar with
the functional operations of this equipment."
United Papermakers and Paperworkers , AFL-CIO ( Continental
Can Company, Inc. and Wade Laughrey. Case 8-CL'-971.
September 14,1966
DECISION AND ORDER
On April 4, 1966, Trial Examiner Phil Saunders issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
160 NLRB No. 85.
UNITED PAPERMAKERS AND PAPERWORKERS 1109
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
The Trial Examiner found, and we agree, that Respondent violated
Section 8(b) (1) (A) of the Act by the threats of its agent, Hender-
shott, to the Charging Party, Laughrey, made in the presence of
other employees, that IIendershott would "fire" Laughrey and that
Hendershott would "bring in the big boys from New York" and
"chop up" Laughrey if Laughrey tried to obtain Board decertifica-
tion of Respondent's local union.
In disagreeing with our finding as to Hendershott's threat to
"bring in the big boys from New York" and to "chop up" Laughrey,
our dissenting colleague argues that these phrases do not mean what
they literally say but should instead be interpreted to mean that Hen-
dershott was simply suggesting that he would summon higher union
officials to remonstrate with Laughrey in respect to the latter's union
dissidence. Our colleague rests his argument on an inference which he
draws apparently from certain testimony of Laughrey to the effect
that at least one of the "big boys" mentioned in the threat was a
higher union official, who, in fact, later visited the area on legitimate
union business. From this testimony our colleague concludes that the
threat was at most merely a prediction of the visit. But the record
does not connect the threat with the visit. What the transcript shows
is that Respondent's counsel examined Laughrey about the threat
1 The Respondent's exceptions to the Trial Examiner's Decision are in large part directed
to the credibility resolutions of the Trial Examiner. We will not overrule the Trial Exam-
iner's resolutions as to credibility unless a clear preponderance of all the relevant evidence
convinces us that they are incorrect. Such a conclusion is not warranted here. Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C A. 3 )
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and then about the visit in that sequence, and, further, that counsel
failed in his efforts to connect the two matters.2
As to the threat that Hendershott would "fire" Laughrey because
of Laughrey's position on the decertification of the Local Union, any
possible ambiguity in this remark was cured by what immediately
followed in the course of the meeting at which the threat was made.3
Thus, in rejoinder to this threat by Hendershott, Gerald Lewis,
another of those present, promptly informed Hendershott that, if
Hendershott got Laughrey fired, the latter's fellow employees in the
laminating department would "go on strike." The promise to go "on
strike" is, of course, a prediction that employees will cease working
for their employer in protest of employer action to which they are
opposed. If Hendershott was not referring to potential discharge
action by the Employer here and did not intend to leave that impres-
sion, we believe he would have clarified his position at this juncture.
But he said no more in this regard-simply changed the topic of con-
versation. His silence was tantamount to an admission that Lewis'
expressed understanding of his meaning was the correct one 4 That is,
Hendershott meant that lie would demand that Laughrey be dis-
charged by the Employer. The Trial Examiner so found, and we find
no adequate basis for upsetting his finding in that respect.
2 See cross - examination of Laughrey by counsel for Respondent
Q. Now, what was this business about being chopped up in little pieces1 How did
that go, again 'I
A. He asked-he said, "I ' ll bring the big boys in from New York, and I'll chop you
up into little pieces."
Q. He said he would bring the big boys in from New York?
A. Yes
Q. Did he say i hat big boys he was referring to
A. He did mention Mr. Harry Sayre.
Q. The Executive Vice-President of the U.P P. ?
A. Yes.
Q. Didn't he , in fact, offer to bring Mr. Sayre down to Mt Vernon to address the
Local Union and tall; to them about bargaining with Continental Can Company in
general'
A. At that time'
Q. Yes, sir.
A No
Q. He made no such offer to you'
A. No.
Q. Did not Mr Sayre, in fact, come to Mt. Vernon on August 10th and address a
Local Union meeting in connection with the forthcoming negotiations with Con-
tinental Can Company at Mt. Vernon and Newark?
A. Yes.
Q. Do you know whether or not Mr IIendershott arranged that invitation or not?
A. I don t know who did. [Emphasis supplied. ]
The remark could be considered as being a threat by Hendershott to obtain Laughrey's
discharge from employment. Such a threat would be unlawful . E.g., A. C. Smith Corpora-
tion, Granite City Plant, 132 NLRB 339 , 342. However , without more , the threat could
likewise mean that Hendershott would obtain Laughrey ' s removal from his union posi-
tion-which might have been accomplished by lawful means.
4 See McCornilck, Handbook on the Law of Evidence, § 247 (1954), pages 528, et seq,
and authorities cited therein.
UNITED PAPERMAKERS AND PAPERWORKERS 1111
[The Board adopted the Trial Examiner's Recommended Order.]
MEMBER JENKINS, dissenting :
My view of the facts here leads me to a conclusion different from
that of my colleagues. Hendershott's alleged threat to "bring in the
big boys" and "chop up" those officials of the Local who disagreed
with him was neither meant nor understood to be a threat of physical
violence. At one point the recipients of this alleged threat stated that
if they were "chopped up," Hendershott would "get chopped up with
them," and another recipient of the threat described it as being that
"heads would roll." One of the "big boys" mentioned was Sayre,
executive vice president of the international union, who did in fact
subsequently come to Mount Vernon to address the Local concerning
problems with the Employer. Thus, the threat to "chop up" the dis-
sidents must mean, not physical violence, but an attempt to reduce
the power and authority of the dissidents in union affairs, which is
not a violation of the Act.
Hendershott's alleged threat to "fire" Laughrey was in the same
vein, and on this record cannot be said to amount to more than a
threat to remove him from his position as an official of the Local
Union. At no point did Hendershott state that he intended to induce
or request the Employer to fire Laughrey; at one point Laughrey
himself stated that after he had indicated he might attempt to bring
in an independent union, Hendershott asserted that if this were done,
"the company would fire you in an independent union," indicating
that on the other occasions both sides understood it was not the firing
of Laughrey from his company job which was being discussed. This
alleged threat of firing also was an integral part of the same series of
events which included the alleged threats to "chop up" certain offi-
cials of the Local Union as described above, and in that context must
be understood as, involving action against the dissidents merely in
respect to their positions and powers. within the Union. Accordingly,
I would dismiss the complaint:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on September 20, 1965, by Wade Laughrey, against United
Papermakers and Paperworkers, AFL-CIO, herein called the Respondent Union
or Respondent, the General Counsel issued a complaint on November 5, 1965,
alleging the Respondent Union had violated Section 8(b) (1) (A) of the National
Labor Relations Act, as amended. This proceeding was heard before Trial Examiner
Phil Saunders in Mount Vernon, Ohio, on January 11 and 12, 1966.
The complaint alleges that on April,23, 1965, Respondent Union restrained and
coerced employees of Continental Can Company, Inc., herein the Company, by
threatening employees with discharge and other reprisals because they sought the
assistance of the National Labor Relations Board, and/or desired to file a decertifi-
cation petition against the Respondent Union. The answer denied the commission
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any unfair labor practices. At the conclusion of the hearing the General Counsel
submitted oral argument, and a brief was received from the Respondent Union.
Upon the entire record in this case, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Continental Can Company, Inc., is now, and has been at all times material
herein, a corporation organized under and existing by virtue of the laws of the
State of New York. Continental Can Company, Inc., is engaged in the manufacture
and sale of packaging products at its Flexible Packing Division, Plant No. 26, which
is located in Mount Vernon, Ohio, and during the course and conduct of its busi-
ness operations at said plant, annually ships products valued in excess of $50,000
directly to points outside the State of Ohio. It is conceded, and I find, that the Com-
pany is an employer engaged in commerce and in an operation affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Papermakers and Paperworkers , AFL-CIO, and the Local are labor
organizations within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
The employees at the Company's Mount Vernon plant, the only installation
directly involved herein, have been represented by the Respondent Union's Local
271 for many years. The Company has another plant in Newark, Ohio; where the
employees are represented by the Respondent Union's Local 273, and the two
Locals have bargained jointly for a two-plant unit.' The 1963 contract between
the Company and the two Locals contained provisions for grievance and arbitration.
The grievance procedure provided for five separate steps, the last being arbitration
itself. Arbitration, however, was not mandatory. This contract also had a reopening
clause which provided that certain items could be renegotiated in the fall of 1965,
and in accordance with past practices the joint bargaining committees of Locals
271 (Mount Vernon) and 273 (Newark) met on August 16, 1965,2 to prepare
their agenda, and on August 20 the joint bargaining committees and the Company
started negotiations which lasted until September 11. The employees' bargaining
committees then reported back to their memberships on the Company's proposals,
and initially it was first voted not to accept the proposals. A strike vote was then
taken but this likewise failed to pass , and the Company's proposals were again
considered and this time the membership voted to accept them. The Company's
proposals, as ratified, were then signed by the two Locals and the Company. This
record further shows that on December 3, the Respondent Union (the Interna-
tional) placed Local 271 in trusteeship pursuant to certain provisions under Title 3
of the Landrum-Griffin amendments to the Act, and various aspects of the trustee-
ship are still pending in Federal court.
On October 22, 1964, Wade Laughrey, the Charging Party in this proceeding
who was working in the Mount Vernon plant, filed a grievance with the Company seek-
ing adjustment of the wages of laminating department employees in view of the
fact that new equipment had been installed and production and waste had been
improved. There are about 70 employees in the laminating department. Once the
grievance was filed, it was processed along the four steps provided for in the con-
tract, as aforestated. In the fourth step of the grievance procedure this matter was
discussed with the Company, and by letter dated March 18, addressed to the
Respondent Union's International representative, Kenneth Hendershott, the Company
advised the Union as follows: "The rates of pay of the operators and assistant
operators in the laminating department are presently in line with the other jobs
in the plant and are a true reflection of the efforts required. The Company cannot
' It appears from the record that each Local has had a separate bargaining committee
composed of the respective union president, vice president, financial secretary, and elected
committeemen The two committees have made it a practice of meeting to work out an
agenda prior to opening negotiations with the Company.
2 All subsequent dates herein are 1965 unless specifically stated otherwise
UNITED PAPERMAKERS AND PAPERWORKERS 1113
justify an increase in compensation at this time, accordingly this grievance is
denied." The letter was signed by L. J. LeHane, the Company's supervisor of
employee relations. Nevertheless, Wade Laughrey continued to press the grievance
and asked that a meeting be set up with Respondent Union's International repre-
sentative, Hendershott, in order to find out what Hendershott was doing about the
grievance. This meeting was held in Mount Vernon on April 23, and the only issue
in this proceeding is whether Hendershott made certain coercive statements during
this meeting.
Prior to setting forth some of the pertinent testimony in this record-the individ-
uals primarily involved in this case along with their status and jobs are as follows:
Kenneth Hendershott was formerly employed by the Company in the Mount
Vernon plant. In fact, he first joined Local 271 around 25 years ago when he was
employed by the Company. During his term of employment, he held various offices
in the Local, such as steward, vice president, and finally, president, a position he
held for approximately 6 years. He was president of Local 271 at the time he went
on the permanent staff of the International Union in 1953. As International repre-
sentative, he services 19 or 20 locals in southern-central Ohio in many ways, and
has serviced Local 271 for 13 years, in addition to the period when he was presi-
dent of that Local.
Charles McManaway has been employed by the Company for 19 years and has
been president of Local 271 for 4 years. Before becoming president, he had held
other offices in the Union. He is employed in the Company's rewind department at
the Mount Vernon plant.
Russell Shoman has worked for the Company for 30 years and is now vice presi-
dent of Local 271 and had also previously held other offices in the Local. Wade
Laughrey has worked for the Company 15 years and is a laminating extruding
operator. He has been a grievance committeeman for approximately 10 years. The
shop stewards for the laminating department were Glenn Roger Buck, Gerald
Lewis, and Charles Antill.
Laughrey testified that around April 1, he had a conversation with Charles
McManaway, president of Local 271, to ascertain if McManaway had received
any answer from Hendershott as to his grievance. Laughrey told McManaway that
he was dissatisfied with the way his grievance was going and further stated to
McManaway, "Well, we're talking about going to the N.L.R.B. to seek help, and,
if necessary, to see if we can bring in another union." Laughrey credibly stated
that McManaway then told him, "You're going to get into trouble, and you're going
to get fired by the Union." Laughrey stated that while they had heard about the
letter of March 18, as aforestated, denying the grievance-he wanted to hear from
Hendershott. Union Local 271 stewards, Buck and Antill, also testified as to the
conversation in early April with McManaway, and in essence substantiated Laugh-
rey's testimony. McManaway remembered talking with Laughrey around April 1,
but testified that he was asked if he could get ahold of Hendershott. McManaway
denied he made any statement to the effect that someone would be fired, and could
not recall any discussion about Laughrey going to the Board or any mention
about decertification .3
A. The meeting of April 23
This meeting was held in the union hall in Mount Vernon where Hendershott met
with McManaway, Shoman, Laughrey, Buck, Lewis, and Antill. Laughrey testified
that he opened the April 23 meeting by asking Hendershott about an answer to
the grievance, and stated that his first objective was to take the grievance to arbitra-
tion under the fifth step of the grievance procedure. Laughrey credibly testified that
after discussion along this line Hendershott informed him the grievance would
"get beat" if taken to arbitration. Laughrey further related in his testimony that
after informing Hendershott that the employees were dissatisfied in the length of
time they had to wait for an answer-Hendershott then asked "What do I hear
about these-you boys going up to Cleveland?" (Reference being made to the
Board's Regional Office located in Cleveland.) Laughrey replied that the employees
were dissatisfied and "we was going up to see about it and see if it was possible
3 There is no contention by the General Counsel, nor is there any allegation in the com-
plaint, that the above statements attributed to McManaway were violative of the Act.
However, they do show background evidence prior to the April 23 meeting, and are there-
fore admissible.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to decertify the Union and bring in another Union ." Laughrey testified that Hender-
shott then stated, "We 'll fire you or anybody else that goes to Cleveland ," and that
Hendershott also informed him, "I 'll bring in the big boys from New York and
chop you up if you try to decertify this Union ." Laughrey testified that Gerald
Lewis then told Hendershott that if he fired Laughrey the employees in the lam-
inating department "are going to cross some tracks." Hendershott then inquired as
to what union Laughrey was going to bring in-and after being told it would prob-
ably be an independent union, Hendershott replied , "You would last 2 weeks. The
Company would fire you in an independent union." Laughrey then related that
Hendershott informed them that the grievance had taken so long it was getting
close to the negotiation period , as aforestated , and that if the employees in the
laminating department would wait until the parties started their negotiation he
would handle the grievance then on a "separate" basis. Laughrey stated that he
then discussed this idea with the three stewards and they agreed to this proposal.
The record shows that during the negotiations in August and September the lam-
inating department employees succeeded in getting an adjustment of their wages
above and beyond the general wage increase given. However, Laughrey stated that
Hendershott did not handle the grievance "separately" as he had promised at the
meeting on April 23.
General Counsel witnesses Buck, Lewis, and Antill also gave their versions as to
what Hendershott told them at the meeting on April 23, and in essence all three
corroborated the aforesaid credited testimony of Laughrey . Lewis was the only
witness who could not remember any threat of bodily harm being made.
Hendershott denied making any threat or statement about the employees going
to the Board's office in Cleveland , denied any discussion about the possibility of
an independent union coming in , and also denied any remarks about the "big boys
chopping them to pieces ." Hendershott testified that the entire meeting on April 23
was concerned with the wage grievance adjustment and how to proceed with it,
and he suggested they put the grievance on the agenda during the negotiations, as
aforestated , but that he did not promise to bargain separately about it as he had no
authority to do so. Hendershott further related that during the negotiations in
August and September as aforementioned , Laughrey then informed him that they
were dissatisfied and were going to the Board 's office in Cleveland , and that he told
them to "go ahead ." Laughrey 's testimony in this respect agrees with that of Hen-
dershott . McManaway and Shoman denied in their testimony any remarks by
Hendershott that employees would be fired if they went to the Board 's office in
Cleveland or that the "big boys" would be sent in from New York.
The Respondent Union mainly attacks the credibility of the witnesses for the
General Counsel on the basis of the alleged conflicting statements in their affidavits,
and on the grounds that 2 weeks before this hearing these witnesses had been
together in a car discussing the case. After carefully examining the affidavits of
Antill, Buck, and Laughrey ( Respondent 's Exhibits 1, 2, and 3 ), I am unable to
find sufficient contradictions to impeach their testimony given at the hearing, and
on the contrary, in several respects these affidavits actually support their testimony.
There are no substantial deviations in these affidavits to any greater extent than
normally and usually found when witnesses give their statements without benefit
of counsel and other safeguards , and a finding in this case that such affidavits suc-
cessfully impeached their testimony at the hearing before me would be improper
and without an adequate basis. It is also noted that some of the contradictions in
the affidavits relied upon by the Respondent Union, referral to dates, that the "big
boys" would "chop them up," and that the laminating employees would "go across
the tracks ." While counsel for the Respondent Union skillfully interjects contradic-
tions into these omissions or inclusions , such statements or omissions , in themselves,
do not directly contradict the testimony given at the hearing that Hendershott
threatened discharge and violence if the employees went to the Board for assist-
ance. Likewise , I can find no overwhelming credibility attack on these witnesses
because they assembled in a car a few weeks or so before the hearing to discuss the
case. To do so I would have to accept the argument or inference by the Respondent
Union that Laughrey then and there successfully coached the witnesses for the
General Counsel so they could testify in accordance with Laughrey 's memory as to
what Hendershott told them on April 23 . Upon my observation of these witnesses
and their demeanor while testifying before me I reject this argument by the
Respondent Union . Cases of this nature which ultimately turn on credibility of the
UNITED PAPERMAKERS AND PAPERWORKERS 1115
witnesses impose a particularly heavy responsibility on the trier of fact, be he Trial
Examiner , judge, or jury , who observes the demeanor of the witnesses on the stand.
In the total aspects of this case the witnesses called by the General Counsel testified
in an extremely forthright manner. The testimony of the Respondent's witnesses
was for the most part merely a general denial of the several statements attributed to
them.
B. Final conclusions
At the outset of this hearing the Respondent Union denied the allegations in the
complaint that Kenneth Hendershott was an agent of the Respondent . I indicated
at the hearing that the evidence produced by the General Counsel quite clearly
showed that Hendershott was an agent , and the Respondent does not argue this
point in its brief. The Act holds a labor organization responsible for the unlawful
conduct of its agent just as it holds an employer answerable for what the latter's
agent does . It is a familiar rule of agency that a principal is responsible for the
acts of its agent done in furtherance of the principal's interest and within the
scope of the agent's general authority even though the principal may not have
authorized the specific act in question . It is enough if the principal has empowered
the agent to represent it in the general area in which the agent acted. The admitted
or acknowledged duties, responsibilities , and functions performed by Hendershott,
as indicated herein, clearly shows that he represented or was empowered to repre-
sent the Respondent and was their agent within the meaning of the Act. On the
basis of this record it is needless to further elaborate or discuss this initial con-
tention in the case.4
Section 8 (b)(1)(A) of the Act makes it an unfair labor practice for a labor
organization or its agents "to restrain or coerce employees" in the exercise of their
right to engage in or refrain from concerted activity directed toward self -organization
and collective bargaining. While this section of the Act further provides that it
"shall not impair the right of a labor organization to prescribe its own rules with,
respect to the acquisition or retention of membership therein ," the Board has con-
sistently held that this proviso does not permit a labor organization to enforce its
internal rules so as to affect the hire or tenure of employees , and thereby to.
coerce them in the exercise of their statutory rights. In application and interpreta-
tion of this section of the Act the Board has also consistently held that utterances
by union agents to employees are violative of Section 8(b)(1)(A ) where they con-
tain express or implied threats of loss of employment or employment opportunities
because of the employees ' exercise of their statutory rights. The Board has repeatedly
held that Section 8(b)(1)(A ) was intended to eliminate , among other things,
physical violence , intimidation , and threats of economic action by unions against
employees. Furthermore , the Board has held that a union 's attempt to cause a
discriminatory discharge , even though unsuccessful and unaccompanied by threats
of physical violence, may constitute a violation of Section 8(b)(1)(A). Interna-
tional Union, UAW, CIO, Local 291, 92 NLRB 968. As a further preliminary it is
also noted that the processing of grievances is not a matter of internal union admin-
istration , since a union which has been granted exclusive bargaining rights assumes
the responsibility to accept and process all grievances impartially and without dis-
crimination , irrespective of union memberships or the existence of a union -security
agreement. Peerless Tool & Engineering Co., 111 NLRB 853; District 50, Local
No. 13366, Mine Workers (Stubnitz Greene Corporation), 117 NLRB 648.
The credited testimony in the instant case shows that at the meeting on April 23,
Hendershott threatened several employees with discharge if they took the grievance
or labor matter in question to the Board 's office in Cleveland and also threatened
physical violence from the "big boys" in New York if the employees attempted to
decertify the Union . From such facts and circumstances we then have, at least
from the outset, a violation of Section 8(b) (1) (A) which fits within the Board's
specific guidelines and decisions . However, before a final disposition can be made
here, there are a few trouble areas in this case which I think must first be pointed
out and discussed.
4 Hendershott also handles numerous grievances and negotiations for the Respondent
while he services the different locals and , in fact , signed the wage contract in September
renegotiated between the Company and the Respondent Union. Hendershott uas also made
trustee by the Respondent Union when Local 271 was put into trusteeship in December,
as aforestated.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the overall aspects in this record Hendershott and Laughrey did not always
enjoy the most amiable relationships toward one another. Laughrey admitted that
he and Hendershott had several "heated" arguments dating over a period of 5 or 6
years, but Laughrey denied circulating a petition which sought to remove Hender-
shott from his union office and also denied any recent participation in the "hanging
of Hendershott in effigy" in front of the union hall. Hendershott agreed that he
and Laughrey have had disagreements in the past. I think it can be safely said that
there was no love lost between the two of them.
From the Respondent's point of view it is also noted that the grievance here in
question had been processed up to the fifth step under the grievance procedure in
the existing contract, and that the Company on March 18 denied the grievance
during the fourth step under the grievance procedure, but still Laughrey continued
his persistent efforts to get a decision from Hendershott, himself, and thus the meet-
ing of April 23 From the above circumstances it can be readily ascertained that
the general setting for this eyeball to eyeball confrontation between Hendershott
and Laughrey, the two individuals mainly involved, was not exactly conducive to
the mere exchange of pleasantries .5
In furtherance of the Respondent's viewpoint it is also noted that after Hender-
shott made the threats of discharge and physical violence at the April 23 meeting-
the parties then reached an agreement to present the grievance to the Company in
August and September during the reopening of wage negotiations. This was done
and the employees in the laminating department received favorable wage adjust-
ments in addition to the general wage increases granted. Under such extenuating
circumstances and overall factors it might be successfully argued by the Respondent
Union that Hendershott's unlawful conduct at the meeting was provoked by Laugh-
rey's tenacious endeavor to get an answer from the Respondent, and that Hender-
shott's threats were derived from a personal affront to him, rather than from the
labor or grievance controversy itself. It might also be successfully argued by the
Respondent Union that in consideration of the agreement that was reached on
April 23, and in view of the fact that the employees in the laminating department
did receive a satisfactory adjustment in the final outcome without any employee
being discharged or physically abused-that Hendershott's threats, in the final analy-
sis, were actually repudiated and by the same person who initially made them. The
Union might further argue that the persistent pursuit and the full-throttle attitude
of Laughrey in seeking a direct answer from the Respondent-accounted for the
threats made by Hendershott at the April 23 meeting, and that this incident was an
isolated one which will not warrant or support a finding. These are all trouble areas
in this case, and I have had to carefully consider and struggle through them before
finding, as I do, that the Respondent Union violated Section 8(b)(1) (A) of the
Act,
This record shows that the threats made by Hendershott at the meeting on
April 23, were directed toward the three union stewards present (Buck, Lewis, and
Antill), and to one union committeeman present (Laughrey). Obviously they were
calculated to come to the attention of the employees generally, and, as the Gen-
eral Counsel suggests, to have a lasting effect on the employees so as to discourage
them in seeking the assistance of the Board and especially to discourage any
employee movement to decertify the Union. It is also pointed out that there were
no repudiations of the threats at the meeting on April 23, irrespective of the subse-
quent adjustment during the negotiations. Furthermore, this record reveals a definite
pattern of coercive conduct upon the part of the Respondent Union which takes the
incident or threats on April 23 out of the isolated category. The background testi-
mony shows that on or about April 1, McManaway was informed by Laughrey
that employees were thinking about seeking the Board's help, and Laughrey was
then told by McManaway that he would "get into trouble" and would "get fired by
the Union." While this may be deemed a prediction, as it is not alleged or con-
tended as violative, it, nevertheless, as background evidence, shows the start of the
Respondent's pattern. Hendershott then came along on April 23, and supplied the
second stage in the pattern of unlawful coercive conduct, as aforestated, and the
third stage in the pattern was amply supplied when Respondent's Local 271 was
put into trusteeship in December with all the officers suspended, and then subse-
quently all the officers of the Local were reinstated by Hendershott as trustees
It appears from this record that at no time had Laughrey or any other union members
secured any authorization from the Local to take this grievance to arbitration (the
fifth step).
UNITED PAPERMAKERS AND PAPERWORKERS 1117
except those who had gone to the Board's office in Cleveland .6 It appears clear to
me that this continual pattern of conduct amply demonstrates the extreme measures
to which the Respondent Union was and is prepared to go in punishing the employ-
ees for engaging in protected activity. Certainly, the reinstatement by Hendershott
of all officers except those who went to the Board's office ]ends considerable weight
to the General Counsel's case and also supports my credibility findings that Hen-
dershott threatened employees on April 23?
The General Counsel suggests that considering the many years in which the
Respondent represented the employees and the union-security clause in the con-
tracts between the Company and the Respondent Union, the employees certainly
had a reasonable basis to be apprehensive about their future employment should
they attempt to support any other union or seek information and assistance from
the Board's office in Cleveland. I agree, and these factors must also bear in the proper
evaluation of the total aspects and evidence in this case. Also, the fact that the
Respondent had some difficulty in getting ratification of its 1965 renegotiated wage
contract, and the evidence that members or employees were not overly enthusi-
astic about it, as aforestated, further shows considerable discontentment with the
Respondent and the extreme likelihood that the Respondent strongly opposed by
coercive threats the previous expressions or suggestions by employees of outside
interference and assistance.
In the final analysis, and in consideration of the chronology of events in this rec-
ord, the threats made by Hendershott on April 23 clearly implied that the Respond-
ent Union would attempt to secure the employees' discharge and use violence if
they sought outside advice or assistance; and that Hendershott's threats were actu-
ally derived from the labor controversy itself. Moreover, this record shows that the
employees present understood such ends to be the message conveyed by Hender-
shott during the course of the meeting on April 23. Under these circumstances, and
upon all the reasons given above and my observations of the witnesses and their
demeanor while testifying, I have found that Hendershott's statements, reasonably
interpreted when coupled with the entire pattern or conduct this case, constituted
illegal threats in violation of Section 8(b) (1) (A) of the Act. Arlan's Department
Store of Michigan, Inc., 133 NLRB 802; A. 0. Smith Corporation, Granite City
Plant, 132 NLRB 339; Pioneer Lumber Corporation, 140 NLRB 602; Maxim Day-
ton, Inc., 142 NLRB 396.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above have a close, intimate, and sub-
stantial 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
thereof.
V. THE REMEDY
Having found that the Respondent was engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent Union and its Locals are labor organizations within the
meaning of Section 2(5) of the Act.
2. Continental Can Company, Inc., is engaged in commerce within the meaning
of the Act.
9 Respondent's own witness McManaway admitted these facts as to the trusteeship This
record shows that Laughrey first went to Cleveland on September 14 along with Lowell
Trues and Gerald Lewis One of the items discussed on this trip was how the employees
could decertify the Union Local. Laughrey made a second trip to Cleveland on September 20
when he filed the charge in this case. Local 271 paid the expenses of both trips.
7 There is no argument or contention whatsoever that the placing of the Local in trustee-
ship was violative of the Act Nor are we concerned here with the legal ramifications, rights,
or issues involved. The only purpose of this testimony and admissions are to show the
steps which the Respondent took to keep its members from displaying any opposition, and
to show that Hendershott's threats on April 23 were real, and that they had a continual
and repeated impact.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent Union engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDATION ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent Union, their
officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from restraining or coercing employees in the exercise of
their rights under Section 7 of the Act by making threats of bodily harm and dis-
charges against them during the course of grievance proceedings and any other
time or because employees' or members' seek outside advice or activity on behalf
of any other bargaining agent of their choice, and in any other manner restraining
or coercing them in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Post in conspicuous places at the offices and meeting halls of the Respond-
ent in Mount Vernon, Ohio, copies of the attached notice marked "Appendix." 8
Copies of said notice, to be furnished by the Regional Director for Region 8, after
being duly signed by official representatives of the Respondent labor organizations,
shall be posted immediately upon receipt thereof, and be maintained for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Mail signed copies of the said notice to the Regional Director for Region 8
for posting, the employer willing, at all locations where notices to employees of
Continental Can Company, Inc., at its Mount Vernon plant, are customarily posted.
(c) Notify the Regional Director for Region 8, in writing, within 20 days from
the date of this Decision, what steps Respondent has taken to comply herewith.e
s In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order Is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" for the
words "a Decision and Order."
9In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read • "Notify the Regional Director for Region 8, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED PAPERMAKERS AND PAPERWORKERS, AFL-
CIO AND TO ALL EMPLOYEES OF CONTINENTAL CAN COMPANY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT threaten with discharges or physical violence employees of the
above-named or any other employer.
WE WILL NOT threaten discharge or bodily harm against employees during
the course of grievance proceedings and any other time, or because employees'
and members' seek outside advice and information , or engage in union activ-
ity on behalf of any other bargaining agent of their choice.
WE WILL NOT in any other manner restrain or coerce employees of the
above-named employer in the exercise of their rights guaranteed in Section 7
of the Act, as amended, including the right to refrain from any or all con-
certed activities as guaranteed by the said Act.
UNITED PAPERMAKERS AND PAPERWORKERS , AFL-CIO,
Labor Organization.
Dated- ------------------ By-------------------------------------------
(Representative ) . ( Title)
PRECISION PRODUCTS & CONTROLS, INC . 1119
This notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with
its provisions, they may communicate directly with the Board's Regional Office,
720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone
621-4465.
Precision Products & Controls, Inc. and International Union,
United Automobile , Aerospace and Agricultural Implement
Workers of America , AFL-CIO. Case 16-CA-92310-29. Septem-
ber 14, 1966
DECISION AND ORDER
On May 24, 1966, Trial Examiner Sidney J. Barban issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the General Counsel filed exceptions
to the Decision and a supporting brief. The Respondent filed a brief
in answer to the General Counsel's exceptions and a brief in support
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings-of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions :
1. The Trial Examiner found that Foreman Hubbard's statement
"I understand there was a union meeting last night and there were
thirty-five people present," made to employee Hale on December 16,
"was altogether natural" in view of the evidence that such matters
``were freely discussed in the plant," and therefore did not violate the
Act by giving the impression of surveillance. We do not agree.
This statement was made the day after the union meeting attended
by precisely 35 employees at which Hale had signed an authorization
card. In view of the timing of the remark and the accuracy of the
information, the implications of the statement are not negated by the
fact that employees freely discussed the Union while in the plant.
160 NLRB No. 83.