Universal Packaging Corp.

National Labor Relations Board - Board Decisions

Oct 29, 1964

149 N.L.R.B. 262 (N.L.R.B. 1964)

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of receipt of this Decision , what steps it has taken to comply herewith 16
'@ In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL, upon request, bargain with International Union of Operating
Engineers , Local 370, AFL-CIO, as the exclusive bargaining representative
of all our employees in the units described below with respect to rates of pay,
wages, hours of work, or other terms and conditions of employment, and, if
an understanding is reached , embody such understanding in a signed agree-
ment. The units are:
(1) All mechanics , field mechanics , mechanics ' helpers, welders, and
shop clerical employees at our Boise , Idaho, operation , excluding office
clerical and professional employees, guards , and supervisors.
(2) All shop mechanics and helpers , partsmen , and shipping and shop
clerks at our heavy-duty equipment service and repair shop at Pocatello,
Idaho, excluding office clerical and professional employees , salesmen,
guards, and supervisors.
WE WILL offer to our Boise strikers , upon unconditional application, imme-
diate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to seniority or other rights and privileges.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
J. A. TERTELING & SONS, INC. D/B/A
WESTERN EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Regional office of the Board, 327 Logan
Building, Fifth and Union Streets, Seattle, Washington , Telephone No. Mutual
2-3300, Extension 553, if they have any questions concerning this notice of com-
pliance with its provisions.
Universal Packaging Corporation and United Papermakers and
Paperworkers , AFL-CIO. Cases Nos. 1-CA1-4441 and 1-CA-
4534. October 29, 1964
DECISION AND ORDER
On July 14, 1964 , Trial Examiner C. W. Whittemore issued his
Decision in the above -entitled proceeding, finding that the Respond-
149 NLRB No. 31.
UNIVERSAL PACKAGING CORPORATION 263
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of those allegations of the complaint. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed a brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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 modifications noted be-
low.
We do not adopt the finding of the Trial Examiner that the Re-
spondent violated Section 8(a) (1) by reason of a promise by its
president, in a speech to the employees on March 18, 1964, to grant
additional holidays,2 while urging the employees to vote against the
Union in a then-scheduled Board election. It is noted that the com-
plaint includes no allegation that the March 18 speech contained an
unlawful promise of benefits to employees, and that the General
Counsel, in the course of the hearing, specifically disclaimed any such
charge.
Nor do we agree with the Trial Examiner that Hodgkins' presence
at the New Hampshire Highway Motel on December 27, 1963, when
a union meeting was being held there, constituted unlawful surveil-
lance within the meaning of Section 8(a) (1). The record reveals
that Hodgkins went to the motel for dinner with friends, that he
waited in the lobby for a few minutes for them to rejoin him after
dinner, and that he saw two of the employees at that time. There is
no evidence that his purpose in going to the motel was to observe the
meeting of those in attendance, or that his presence in the lobby when
he saw the employees was anything other than coincidental. In ad-
dition, Hodgkins testified without contradiction that he did not know
when he went to the motel that there was to be a meeting at that
time or at that place. We find, therefore, contrary to the Trial Ex-
'Respondent 's request for oral argument before the Board is denied , as the record, excep-
tions, and briefs adequately present the issues and positions of the parties.
2 We agree with the Trial Examiner that the actual granting, a week after the speech,
of "Fast Day " as a new holiday constituted a violation of Section 8(a) (1).
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer, that the record does not support by a preponderance of the
evidence a finding that Hodgkins either intended to or did engage in
unlawful surveillance of the meeting or its participants.
ORDER
Pursuant to Section 10(c) of 'the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order , the Order recom-
mended by the Trial Examiner and orders that the Respondent, Uni-
versal Packaging Corporation , its officers , agents, successors , and as-
signs, shall take the action set forth in the Trial Examiner 's Recom-
mended Order , with the following modifications :
1. Delete paragraph 1(c) and substitute the following:
"(c) Granting benefits to discourage membership in the above-
named labor organization."
2. Add a new paragraph 2(e) to read as follows :
"(e) Notify Marsh, Drew, and Brock if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948 , as amended,
after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon original , first, and second named charges in Case No . 1-CA-4441, filed,
respectively , on January 8 and 24 and February 12, 1964, by United Papermakers
and Paperworkers , AFL-CIO, herein called the Union , the General Counsel of the
National Labor Relations Board on February 20, 1964, issued his complaint and
notice of hearing. Universal Packaging Corporation , herein called the Respond-
ent, thereafter filed an answer. The complaint in this case alleges and the answer
denies that the Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1), (3 ), and (4 ) of the National Labor
Relations Act, as amended . Pursuant to notice , a hearing was held in Concord,
New Hampshire, on March 24 and 25, 1964, before Trial Examiner C. ' W.
Whittemore.
Upon a charge filed on March 26, 1964, by the same labor organization in Case
No. 1-CA-4535, the General Counsel on April 23, 1964, submitted to the Trial
Examiner, with appropriate service upon the other ,parties, a motion to reopen the
hearing, to consolidate the two cases , and to amend the complaint to add certain
allegations of other violations of Section 8(a)(1) and (3) of the Act. On April
27, 1964, a letter from counsel for the Respondent was received by the Trial
Examiner opposing said motion. (This letter is hereby made a part of the rec-
ord.) On May 1, 1964, the Trial Examiner issued telegraphic notice to all parties
granting General Counsel 's motion and setting a date for the reopening of the
hearing Thereafter the Respondent filed an answer denying commission of the
unfair labor practices alleged in the amended complaint . The reopened hearing
was held in Concord , New Hampshire , on May 26, 1964, before the same Trial
Examiner.
All parties were represented by counsel at the several sessions and were
afforded full opportunity to present evidence pertinent to the issues , to argue orally,
and to file briefs . Briefs and/or supplemental briefs have been received from all
parties and fully considered.
UNIVERSAL PACKAGING CORPORATION 265
On June 26, 1964, the Trial Examiner received a letter from counsel for the
Respondent, which, upon its face, indicates that copies were sent to the other
parties. In effect the letter states that he and counsel for the General Counsel
"have entered into a stipulation with respect to an error which appears in the
transcript." If in written form, said stipulation did not accompany the letter and
has not been received by the Trial Examiner. The same letter, however, quotes the
following language , which counsel for the Respondent states was in a letter he
had received from counsel for General Counsel:
I am in receipt of your letter dated June 16 with respect to the proposed
correction of the transcript concerning the stipulation entered into, which
language is contained on page 428, line 21 of the transcript.
As indicated in our telephone conversation of June 15, I am in agreement
that the Reporter neglected to include the fact if Hodgkins testified that he
would deny that aspect of Agresti's testimony.
The "proposed correction" is noted, and the letter may be made a part of the
record.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing , is made by the following findings , conclusions,
and recommendations.
Upon the record thus made, and from his observation of the witness, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Universal Packaging Corporation is a Delaware corporation with principal
office and place of business in Bow, New Hampshire, where it is engaged in the
manufacture, sale, and distribution of folding cartons
The Respondent annually ships goods and materials valued at more than $50,000
from its Bow plant to points outside the State of New Hampshire, and annually
receives goods and materials valued at more than $ 50,000 directly from points
outside the State of New Hampshire.
The complaint alleges, the original answer admits , and it is here found that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
United Papermakers and Paperworkers , AFL-CIO, is a labor organization admit-'
ting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
All conduct alleged by the complaint, as amended, to have been violative of the
Act occurred within a period of about 3 months after the Respondent's employees
began organizational efforts in mid-December 1963. Involved as alleged unlaw-
ful discrimination are discharges of employees Marsh, Drew, and Brock, and 1-week
suspensions of employees Hall and Palmer. The complaint also alleges that cer-
tain management representatives engaged in other acts of interference , restraint,
and coercion.
That management became aware promptly of the organizing move in December
is clearly admitted by the testimony of Superintendent Hodgkins, who said that
before December 30:
On any given day I felt like touring the plant after these leaflets had been
given out, I could find my shaie anywhere in the plant.
And that management vigorously opposed such organization is established by
many management acts, including: (1) the calling together by Foreman Hicks,
the latter part of December, of all employees in his department, when he told them
he had heard of union activities and that they had no need of a union but could
form a committee of their own; and (2) a speech in March by the company
president urging employees to vote against the Union.
In this setting of company knowledge: and opposition to self-organization of its
employees, the following events occurred
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge of Gene L. Marsh
1. Relevant facts
Marsh had worked for the Respondent only about 2 months when, on January 2,
1964, he was suddenly and without previous notice discharged by Hodgkins, the
day superintendent.
He was an active leader in the organizing campaign, distributing among his
fellow employees some 20 union cards in the shop and at the company parking
lot. He attended a union meeting held in a local motel where, under circum-
stances more fully described below, Hodgkins was also present. As a witness,
Hodgkins admitted that he knew the union meeting was to be held there that
night; and named at least two employees he saw there (both of whom were later
suspended, as will be noted below). It is inferred that Hodgkins was well aware
of Marsh's union adherence before firing him. The finding is buttressed by the
superintendent's remarks to the employee at the discharge interview, described
below.
Late in the afternoon of January 2 Hodgkins called Marsh to his office.
He asked the employee if he realized how the "shop" was expanding and
inquired if he had any work problems. Marsh said he had none . The superintend-
ent then declared that he "must have some problems," because he "knew about
the union meetings . Hodgkins then read from a list before him the occasions
when the employee had been late or absent. Marsh explained, as he had previous-
ly to other supervisors , the reason for and the nature of his past lateness and ab-
sences. Hodgkins, however, handed him his final check and closed the interview by
telling Marsh that he wanted to keep any problems they had "in the shop."
As a witness, Hodgkins at first claimed that he had dismissed Marsh "for exces-
sive absenteeism and tardiness." Later he added another reason, the claim that
Marsh would not "guarantee that he would be there in the spring." Not only is
the latter contention illogical on its face-why should he want such a guarantee if
he was perturbed by occasional absences-but the employee's denial that the guar-
antee was asked is credited. The superintendent was an extremely unimpressive
witness. As the record shows, he sat mute in response to several questions, on cross-
examination, as to when he made the decision to fire Marsh. It was readily
apparent that he was entertaining inner discomfiture caused by timecards having
been just called to his attention showing that Marsh had neither been absent nor
tardy for nearly 2 weeks before his dismissal.
As to absences before December 23, 1963, the employee's explanation was ap-
parently reasonable to Charles Cooke, in charge of the plant when Hodgkins was
away, and to Foreman Ferris, the employee's supervisor. It is also understandable
to the Trial Examiner, who has lived through several winters in northern New
Hampshire.
Until shortly before Christmas 1963, Marsh had lived in Laconia, some 36
miles from the plant. While living there he had, on a number of occasions,
had difficulty getting his car started, causing him to be late or absent. It is
undisputed that whenever such trouble developed, he always called and informed
the office, until finally told by Cooke that he need not bother to call in again. It is
also undisputed that after the first or second absence he explained to Ferris the
trouble he was having. Ferris merely said, "All right," but never warned him
regarding such absences and tardiness. After Christmas Marsh moved to Con-
cord, where he was living when discharged.
2. Conclusions
The Trial Examiner finds no merit in Hodgkins' claimed reasons for discharg-
ing Marsh. On the contrary, it is concluded and found that the employee was
unlawfully dismissed to discourage union membership and activity. Such discrim-
ination interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by the Act.
C. The discharge of Donald Drew
1. Relevant facts
On January 3, 1964, the day after the unlawful discharge of Marsh, the Union
sent the Respondent a letter claiming majority representative status and also filed
with the Regional Office a representation petition.
UNIVERSAL PACKAGING CORPORATION 267
Three days later, on January 6, employee Donald Drew was summarily dis-
charged by Foreman Hicks , upon orders of Superintendent Hodgkins
Drew was active in the organizational campaign , having distributed cards at the
plant , and attending all union meetings , especially that on December 27 at the
motel. On the latter occasion , which the superintendent said he knew was a union
meeting , Drew stood within a few feet of Hodgkins.
On the next working day after the motel meeting Hicks, his foreman,' came to
him and advised him that if he had any problems he should come to him and "not
2to some outsider."
According to Hodgkins ' testimony he ordered Hicks to dismiss Drew on the
basis of a report received from Night Superintendent Agresti . Hodgkins ad-
mitted that he made no effort to investigate the circumstances of the reported
incident.
The testimony of Agresti , the only management representative to testify regard-
ing the occurrence upon which Hodgkins said he based his order, may be
quickly summarized . According to him, the day before the discharge he was
interviewing some "help" he needed for the shift he was about to take charge
of. One individual, whose name he could not recall , had not put a telephone
number on his application form and he asked "how we were going to get in touch
with him ." The applicant replied that he knew Donald Drew, then in the plant, so
they went out to talk to him.
When the applicant told Drew he was looking for a job, the latter remarked,
according to Agresti , that he would not come to work for that company, and
emphasized his opinion with use of a barnyard term. As a result of Drew's un-
complimentary remark , Agresti said , the applicant left, refusing to accept the job
and taking with him another applicant he had not yet interviewed.
In rebuttal , General Counsel called the applicant involved. His name also is
Drew. although not a near relative of Donald. The credible testimony of this
individual , supported by that of Donald and another employee was nearby at the
time. is to the effect that Donald, in greeting his friend , did remark with a smile,
"You are not coming to work here, are your " The applicant flatly and credibly
denied that he was in any way discouraged by Donald's facetious question , and said
that he would have taken the job if it had been available.
The next afternoon Hicks informed Donald Drew that he had instructions from
the office to "pull" his card . Drew asked why. Hicks hesitated , and then said the
shop did not need a union, but he knew there were "people in the shop trying to
organize" one . Hicks gave him no other reason for his discharge 3
2. Conclusions
Agresti's testimony concerning Drew must be disbelieved in its major part. If,
as he claimed , a job was then available and he needed the applicant for the shift
just going on, there was no need to ask the applicant for a telephone number so
he could be reached All he had to do was tell the man to take off his coat and
go to work . The Trial Examiner specifically finds that applicant Drew did not
refuse to take a job because of any remark Donald Drew made . It is also found,
especially in view of the facts shown in the record , that the two Drews are young
and admitted "buddies," that the remark was not designed to discourage employ-
ment. It is undisputed that even after being discharged Donald Drew has sug-
gested to others that they seek employment at the plant , and that at the time of
the hearing at least one such person was still working there.
1 The Respondent contends that Hicks is not a supervisor within the meaning of the
Act, despite the published fact that he is listed as a foreman in the handbook distributed
to employees Hicks' own testimony and the admitted fact that he fired Drew , as well as
the company booklet , clearly refute the Respondent's contention He admitted that he
frequently called all employees in his department to instruct them regarding "cleanliness
of the plant , inspection and quality of the work " The Trial Examiner finds that Hicks is,
or was at the times material , a supervisor within the meaning of the Act.
2 The quotation is from Drew 's credible testimony
3 The findings as to the discharge interview are based upon the employee ' s credible testi-
mony Hicks ' version is not believed , except his final admission to the effect that he urged
Drew to "try to find himself a job and move around until lie finds a place he was happy
to work in " As the record reveals, Hicks displayed marked volubleness and an exaggerated
estimate of his own importance , as a witness His demeanor failed to invite confidence in
his credibility
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner has no doubt that Agresti did report at least the substance
of the incident to Hodgkins, and that the latter seized upon it, without further
investigation, as a pretext for discharging a known union leader, at a time just
after management became aware of the Union's claim of majority.
Support for this conclusion is found in the candid testimony of Agresti at the
reopened hearing, when he said that he, Hodgkins, and their superior, Boodro, had
frequently discussed means of ridding the plant of union leaders. According to
his later testimony he had cautioned them, however, that they should not discharge
such employees until some substantial reason, other than union activities, presented
itself.
Agresti, it should be noted here, was called as a witness for the Respondent
at the first hearing on March 24. A few days before then he had resigned his
position. At the reopened hearing on May 26, Agresti appeared as a witness for
General Counsel, chiefly to testify concerning the discharge of another employee,
as described below.
In summary, the Trial Examiner is convinced and finds that Hodgkins used a
minor incident, as reported to but not investigated by him, as a pretext for dis-
charging Drew, while the real reason was to discourage union membership and
activity, and that he thereby interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by the Act.
D. The suspensions
On January 22 employees Robert Palmer, Sheldon Hall, and Donald Drew tes-
tified as witnesses for the Union at a Board representation hearing in Boston.
Drew, as noted above, had previously been unlawfully discharged.
The next day, January 23, Superintendent Hodgkins suspended for 1 week,
without pay, both Palmer and Hall. According to him they were thus disciplined
upon orders of Boodro, the Respondent's resident manager, because the employees
had not properly notified management of their absence
The preponderance of credible testimony, in the opinion of the Trial Examiner,
establishes that both employees, contrary to Hodgkins' contention, had notified
management, Palmer directly to Hodgkins and Hall through a call made by his
wife. It appears that neither of them told management in advance that they were
to be witnesses at the Board hearing. Hodgkins, however, admitted that before
suspending them he knew that they had testified there.
Both Palmer and Hall were well known by management representatives to be
active in the union movement before their suspension. The superintendent ad-
mitted that he had seen them at the December 27 union meeting.
Shortly after Foreman Hicks' speech to employees on December 30, described
above, the foreman came to Palmer and told him that no union was needed at this
shop, that he knew of plants which had been closed because of unions, and that
"this company could do the same thing." 4
On the same day Hodgkins approached Hall and, according to the latter's
credible testimony, told him all in the printing department should work together as
a team, that he did not want anyone to "go astray," and that he was putting him
in for a "dime raise."
The Trial Examiner concludes and finds that the suspensions were motivated by
the Respondent's resolve to discourage union membership and activity, and because
they had testified for the Union at a Board proceeding. It is undisputed that no
such discipline had ever before been visited upon them, although both had been
absent in the past. That in the case of Hall the unlawful discrimination was
effective, as intended, is reasonably inferred from the fact that in March, shortly
before the scheduled election and in a speech to all employees, President Crandle-
mire told them that Hall had come to him and said he was "changing his mind"
and was going "from the union to the company." 5 At the same time the presi-
dent singled out Palmer and told him he was also going to change his mind
The discriminatory suspension, as well as Hicks' implied threat of the plant
closing and Hodgkins' promise of a dime raise if Hall did not go "astray"
constituted interference, restraint, and coercion of employees' rights guaranteed by
the Act.
& For reasons set forth above, the Trial Examiner cannot credit Hicks' dental of this
implied threat.
5 Palmer's testimony on this point was elicited by counsel for the Respondent.
0
UNIVERSAL PACKAGING CORPORATION 269
E. The discharge of Robert Brock
1. Relevant facts
Brock had worked for the Respondent about 11 months when suddenly dis-
charged on March 20, 4 days before the original hearing opened, and on the day
scheduled for the election which was, however, canceled.
Brock was another known union leader among the employees. He had solicited
signatures to authorization cards on company premises. Both Hodgkins and
Boodro, as well as lesser supervisors such as Hicks and Abel, made it clear by
remarks to him that they knew and disapproved of his union activity.
The employee's credible testimony establishes, and it is found, that: (1) In
January, while the day foreman, Hicks, warned him not to "mess" with the Union;
(2) in February, after Abel took over the day foremanship from Hicks, this
foreman told him he had heard he was for the Union and cautioned him to keep
away and not even talk to the union "guys"; and (3) in mid-February Resident
Manager Boodro told him he had heard he was "100 percent" for the Union.
While a union representative was distributing leaflets outside the plant, Boodro
called Brock into his office and remarked. "This union business is getting to be
quite a thing to you." He added that several had told him he was for the Union,
and that it could do him no good. The manager said he could have fired Palmer
and Hall for testifying "at Boston," but he was not that "type of guy."
Brock was discharged on March 20 by Hodgkins, who told him he had made
many "bad" cartons for a certain product, and that he had received orders from
Boodro to let him go. Brock proceeded to see the resident manager. The latter
said he had 27 cases of bad cartons. Brock questioned the accusation, whereupon
Boodro jumped up, used a barnyard expression (New Hampshire has many barn-
yards), and said he did not want to talk any more about it. He has not been
reinstated.
2. Conclusions
Boodro was the chief management witness to testify concerning Brock's dis-
charge. The Trial Examiner can believe no part of his testimony concerning his
claimed reason for dismising this employee. His demeanor as a witness was
defiant, as the record shows. On its face his testimony is self-contradictory and
inconsistent. At first he claimed that Brock had "spoiled" 21/2 million cartons, but
later amended the claim to say he had to inspect that many to ascertain how many
were imperfect. He at first said he could obtain certain "numbers" to prove his
assertion that Brock, one of three operators on different shifts who worked on the
order, was responsible for most of the "spoiled" work, but later said he had no
records-and no records were brought forward to support any part of his con-
tention.
Former Night Superintendent Agresti was called as a witness by General Coun-
sel. The gist of his testimony is to the effect that while Brock was inexperienced
as an operator of the particular machine, he did as good work as could be expected-
and Agresti was the one management official in charge of Brock until shortly
before he resigned. Agresti admitted that there had been some waste, but that all
three shifts, on the same machine, had been equally responsible, and he said that
Boodro had never told him Brock was largely responsible for the "misruns "
Agresti further testified that he knew of Brock's union activities, a fact learned
from other employees and reported by him to both Hodgkins and Boodro. The
three management officials, he said, had decided to discharge Brock when the "first
chance" appeared and when a replacement was available, because of his active part
in the Union. Boodro, he said, left it up to 'him as to how to get rid of the
"Union" employees, but he (Agresti) advised that they must not be fired "just like
that," and should wait' until they could "find something that we could probably
actually get them for." Agresti said he had worked in other plants faced with
unfair labor practice charges.
The Trial Examiner believes Agresti's testimony at the reopened hearing, which
was given in a restrained and straightforward manner. In the first place, since
Agresti had been in charge of the employee for several months, had he actually
been fired for bad work it is reasonable to believe that the Respondent would have
called him as its witness, as it did in the case of Drew. It is again noted that
Agresti had resigned his position and left Concord before the original hearing
opened. The Respondent produced no evidence to indicate that its former superin-
tendent, upon whom it relied for the discharge of Drew, had any reason to falsify
against it in retaliation for anything. And a review of his testimony shows clearly
0
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he did not appear as a particular friend of Brock, resolved to corroborate
everything the latter had said as a witness . Agresti was not present when Brock
testified , and in one particular flatly contradicted Brock.
Although the fact that the Trial Examiner believes Agresti when he last ap-
peared, but does not accept as true all of his testimony at the original hearing,
may disturb the academic sensibilities of some review attorney who merely sees
words on pages , attention is respectfully called to the following remark of Chief
Judge L. Hand, in N .L.R.B. v. Universal Camera Corporation , 179 F . 2d 749, 754
(C A. 2):
It is no reason for refusing to accept everything that a witness says, because
you do not believe all of it; nothing is more common in all kinds of judicial
decisions than to believe some and not all.
In summary , the Trial Examiner finds no merit in Boodro's claim as to why he
ordered Brock's discharge . No other of the three operators who also were respon-
sible for bad work were disciplined in any way. It is concluded and found that
Boodro seized upon this "chance," as Agresti described it, as a pretext, but that the
real reason was to discourage union membership and activity . Such discrimina-
tion, and the above-noted warnings and interrogations directed at Brock, constituted
interference , restraint , and coercion.
F. Other interference, restraint , and coercion
Based upon the credible testimony of employees involved, the Trial Examiner
concludes and finds in addition to certain conduct and statements of supervisors
found heretofore , that the Respondent has engaged in 8(a )( 1) violations by:
(1) President Crandlemire 's promise to employees , in a speech delivered to
all employees just before the scheduled election , that he would give them more
holidays, while urging them to vote against the Union , and the actual granting
of a special holiday within a week of the promise.
(2) Hodgkins ' surveillance of the union meeting at the motel on December
27. Even if his claim be accorded some weight , to the effect that he had a dinner
date at the same motel the same night, his admission that he knew the meeting
was to be held and that he identified certain employees he saw there, when consid-
ered in the light of his other unlawful conduct , leads to the reasonable conclusion,
here made , that whether of primary or secondary importance as a purpose, his
intention was to engage in surveillance and to give his employees the impression
that he was so engaged.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the Respondent's 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It will be recommended that. the Respondent offer employees Marsh, Drew,
and Brock immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and privi-
leges, and make them and employees Palmer and Hall whole for any loss of pay they
may have suffered by reason of the discrimination against them, by payment to
each of them, in the cases of the first-named three employees, of a sum of money
equal to that which he would normally have earned as wages from the date of
the discrimination to the date of offer of full reinstatement, and in the cases of
6 In view of the many instances of unlawful discrimination and interference found herein,
the Trial Examiner considers it unnecessary to resolve certain issues as to whether a "lead-
ing lady," Jean Ladd, was a supervisor within the meaning of the Act, and consequently
whether warnings uttered by her were violative of the Act. Finally, the Trial Examiner
finds the evidence insufficient to conclude that management officials were actually re-
sponsible for an employee's interference with distribution of union leaflets on a single
occasion.
UNIVERSAL PACKAGING CORPORATION 271
the latter two individuals of a sum of money they normally would have earned
during the week of their suspension, less net earnings during said periods. The
backpay provided for shall be computed in accordance with the Board formula set
out in F. W. Woolworth Company, 90, NLRB 289, and with interest thereon as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
Since the unfair labor practices committed by the Respondent were of a nature
which violates the policies of the Act, it will be recommended that it cease and
desist from infringing in any manner upon the rights guaranteed by Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner make the following:
CONCLUSIONS OF LAW
1. United Papermakers and Paperworkers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By discriminating against employees as to tenure of employment to discour-
age membership in the activity on behalf of the above-named labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
3. By discriminating against employees as to tenure of employment because
they gave testimony under the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(4) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, it is recommended that Universal Packaging
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Discouraging membership in United Papermakers and Paperworkers, AFL-
CIO, or in any other labor organization of its employees, by discharging, refus-
ing to reinstate, or in any other manner discriminating against employees in
regard to hire or tenure of employment or any term or condition of employment.
(b) Discharging, suspending, or otherwise discriminating against employees
because they give testimony or file charges under the Act.
(c) Engaging in surveillance of union meetings and promising or granting
benefits to discourage membership in the above-named labor organization.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer employees Marsh, Drew, and Brock immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, and make them and employees Palmer
and Hall whole for any loss of earnings suffered by reason of the discrimination
against them, in the manner set forth above in the section 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, personnel records and reports, and all other records necessary to analyze
the amount of backpay due and the right of reinstatement under terms of this
Recommended Order.
(c) Post at its Bow, New Hampshire plant, copies of the attached notice marked
"Appendix." 7 Copies of said notice, to be furnished by the Regional Director for
Region 1, shall, after being duly signed by the Respondent's authorized represent-
ative, be posted by the Respondent immediately upon receipt thereof, and be
z In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by it for a period of 60 consecutive days thereafter , in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the said Regional Director , in writing , within 20 days from the date
of the receipt of this Trial Examiner's Decision, what steps it has taken to comply
therewith.8
8In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Board, and in order to conduct our labor relations in compliance with the National
Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage you from being members of United
Papermakers and Paperworkers , AFL-CIO, or any other union.
WE WILL NOT in any way discriminate against you because you file charges
or give testimony under the National Labor Relations Act.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
WE WILL offer reinstatement to Gene L. Marsh, Donald Drew, and Robert
W. Brock, and will give them and Robert Palmer and Sheldon Hall backpay
due them.
UNIVERSAL PACKAGING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify Marsh , Drew, and Brock, if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 24
School Street , Boston , Massachusetts , Telephone No. 523-8100 , if they have any
question concerning this notice or compliance with its provisions.
Schurr & Finlay, Inc. and International Brotherhood of Elec-
trical Workers , Local No. 769 , AFL-CIO
International Union of Operating Engineers , Local 428, AFL-
CIO and Richard Delmar and Wayne M. Boore
International Union of Operating Engineers , Local 428, AFL-
CIO and International Brotherhood of Electrical Workers,
Local No. 769, AFL-CIO. Cases Nos. 08-CA-1024, 28-CB-285,
and 28-CB-287. October 29, 1964
DECISION AND ORDER
On July 27, 1964, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that Respondents
149 NLRB No. 30.