Western Corrugated, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1959

122 N.L.R.B. 1021 (N.L.R.B. 1959)

WESTERN CORRUGATED, INC. 1021
Western Corrugated, Inc. and Harlow J. Sauer. Case No.
. 20-CA-1415. January 21, 1959
DECISION AND ORDER
On October 8, 1958, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that 'it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Western
Corrugated Inc., San Leandro, California, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership of any of its employees in Ware-
house. Union Local No. 12, International Brotherhood of Teamsters,
or any other labor organization, by discharging or refusing to em-
ploy any employee, or in any other manner discriminating against
any employee in regard to his hire, tenure, or any term or condi-
tion of employment, except as authorized by Section 8(a) (3) of
the National Labor Relations Act.
(b) Refusing to permit any employee, or in any other manner
denying him the right, to engage in union solicitation or discussion
on company property during nonworking hours.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to join or assist Warehouse
Union Local No. 12, International Brotherhood of Teamsters, to
bargain collectively through representatives of their own choosing,
122 NLRB No. 125.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Harlow J. Sauer immediate and full reinstatement
to his former, or a substantially equivalent, position, without prej-
.ndice to his seniority and other rights and privileges, and make him
whole in the manner, according to the method, and under the terms
set forth in the section of the Intermediate Report entitled "The
-Remedy."
(b) Preserve and make available to the National Labor Relations
Board or its agents, upon request, for examination and copying, all
.payroll records, social security payment records, timecards, personnel
,records and reports, and all other records necessary or appropriate
to an analysis of the amounts of back pay due and the rights of
.reemployment under the terms of this Order.'.
(c) Post in conspicuous places, including all places where notices
to employees are customarily posted, at its principal place of busi-
ness in San Leandro, California, copies of the notice attached
hereto marked "Appendix A." 1 Copies of said notice, to be fur-
nished by the Regional Director for the Twentieth Region of the
National Labor Relations Board, shall, after being signed by a duly
authorized representative of the Respondent, be posted by it im-
riiediately upon receipt thereof and maintained by it for 60 con-
secutive days thereafter in such conspicuous places. Reasonable steps
shall:be.taken by the said Respondent to insure that the said notices
are, Yiot altered, defaced, or covered by any other material.
(d) Notify the said Regional Director in writing, within ten
(10) days from the date of this Order, what steps the Respondent
'has'ta.ken'to comply, therewith.
IL In` ,tlie:, event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
. Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership of any of our employees
in Warehouse Union Local No. 12, International Brotherhood
WESTERN CORRUGATED, INC. 1023
of Teamsters, or in any other labor organization, by discharging
or refusing to employ any employee, or in any other manner
discriminating against any employee in regard to his hire, tenure.
of employment, or any other term or condition of employment,
except as authorized by Section 8(a) (3) of the National Labor
Relations Act.
WE WILL NOT. refuse to permit any employee, or in any other
manner deny him the right, to engage in union solicitation or
discussion on company property during nonworking hours.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist Warehouse Union Local No. 2,
Intern0 tional Brotherhood of Teamsters, 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, and to refrain from any or all
such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as' authorized in Sec-
tion S (a) (3) of the National Labor Relations Act.
WE WILL offer to Harlow J. Sauer immediate and full rein-
statement to his former, or a substantially equivalent, position
without prejudice to his seniority and other privileges, and make
him whole for any loss of pay he may have suffered as a result
of the discrimination against him.
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization, except
to the extent that this right may be affected by an agreement in
conformity with Section 8(a) (3) of the National Labor Relations
Act.
WESTERN CORRUGATED, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The basic issues presented for resolution in this proceeding are (1) whether the
Respondent, Western Corrugated , Inc. (also called the Company herein ), violated
Section 8 (a) (1) of the National Labor Relations Act, 'as atnended,1 by refusing on
May 9, 1958 , to grant an employee named Harlow J. Sauer permission to circulate
a petition , on behalf of a labor organization , among employees in the Respondent's
plant; and (2) whether the Respondent in violation of. Section 8(a) (3) of the
161 Stat . 136-163 (also referred to herein as the Act).
1024 DECISIONS OF NATIONAL LA-BORE RELATIONS BOARD
Act, discharged Sauer on that date because of his "membership' in or activities on
behalf of" . the said organization.2
Pursuant to notice duly served by the General Counsel of the National Labor
Relations Board (also called the Board herein) upon all other parties, a hearing
was held before me, as duly designated Trial Examiner, on August 11, 1958, at
San. Francisco, California. At the hearing, the General Counsel and the Re-
spondent appeared through, and were represented by, respective counsel. All
parties were afforded a full opportunity to be heard, examine and cross-examine
witnesses, adduce evidence, file briefs, and submit oral argument. The Respondent
has filed a brief with nie since the close of the hearing. It has been read and
considered. No other party has submitted a brief.
Upon the entire recoi d in the case, and from my observation of the witnesses,
I make the following findings of fact:
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD
The Company is engaged in the manufacture of corrugated paper and cartons
in San Leandro, California, where it maintains its principal office and plant.3
During the "fiscal year ending October 31, 1957," goods valued in excess of
$500,000 were purchased by the Company from "sources" located outside the
State of California, and were shipped from such points to the Company's plant in
San Leandro. By reason of such purchases and shipments, the Company is, and
has been at all material times, engaged in interstate commerce within the meaning
of the Act, and the Board has jurisdiction over the subject matter of this pro-
ceeding.
II. THE LABOR ORGANIZATION INVOLVED
As the complaint alleges, and the answer admits, Warehouse Union Local No.
12, International Brotherhood of Teamsters (also called the Teamsters Local
herein), is, and has been at all material times, a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
The Company employs approximately 80 persons. Its plant is operated under
the general supervision of a superintendent named Arnold Gander. The factory
processes are conducted on a departmentalized basis. Only three of the opera-
tional divisions need be identified here. These are the short order, press, and
corrugator departments. The short order department (which has special relevance
to the issues ) has a complement of about five employees. They perform their
work under the supervision of a foreman named Tom Goen, who also supervises
the work of the corrugator department. The function of the short order depart-
ment, as Lawrence Alameda, foreman of the press department and assistant plant
superintendent, testified, is to process "miscellaneous items," such as "partitions
for small boxes," that require no printing. Alameda, it may be noted, serves as
acting superintendent of the plant, and performs Gander's functions, on the oc-
casions when the latter is absent from the establishment; and is; and has b'eexi at
all times material to the issues, a supervisor within the meaning of the Act.
Harlow J. Sauer entered the Company's employ on October 12, 1955, and
worked for a period in the corrugator department. In March 1956 he was as-
signed to the position of "slitter operator" (an employee who operates a machine
called a "slitter") in the short order department, and given an increase in pay
that the change in his duties entailed. He held the classification of slitter operator
until May 9, 1958, when he was discharged (under circumstances to be described
later).
It is undisputed that after Sauer became a slitter operator, he was criticized or
reprimanded on a number of occasions by supervisory personnel in the plant. As
2 This proceeding stems from a charge filed by Sauer with the National Labor Relations
Board on May 12, 1958. The General Counsel of the Board Issued a complaint based on
the charge on July 11, 1958. Copies of the charge and complaint have been duly served
upon the Respondent. The Respondent has filed an answer which, In substance, denies
the commission of the unfair labor practices Imputed to it In the complaint.
8 One may gather from the Company's name that it is a corporation. The complaint,
however, does not allege that to be the fact, nor does the record clearly establish it.
WESTERN CORRUGATED, INC. 1025
Sauer conceded in his testimony, Alameda criticized his performance two or three-
times (apparently during a period spanning 1956 and 1957), telling him that he:
was not doing his work quickly enough. Gander similarly criticized Sauer's work-
on several occasions (once in February 1958, and probably two or three times.
during the course of the years 1956 and 1957).' On one occasion or another in
the course of such criticism, each of the two supervisors told Sauer that he would-
be discharged unless he did "more work or . . . better work," and he replied..
that he was performing to the best of his ability. Also, as Sauer testified, a fore-
man named Al Wilson "warned" him on one occasion to discontinue a practice
(followed by other employees as well, according to the sense of the testimony) of'
using working time prior to the morning rest period to make purchases from a_
"coffee truck" that customarily came to the plant. Beyond Sauer's testimony that
Wilson's admonition "could have" occurred in 1956 or 1957, there is no indication,
in the record of the date of the incident.
In June 1956 the Company and a labor organization identified in the record as.
Printing Specialties and Paper Products Union, Local No. 382 (referred to below
as the Printing Union) entered into a collective-bargaining agreement affecting the
Company's production and maintenance employees. By its terms, the contract
(subject to certain provisions for "reopening" not relevant here) was to remain,
in effect until June 15, 1958, and to be "considered self-renewing for yearly peri-
ods thereafter" unless changed or terminated by a procedure specified in the
agreement. With modifications not material here, the contract was still in effect
at the time of the hearing in this proceeding. Sauer became a member of the-
Printing Union at some point in 1956. Like the other employees subject to the
agreement, he was required by its terms, following the lapse of a specified grace
period, to "maintain membership in good standing in the [Printing] Union as a
condition of continued employment."
In 1957, "shortly before the contract was opened . . . for wage discussions,"
Sauer inquired of a business representative of the Teamsters Local whether "it
was possible to get the Teamsters into the plant then." The business representa--
tive replied, in effect, that the time was not a permissible one. On the evening,
of May 8, 1958, in another discussion with the agent of the Teamsters Local,
Sauer renewed his effort to interest that organization in replacing the Printing
Union as the bargaining representative of the Company's plant employees, and the,
upshot of the matter was that the business agent gave Sauer two forms of a "peti-
tion" for circulation among the plant's employees and the procurement of their-
signatures, with the ultimate aim of using the signatures to support a petition to,
the Board for a representation election at the plant,
Sauer took the forms with him when he came to work on the morning of May 9..
He arrived about 10 minutes before his regular starting time, and used the free-
time to display and circulate the forms among several employees, and to solicit-
their signatures, in an area of the plant reserved for smoking.
Reporting to his work station at 7 a.m., his scheduled starting time, Sauer was:
told by Foreman Goen that the slitter machine would not be operated that morn-
ing and that he was to assist the operator of a machine called a "partition
slotter" (also described in the testimony as a "parts machine"). The equipment,
which is located in the short order department, processes "little partitions" used"
in cartons as "inner packing for bottles." Usually, certain preparatory work,
'The incident in February 1958 Involved a disagreement between Gander and Saner-
over the length of time the latter took for a rest period one morning. On the occasion
in question, the superintendent, noting that Sauer was absent from his machine for about
10 minutes during a rest period, sought out the employee and asked him whether it was-
not time to resume work ; and Sauer replied in effect that the employees "usually take
fifteen minutes" for their rest periods, and that he still had 5 minutes remaining of his
period. Gander disagreed, stating that the employees were permitted a 10-minute "smoke,
break," He also told Sauer that the latter was "not doing enough- work" and was "too
slow" in performing certain functions. The Company concededly has no rule specifying-
the amount of time allowable for rest periods, and there are indications in the record
that its requirements in that regard are vague and flexible, and that employees usually
.take morning rest periods of 15 minutes. However, it is unnecessary to decide whether.
Gander's criticism was justified. The material point is that Gander, as r find, believed
that Sauer was taking too long a time and, acting on that belief, criticized Sauer.
Whether the supervisory criticisms of Sauer prior to the date of his discharge led to a
conclusion that his dismissal was lawful is another matter, and that will be determined-
later.
505395-59-vol. 122-66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known as "making the setup," must be done on the Blotter before it is put in
production to fill a given order. The operator of the machine is responsible for
this preliminary work as well as for the operation of the equipment. Basically,
the preparation involves the setting and adjustment of the machine parts, as needed,
for the processing, of "the particular order." Customarily, after an "initial setup"
is made, the operator tests the machine and makes such final adjustments as may
be indicated by the testing operations. The length of time needed for the
preparatory work is subject to variable circumstances such as, for example, the skill
of the operator and the extent to which the machine has been used; and, depending
upon circumstances, the preparation of the machine may take as little as 20 minutes
or as much as 21/2 hours. After the machine is ready, its efficient operation usu-
ally requires the services of at least two "tail-off men" in addition to the operator.
In the course of operation of the equipment, the operator feeds "stock" into the
machine at its front; the material emerges at the rear as groups of partitions; and
the "tail-off men," standing "in back of the machine," remove and stock the par-
titions as they emerge. It is also the duty of the "tail-off men" to fetch and
prepare the material used in the processing operation. There is no uniform re-
quirement that they be present at the slotter while the operator prepares the
machine. Sometimes they are not assigned to work at the slotter until the op-
erator completes all the preparatory work and "the machine is ready for produc-
tion." However, when Sauer was assigned to work as a "tail-off man" on the
slotter on the morning of May 9, he was told by Goen "to assist John Cabral
(the slotter operator) in making the setup." Cabral, it may be noted, had been in
the Company's employ for about a month, had been assigned to the machine as
a substitute for its regular operator, and was "fairly, new" to the equipment.
Sauer reported at the parts machine, as directed, shortly after 7 a.m. on May 9.
The slotter was new, and various of its parts "unusually tight"; and the preparatory
work took, all told, about 21/2 hours. In "making the setup," Sauer assisted
Cabral to the point where it was ready for testing by the operator. Cabral then
'proceeded to make several tests as a basis for final adjustments of the machine.
While the tests and final adjustments were being made, there was no work for
Sauer to do at or on the machine, nor any requirement that he work anywhere
else. This was also true of another "tail-off man" named Loesser who had also
been assigned to work at the slotter.
While waiting for Cabral to complete his work, Sauer left the area of the
tlotter and "took the petition" to several employees (presumably soliciting their
signatures). Upon his return, he saw that Cabral "was still making the final
adjustments on the machine," and he thereupon walked over to a machine known
as a "baler" to solicit the signature of the operator of that equipment for one
of. the petition forms. The baler was located about 25 feet from the partition
slotter, and each of the machines was visible from the area of the other. The
baler operator declined to sign the petition. As Sauer, who had been absent from
the Blotter for about half a minute, began to return to that machine, petition in
hand, Alameda, who was serving as acting plant superintendent that day and was
in the. vicinity en route from one department to another, intercepted Sauer and
engaged the latter in conversation. There is material conflict in the testimony as
to what was said.
According to Sauer, Alameda pointed to the petition; said that he did not wish
to read it, or to "see it out"; and directed Sauer to put the document away. Then,
Sauer testified in effect, he asked Alameda whether he 'could solicit signatures dur-
ing the lunch period, to which Alameda replied, according to Sauer, that he
"didn't want to see it (the petition) out on Company time or Company property."
With this, according to Sauer, Alameda motioned him to return to the partition
slotter and he complied.
In his initial version of the conversation, Alameda stated that he asked Sauer
what he', was doing; that the latter replied that "he was talking"; and that he
"(Alameda) then told Sauer "to get back to his, machine." Alameda repeated this
version at a subsequent point in' his testimony. Then, in response to interrogation,
he denied that he became' aware, while talking to Sauer, that the latter "was
seeking signatures to a union petition." He also denied that Sauer said anything
"about the lunch hour," and followed this with a denial that Sauer asked whether
he "could have people sign a petition during the lunch hour." Alarrieda's attention
was then directed to a sworn written statement he had -given a. representative of the
General Counsel on May 27, 1958,'and had executed on that date. In the affidavit,
'Alameda states- that Sauer asked him "if he could` have people sign ' the petition
during the lunch hour"; and that he (Alameda) replied in the negative "because
one of the departments works through the lunch hour." After-reading the affidavit,
Alameda testified that "the statement I made there is true ," and that he had not
WESTERN CORRUGATED, INC. 1027
been able to remember "some" of what had passed between him and Sauer because
the conversation had taken place 3 months -before his testimony . He then testified
that he was aware , while talking to Sauer, that the latter had "a union petition"
in his possession while he was at the baler ; that Sauer asked for leave to circulate
"the petition " during the lunch period ; and that permission was refused "because
some of the departments did work during the lunch hour ." (Actually, this is not
quite in harmony with the affidavit which states that the reason given was that
"one of the departments works through the lunch hour ." That section , according
to Alameda 's testimony at one point , is the corrugator department.)
I find myself unable to base findings on any of Alameda 's versions of the con-
versation . For one thing, his relevant testimony reflects substantial self-contradic-
tion. There can be no doubt that his initial version, at least , was materially in-
accurate, as he conceded in effect when confronted with his previous sworn
statement . For another matter, I have a substantial doubt, to say the least, that
the considerable disparity between Alameda's initial and ultimate versions was at-
tributable to a mere memory lapse, as he claims. One would think that interroga-
tion of Alameda, preceding the production of the affidavit, on the subject of his
.awareness that Sauer "was seeking signatures to a union petition ," whether anything
was "said about the lunch hour," and whether Sauer asked for permission to "have
people sign a petition during the lunch hour," would be reasonably sufficient to
prod Alameda's memory; yet the interrogation produced nothing but the unqualified
denials described earlier, and it was not'until Alameda was confronted with his
affidavit that his version of the conversation took a substantially different turn.
In any event, whether he had the memory lapse he describes or whether he de-
liberately omitted any reference to the petition prior to the production of the
affidavit , ' Alameda's self-contradiction on a highly important feature of the con-
. versation militates against acceptance of any of his versions of the conversation
as a basis for findings . What is more, Sauer 's account of what was said, with
respect to the petition sounds a more plausible note than Alameda's testimony,. on
the subject . In- his ultimate version , Alameda in effect pictures himself as telling
Sauer that the reason for the denial of the latter's request was that the corrugator
department's employees work during the lunch period . But.the plant as a whole
has some 80 employees ; it operates on a departmentalized basis; the corrugator
department . has a complement of only 8 employees ; and there is no indication in
the record that solicitation of employees outside that section of the plant would
-in any way. have interfered with the work- of -the relatively small group in the
department . The scope of the prohibition imposed upon Sauer is, in the absence
of any evidence to justify its breadth, a persuasive indicator that. Alameda was
.motivated by. a desire to prohibit Sauer's union activity rather than to prevent
interference with production or plant discipline. And the fact that such a motiva-
tion existed, as I find it did , contributes weight to Sauer's version, for, basically,
what Sauer's account portrays is a refusal by Alameda to permit him to solicit
signatures for his "union petition ," or, for that , matter, even to. display it, in the
plant . . Finally, as will appear later, Alameda 's testimony does not convincingly
explain some ' aspects of his behavior related to Sauer's discharge which followed
'a few minutes after the rejection of the latter's request to solicit signatures during
the lunch period . In short, for the , reasons given , I credit Sauer 's version of his
conversation with Alameda. '
It is undisputed that Sauer complied with Alameda 's instruction to return, to
the slotter ; and that a. few minutes after the conversation between the two, Alameda
came to - thevicinity of the slotter , beckoned Sauer to join him some distance, from
the -machine, and then discharged Sauer; but there. is conflict in the. evidence as, to
Sauer's position at. the slotter , and-the machine's operational . status, at the time
.Alameda beckoned to 'him . The conflict will, be resolved in a subsequent . section
of this Report:
On May, ^ 12,. 1958, the Teamsters. Local. filed with the Board a representation
petition affecting employees of the. Company. The objective of the petition,' HIS
evident,,was to:.bring -about.-the, replacement. of, the Printing; Union by the Team-
sters Local; as the representative of the employees in the plant. ..The Teamsters
:Local. withdrew the petition in :or about July 1958. In June .1958, while' the .pe-
tition•was, pending, the plant shut.. down for a; half hour to permit the Printing
:Union to- hold, a meeting of .employees on,the Company's premises.. ; On one.'oc-
:casion or- another, a similar ;privilege , was accorded the, Teamsters .. Local (Pre-
sumably, the meeting held. by. the organization, took place between.. the filing and
withdrawal of its representation . petition , although the record does not specify
,the date nor, for, that matter;, even the month when the meeting'',was held. At
also does not appear whether the meeting took place before or after that of the
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Printing Union.) Both meetings were held on time for which the employees in
attendance were paid by the Company.5
B. Concluding findings
The restriction imposed by Alameda upon Sauer, in response to the latter's re-
quest for leave to solicit signatures for his petition forms during the lunch period.
was in effect a blanket prohibition against such organizational activity by Sauer in
the plant under any circumstances. But, as the Supreme Court has pointed out,
"(n)o restriction may be imposed on the employees' right to discuss self-organiza-
tion among employees themselves, unless the employer can demonstrate that a
restriction is necessary to maintain production or discipline" (N.L.R.B. v. The
Babcock & Wilcox Co., 351 U.S. 105). There is no demonstration in the record
that the prohibition imposed upon Sauer was in any way necessitated by the
Company's production or disciplinary requirements. Certainly, the mere fact that
the corrugator department employees were scheduled to work during the lunch
period provided no lawful warrant for what was tantamount to a refusal by
Alameda to permit Sauer to use his lunch period and that of approximately 70
other employees to solicit the signatures of the latter on the Company's premises.
By that refusal, the Company interfered with the exercise of rights guaranteed
employees by Section 7 of the Act, and thereby violated Section 8(a)(1) of the
statute.6
The General Counsel takes the position that Sauer was discharged because he
engaged in union activity in the plant on May 9. Alameda testified that he dis-
charged Sauer because he "left his machine" to visit at the baler on the morning
of that date, and in support of that claim, the Respondent stresses the fact that
Sauer's performance had been the subject of criticism on prior occasions by plant
supervisors who had reprimanded and warned him? However, for reasons that
8 The record contains testimony to the effect that a "maintenance foreman" ( also de-
scribed as a "working foreman") named Sylvester Balemi and another maintenance em-
ployee whose name does not appear solicited the signatures of employees for a petition on
behalf of the Printing Union. Both the General Counsel and the Respondent presented
various phases of tb0 testimony, but the reason that either did so is far from clear. It is
not established that Balemi was a supervisor within the meaning of the Act, nor that his
soliciting activities or those of the other maintenance man have ever come to the atten-
tion of any supervisory superior of Balemi. Thus, the relevant testimony does not mate-
rially aid any position of the General Counsel. Obviously, also, the mere fact that Balemi
and the other maintenance employee engaged in union activities in the plant is in-
sufficient to negate a conclusion that the Respondent committed the unfair labor practices
imputed to it. -
E As indicated previously, Alameda not only rejected Sauer's request, but in effect
forbade the latter even to display the "union petition" on the Company' s premises.
I make no finding that this aspect of Alameda's prohibitory remarks separately violated
the Act, because the complaint does not allege such a violation. Nor do I deem it neces-
sary to decide whether Alameda had a right to prohibit Sauer from soliciting the signa-
tures of the corrugator department employees during his lunch period. The restriction
imposed upon him went far beyond such a prohibition. It may be noted in that connec-
tion, as a matter of interest if for no other reason, that there is no evidence that inter-
ference with production or the maintenance of discipline resulted from the soliciting
activities of Balemi and another employee on behalf of the Printing Union.
7 The Respondent presented testimony by Rose Brown, a business agent in the employ
of the Printing Union, to the effect that Gander had complained to her about Sauer "this
year [1958] sometime" ; that she informed Sauer of the complaint and told him "to
watch his step" ; and that she also notified Sauer (on two occasions, according to Brown)
that the management had complained "to the shop committee about his work." There is
no dispute that Brown spoke to Sauer in or about February 1958 about a "tail-off man"
who had been employed at the slitter usually operated by Sauer, had been discharged, and
had filed a grievance with the Printing Union. However, Sauer denied that Brown ever
talked to him about his own performance, and that she told him that the Company had
complained about it. Sauer freely admitted that Gander, Alameda, and Wilson had
reprimanded and warned him, and it seems reasonable to believe that he would similarly
admit that Brown had informed him of complaints against him, if she had in fact given
him such information. One may also bear in mind that Brown cannot be regarded as a
wholly disinterested witness, in view of her position with the Printing Union, the organiza-
tion that Sauer, shortly before his discharge, was endeavoring to replace with the
Teamsters Local as the bargaining representative of the employees. In short, with
WESTERN CORRUGATED, INC. 1029
will appear, the fact that Sauer had been reprimanded and warned previously by
supervisory personnel does not inevitably lead one to the conclusion that the reason
given by Alameda for the discharge is credible. An accurate guide to the moving
cause of Sauer's dismissal is to be found, in my judgment, in certain aspects of
Alameda's own testimony, to be noted later, and in an inspection of the evidence
relating to the scene at the slotter at the time Alameda summoned Sauer from
the machine to discharge him.
As stated earlier, there is conflict in the evidence as to Sauer's position at the
slotter, and the operational status of the machine, when Alameda beckoned Sauer
away from the slotter a few minutes after their conversation relating to circulation
'of the "union petition." According to Sauer, he arrived at the slotter, following
the conversation, as the machine went into production, and assumed the required
position "behind the machine to wait for the board to come out because it has
to stack up and it takes a couple of seconds for it to stack up." While be was
in that position, and "moments" after he had assumed it, Sauer testified, Alameda
beckoned him away from the machine and then proceeded to discharge him.
Cabral, who is no longer in the Company's employ (having left voluntarily) and
was called, under subpena, by the General Counsel, similarly testified that he
began to operate the machine "just as he (Sauer) got there," and that the latter
was in position "waiting" (for processed material to come through the machine,
according to the sense of the testimony) when he was summoned by Alameda.
Alameda testified that a few minutes after he told Sauer to return to the slotter,
following the latter's visit to the baler, he had occasion to pass the short order
,department and observed that the slotter was not in operation; that Loeser, the
other "tail-off man," was in the required position; and that Sauer "was on the side
,of the machine talking to Cabral" (about 3 feet from the position where Sauer
would stand to perform his "tail-off" work). It was at that point, according to
Alameda, that he "called (Sauer) away from the machine," and then told the
latter that he was being discharged.
Cabral's testimony is of obvious importance. As the operator of the Blotter,
be was in charge of the machine and thus was in a particularly good position to
know its operational status at the time in question. Moreover, it is undisputed that
his "associations" with Sauer have been limited to their work in the plant; and
the record presents no reason to disbelieve his relevant testimony .8 On the con-
trary, he impressed me as a credible witness, and the fact that he corroborates
Sauer contributes preponderant weight, in my judgment, to the evidence that the
Blotter was in operation, and that Sauer was at work, at the time Alameda mo-
tioned Sauer away from the machine. What is more, that conclusion is firmly
bolstered, as will appear, by some features of the record not previously described.
If some testimony Alameda gave is to be believed, his obesrvation that Sauer
was talking to Cabral precipitated his decision to motion Sauer away from the
machine and to discharge him8 This is not in harmony with the reason for the
dismissal entered by Alameda in Sauer's personnel record on May 12, 1958. There
Alameda wrote that Sauer was discharged because he "left his machine and visited
respect to the relevant evidentiary conflict, I am not persuaded that Brown's relevant
testimony possesses preponderant weight. Her testimony, in any event, is not decisive of
the issue of the motivation for Sauer's discharge.
8 Asked at one point whether he was "a good friend of Sauer's on the job," Cabral
replied, "I am a good friend of his, yes. He done no wrong to me." Considered without
regard to the rest of Cabral'% evidence, this might suggest that he and Sauer are "good"
friends, but I am satisfied, upon a total view of Cabral's testimony, that his "associa-
tions" with Sauer have been of a casual nature consisting of contacts in the performance
of tasks at the plant during the relatively brief period (about a month) of their common
employment there.
° In response to a question as to what precipitated his decision to summon Sauer from
the machine and talk to him, Alameda testified :
Well, I saw the machine was still not in operation and he was off to the side
there. I should say by the machine talking to Cabral.
Now my thought was this : I had just warned the man about not doing his job,
getting away from his machine, and so forth, and yet he did not go directly to his
station, which was behind the parts machine. He went to the operator's side to
start talking. .
It may be noted, incidentally, that in another part of his testimony Alameda stated that
following his first conversation with.' Sauer, he. proceeded to the press department and
did not "see if he [Sauer] went.therei[to'the slotterh or.not.".-.,This does notquite•square
with the assertion that Sauer "did not go directly to his station."
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other workers for personal reasons which has happened quite often, worker was
warned before." (Alameda testified that the statement that Sauer had "left his
machine and visited other workers for personal reasons" had reference to Sauer's
visit to the baler.) The indicated inconsistency or, in any event, the absence of
any reference in the personnel entry to any behavior by Sauer at the slotter itself
as a factor in his discharge, raises a serious question, at the least, whether
Alameda's description of the reason that prompted him to motion Sauer away
from the machine is anything more than an afterthought. Alameda's testimony
itself goes far to supply the answer to the question. Admittedly, he did not hear
what Sauer was talking to Cabral about at the time he claims he observed them
doing so; and it is a striking fact that, although Alameda asserts that the machine
was not then in operation, he made no effort, as he admitted, prior to discharging
Sauer, to ascertain either from the latter or from Cabral why the machine was
not in production, or what Sauer had said to Cabral. In fact, Alameda admittedly
has never spoken about the matter to Cabral. The singular nature of this course
of conduct becomes even more pronounced when it is borne in mind that Alameda,
who had at one time been foreman of the short order department, was fully
aware that Cabral was responsible both for the "setup" of the machine and its
operation. I think it strange indeed that Alameda, observing, as he claims, that the
machine was not in operation and that Sauer, a subordinate assistant at the equip-
ment, was talking to the man in charge of the machine, should attribute some
fault in the situation to Sauer without even so much as an effort to ascertain from
Cabral, or, for that matter, from anybody else, why the machine was not in opera-
tion, and whether, perchance, Sauer had been talking to Cabral in the line of
duty.'° I am persuaded, in sum, that the slotter was in operation, and that Sauer
was at work at the machine, when motioned away from the equipment by Alameda;
and that the latter's testimony to the contrary is no more than an afterthought.
The fact that this afterthought testimony was given bears materially, in my judg-
ment, on the credibility of the reason put forward by Alameda for this discharge,
and additional reference will be made to this factor at a later point.
In its brief, the Respondent argues, in effect, that the claim that union activity
by Sauer in the plant underlay his discharge is negated by testimony by Alameda
that he "didn't know what union [Sauer] was circulating the petition for," and by
the fact that the Respondent "granted both unions [the Printing Union and the
Teamsters Local] equal opportunity to conduct meetings on company time." In
view of Alameda's self-contradictions, and of other infirmities in his testimony, one
is justified in entertaining a doubt, at the least, that he was unaware that the peti-
tion he discussed with Sauer pertained to the Teamsters Local, but whether or not
Alameda had such knowledge, it is undisputed, and there can be no doubt, that
he knew on that occasion that the document involved was a "union petition," and
that he rejected Sauer's request for permission to solicit signatures for it .in the
plant during the lunch period. What. is more, the credited evidence of the con-
versation on that occasion warrants a conclusion that the Respondent, at least in
the person of Alameda, was quite concerned over, and hostile to, Sauer's efforts
to solicit signatures for his "union petition." Indeed, viewed against the background
of all the evidence, the discharge entry made by Alameda in Sauer's personnel
record implies the fact that Sauer was discharged because of his soliciting activities
on May 9. As noted • earlier;, the. entry states that. Sauer was discharged because
he "left his machine and visited other workers for personal reasons." Now it is
evident from Alameda's own testimony that when he spoke to Sauer a moment
or so after the latter's visit to the baler. he was aware that Sauer's "personal rea-
sons" for going to the baler were to solicit support for his "union petition"; and
it is thus only reasonable to conclude that the phrase " personal reasons" was
actually an allusion to Sauer's soliciting activity at the baler. What is more, there
is good ground for a belief that the entry also referred to the prior occasion when
Sauer left the slotter area to solicit signatures that morning, for it states that Sauer
was discharged because he "left his machine and visited other workers for per-
sonal reasons" [emphasis supplied]. In the face of the evidence of the Respondent's
hostility to Sauer's circulation of his "union petition ," and in view of the violation
of the Act that the prohibition imposed upon him by Alameda entailed , it seems
10 It is also noteworthy that although Alameda claims that soon after his first con-
versation with Sauer on May 9, he informed Foreman Goen that he "had Just told Sauer
to report back to his machine [the Blotter] and if he left it again to take action toward
him," there is no evidence that Goen (who, incidentally, was not produced as a witness)
found any fault with Sauer at any time on May 9. In that connection, it may be borne
in mind that Goen had only about 13 employees to supervise.
WESTERN CORRUGATED, INC. 1031
to me to be a venture into the irrelevant to say, as does the Respondent in its
brief, that "[t]his is not the typical case of an employer with an anti-union history,
who embarks upon a controversial program designed to impede a union ." More-
over, granting that this is not such a "typical case," it is an unfortunate fact that
from time to time one encounters a situation where an employer with a history of
collective bargaining with one labor organization undertakes to discourage interest
by his employees in another union, and commits unfair labor practices in the
process." Also, it seems to me that the Respondent, on the basis of the record,
reads too much into the fact that it accorded the Teamsters Local, as well as the
Printing Union, an opportunity to hold a meeting in the plant "on company time."
The proof on the subject is scant, for it contains little, if any, information as to
the circumstances in which either union was given permission to hold its meeting.
Indeed, it is even impossible to determine from the record whether the Teamsters
Local was granted the opportunity to hold its meeting before or after the charge
in this proceeding was filed. In any event, one can think of a variety of situations
in which permission to hold either meeting would not be inconsistent with a
conclusion that Sauer was discharged because he undertook to organize sentiment
among employees in the plant in favor of a union other than the one with which
the Respondent had collective-bargaining relations; and, particularly in the posture
of the evidence pertaining to the meetings, it would be a mistake to accord that
evidence decisive weight in evaluating the Respondent's motivation for the discharge.
Turning to definitive findings as to the legality of the discharge, there is ample
reason to conclude that it was unlawful apart from the fact that the discharge entry
made on Sauer's personnel card, construed in the light of Alameda's knowledge of
Sauer's "personal reasons" for visiting "other workers" on May 9, points in that
direction. The claim made by Alameda in his testimony that he discharged Sauer
because the latter "left his machine" to visit at the baler assumes a flimsy posture
when viewed in the light of the whole record. Upon such a view, to be sure, one
encounters the fact that Sauer had been reprimanded or warned by supervisory
personnel some half-dozen times over a period of about 2 years, but one must not
permit this evidence to obscure the hard and important fact that Sauer committed
no transgression when he left the slotter on the morning of May 9, while Cabral
was adjusting the machine, in order to solicit the signature of an employee at the
baler some 25 feet away. As Aalameda in effect conceded, the Company had no
rule prohibiting employees from using working time in the plant to solicit "among
themselves" with respect to union matters; and it is undisputed that there was
actually no work for Sauer to do at the time he left the slotter, and while he was
gone. Significantly, also, as the credited evidence establishes, when Alameda spoke
to Sauer the first time on May 9, the acting superintendent did not rebuke Sauer
because he had absented himself from the slotter; rather, what he did, in effect,
was to forbid Sauer to solicit signatures for his petition, or even to display it, on
the Company's premises. In other words, Alameda reacted not to Sauer's absence
from his work station, but to his organizational activity. This factor, particularly
when coupled with the undisputed evidence that there was actually no work for
Sauer to do at the time in question, points to a conclusion that the discharge
which came a few minutes later was rooted in the union activity rather than in
the fact that Sauer had "left his machine." That conclusion becomes inescapable,
it seems to me, when -one takes into account Alameda's untenable claim to the
effect that his decision to discharge Sauer was precipitated by the sight of the
latter standing by the side of the Blotter (only about 3 feet from Sauer's "tail-off"
position, be it noted), "talking to Cabral," while the machine was not in opera-
tion. The reasons that persuade me that this testimony is an afterthought need
not be repeated here, but it is not amiss to note again that Alameda's claim to
the effect that the scene at the machine at the time in question precipitated the
discharge does not quite jibe with the entry in Sauer's personnel record that he was
dismissed because he "left his machine and visited other workers for personal
reasons." The disparity is reminiscent of other self-contradictions in Alameda's
testimony, to which previous reference has been made, and, like the others, reflects
upon the reliability of his evidence. What is more, the very fact that Alameda gave
the afterthought testimony to bolster the contention that Sauer was discharged for
lawful cause indicates an awareness by him that the claim that Sauer was dismissed
because he "left his machine" is flimsy, and bespeaks a disposition to conceal an-
other motivation for the discharge.
As examples of such conduct in varying situations, see Holme & Seifert, 102 NLRB
347; The Englander Company, Inc., 118 NLRB 707; Detroit Gasket and Manufacturing
Company, 78 NLRB 670; National Carpeting Division, National Automotive Fibres, Inc.,
116 NLRB 1446.
1032 DECISIONS OF NATIONAL; LABOR RELATIONS BOARD
In the light of what has been said above, I do not credit any of the reasons
::advanced by Alameda for the discharge. On the contrary, a total view of the
record persuades me that within a matter of minutes after Alameda told Sauer "to
put it [the "union petition"] away," and that he did not "want to see it out on
Company time or Company property," and rejected Sauer's request for permission
to solicit signatures during the lunch period, the Respondent decided to discharge
Sauer; and that the reason for the decision was that Sauer had engaged in the
-activity of soliciting signatures for a "union petition." 12 I find, in sum, that by
-discharging Sauer the Respondent discriminated against him in violaton of Sec-
ton 8(a)(3) of the Act; and interfered with, restrained and coerced employees in
the exercise of rights guaranteed them by Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
-connection with the operations of the Respondent described in section I, above,
.have a close, intimate, and substantial relation to trade, traffic, and commerce
-among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices viola-
tive of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and
-desist therefrom and take certain affirmative action designed to effect the policies
of the Act.
The Respondent's unfair labor practices strike at the heart of rights guaranteed
employees by Section 7 of the Act.13 The rights involved are closely related to
-others guaranteed by Section 7. In view of the nature of the unfair labor prac-
tices found above, there is reasonable ground to anticipate that the Respondent will
infringe upon such other rights in the future unless appropriately restrained.
'Therefore; in order to make effective the interdependent guarantees of Section 7,
I shall recommend an order below which will in effect require the Respondent to
refrain in the future from abridging any of the rights guaranteed employees by
-said Section 7.14
Having found that the Respondent discharged Harlow J. Sauer on May 9, 1958,
in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the
Respondent offer him immediate and full reinstatement to his former, or a sub-
stantially equivalent position without prejudice to his seniority and other rights and
privileges,15 and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him, as found above, by payment to him of
-a sum of money equal to the amount of wages he would have earned, but for the
said discrimination, between May 9, 1958, and the date of a proper offer of rein-
-statement to him as aforesaid; and that the said loss of.pay be computed in accord-
12 Alameda claims that before he dismissed Sauer, he did not discuss the discharge "with
anyone at all." The sense of this Is that he did not consult the president of the Company
(identified in the record as "Mr. Fefley") or any other superior regarding the decision
-to dismiss Sauer. In evaluating the credibility of this claim, one may bear In mind the
infirmities In Alameda's testimony on major aspects of this proceeding, including the fact
-that, although he asserts that he discharged Sauer because the latter "left his machine."
he does not satisfactorily account for the fact that he did not dismiss Sauer at the time
of their first conversation on the morning of May 9, but discharged him some minutes
later, after he had taken his place at the slotter. In any event, it matters not whether
-the decision to discharge Sauer was .Alameda's or that of another management representa-
tive, for, in either case, the basic fact is that the motivation for Sauer's discharge was
:rooted In his union activities in the plant.
17 See N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C,A. 4).
14 See May Department Stores d/b/a Famous-Barr, Company v. N.L.R.B., 326 U.S. 376;
Bethlehem Steel Co. v. N.L.R.B., 120 F. 2d 641 (C.A., D.C.).
1G In accordance with the Board's past interpretation, the, expression " former, or a sub-
stantially equivalent, position" is intended to mean "former position wherever possible,
but if such position is no longer in existence, then to a substantially equivalent position."
See The ,Chese,National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
TRANAAMERICAN FREIGHT LINES, INC. 1039
ante with the. formula, and method ; prescribed . by the . Board in F. W. Woolwortlr
Company, 90 NLRB 289 , to which the parties to this proceedings are expressly_
referred. - A
Upon the basis of the foregoing findings of fact , and upon the entire record in
this proceeding , I make the following.!
CONCLUSIONS OF LAw
L. Western Corrugated, Inc., is, and has . been at all times material to this pro--
ceediigg, an employer within the meaning of Section 2(2) of the Act.
2. Warehouses Union Local Na . 12, International Brotherhood, of Teamsters, is,
and has been at all times material to , thia, proceeding , a labor organization within
the meaning- of Section 2(;5)1 of the Act.
3. By discriminatorily discharging Harlow J . Sauer, as -found - above; the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean -
ing of Section 8 (a) (3) of the Act.
4[: By interfering with;, restraining , and coercing employees, in the exercise of'
rights guaranteed. them by Section. 7 of the Act , as found above „ the said Re-
spondent has, engaged in and is engaging in unfair labor practices ' within -the-
meaning-of Section • &(a)(1.) of the, Act.
5.. The- aforesaid unfair labor practices are unfair labor practices affecting com-
mercer within the Ineaning of Section 2(6') and (7 ) of the Act.
[Recommendations omitted from publication.]
Transamerican Freight Lines , Inc. and Automotive Mechanics'
Lodge- No. 510, International Association of Machinists, AFL-
€C1O. Case No. 13-CA-534. January 21, 1959
DECISION AND ORDER
On September 10, 1958, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above-entitled proceeding,,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices in violation of Section 8(a) (1), (3),•
and (5) of the Act and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting'
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its. powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
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
Intermediate Report,' the exceptions, the brief, and the entire record''
The name of the Respondent's district. manager is incorrectly spelled "Cleveland" in
the Intermediate Report. The correct spelling is "Cleaveland ." The report is corrected
accordingly.
g The Respondent's request for, oral argument is hereby denied as the record , exceptions,
and.brief adequately present the issues and the positions of the parties.
122 NLRB No. 126.